Fair administration of justice

Pete Silva hates the idea that a person could suffer the loss of his freedom because they have been convicted of a crime they didn’t commit.
The Tulsa County Chief Public Defender acknowledges that Oklahoma has taken steps in to ensure that justice is fairly administered, but that a lot of work still needs to be done — work that can be completed inexpensively. The results would save the legal system time and money.
Silva was responding to remarks made by U.S. Attorney General Eric Holder when he accepted the Brennan Legacy Award during the Brennan Legacy Awards Dinner in November.
Holder, during his speech, said he doubted that anyone attending the banquet would not make every effort to call and hire a great lawyer if their son, daughter, niece or nephew had been arrested and charged with a crime.
‘‘You certainly would never allow your child to plead guilty and face the possibility of jail time without first speaking to a lawyer,’’ he said. ‘‘You would not stand by if someone in your family was made to wait weeks, even months, before getting access to a lawyer could fight for his or her release. It may be hard to believe, some of our fellow citizens suffer through circumstances like these every single day.’’
Holder went on to cite specific incidents where people effectively were denied justice and they irritated Silva.
‘‘It is outrageous to think that someone would wait in jail for weeks without counsel,’’ Silva said. ‘‘It is even more incredible that a 50-year-old woman charged with shoplifting would be in jail for 11 months before seeing a lawyer.’’
“I don’t know how any jurisdiction could have someone in custody for weeks and months and not have them contacted for legal representation,” he said. Since the Oklahoma Indigent Defense System has been established, each judge is charged with making regular inquiries as to whether or not someone charged with a crime needed legal representation.”
Judges are not left with an option about that responsibility, Silva said. That was enforced in Tulsa County during the 1970s when the county jail was on the eighth and ninth floors of the courthouse. It was a rule of the court that someone from this office and generally a legal intern, accompanied by a deputy, stopped at each pod and ask if someone was not represented by an attorney. If someone was found without representation, they were immediately placed on the arraignment docket to start getting them through the legal system.
When the jail system was operated by CCA, there was a signup sheet available for people needing representation by counsel.
In recent years, and with the help of computers, it no longer is a requirement that daily surveys be taken to find people who might have fallen through the cracks of the legal system, Silva said. Either private counsel or a representative from the public defender’s office is assigned as soon as possible.
The Tulsa Public Defender would speak only to Tulsa and Oklahoma Counties where steps are taken to be certain that no one fell through the legal system cracks and did not receive access to justice.
Oklahoma’s efforts started in 1971 when the state legislature passed laws approving the Public Defender’s office, authorizing attorneys and staff be hired in the state’s two most populous counties.
That first year there was a total of six attorneys, one investigator, and two secretaries authorized in Tulsa. Today that number is 39 attorneys, four investigators, 22 interns who are part-time law students and 13 secretaries in the staff.
Someone in this group is involved after a person in Tulsa County is arrested and placed on the arraignment docket.
State law requires that a person be arraigned on charges within 24 hours after their arrest and bond and they can be released if the required bond is raised. The exception is in homicide cases where no bond is allowed. Generally speaking, the district attorney has six days to have a charge filed and if that doesn’t happen, the person is released unless a violent crime is involved.
Arraignments in Tulsa County are conducted by television with the judge in the courthouse and the person accused of a crime in the David L. Moss Correctional Center.
It is during the arraignment the person is asked if they are represented by counsel, Silva said. If not, the jail staff is instructed to give them forms that must be filled out.
At the next arraignment the judge, who has the recently completed papers, asks the person, under oath, if the information is correct. If the person is lying they also face perjury charges in addition to the crime they have been charged with committing.
Preliminary hearings generally are set three weeks after the arraignment, a time that gives families time to meet with attorneys and investigators. Required police reports also are to be provided to the defense within two weeks of the appearance.
It is during this time the legal intern from the public defender’s office meets with clients to review the specifics of the charges that led to the arrest. The work is done under the supervision of an attorney who is informed about everything the client has said.
Case loads sometimes prevent a public defender from meeting with a client until just prior to a hearing, Silva said. ‘‘When that happens, they meet in a holding area. This is not my preferred method, but that happens when an average of 3,500 new cases are assigned this office annually.”
Despite the heavy workload, the Tulsa Public Defender’s Office as well as the Oklahoma City counterpart have not lost personnel due to state budget cuts.
But it has been made perfectly clear to Silva that no new positions in the department would be funded. That means the attorneys will continue to handle juvenile matters, felony cases, domestic violence cases and other matters without the prospect of additional help. It’s nothing new, they have been under that workload for years.
The American Bar Association suggests that the Public Defender’s Office attorneys should have 150 cases annually.
Silva admits he likes the ABA case load idea, but money remains the key.
“The chance to reach the ABA numbers probably is zero,” he said, “at least in my lifetime.”
Each attorney generally averages 250 to 300 cases annually.
“That idea is not even in the budget,” he said. “Mine (budget) is the same as last year. This staff has not received pay increases for the past two years. I am very grateful to Supreme Court Justice James Edmondson and Court Administrator Mike Evans for their commitment to the Public Defender’s system.’’
The Supreme Court funds this office and 99 percent is used for salaries, Silva said. “The legislature funds the courts. My budget is submitted as part of the 14th Judicial District and it is a large item.’’
The Tulsa County Public Defender’s office has a group of attorneys with experience levels varying from 30 years to as little as three or four years. They work together as a team with the more experienced mentoring newer members.
When it is time to go to court, the younger attorneys observed their experienced counterpart, Silva said. When it is their turn to handle a trial, then the experienced attorney is there watching and offering support.
Everyone helps the other and no one says they won’t provide requested assistance, Silva said. “Every case that comes into this office is my case whether I know it is here or not. If someone is not willing to help a fellow attorney, it is the same as looking at me and saying they won’t help me. My attorneys are not in competition with each other. They have nothing to fear in their positions with providing the requested help. The biggest risk they have in their positions is not helping.’’
This office always has had a great staff that has been willing to work weekends and holidays to prepare for court.
Regular office meetings are held to keep everyone aware of what is coming down from the Supreme Court and it also is a good opportunity for some mini CLE (Continuing Legal Education) classes, he said. Those classes cover topics varying from jury selection to being able to challenge testimony presented by witnesses.
Experience plays an important part in preparing cases, he said. “I look at the time it took for me to prepare my first armed robbery case 35 years ago. It would take as long now because I know where to go, keeping in mind that there are only so many ways an armed robber can be committed.”
Experience helps evaluate a case and the attorney knows where to look up relevant rules of law.
It will take some changes in state law to ensure that procedures are followed throughout the state.
North Carolina, through legislation, is taking the lead nationally by requiring all police interrogations be videotaped to prevent the ‘‘I said, he said, I didn’t say that’’ scenarios when testimony is questioned in court, Silva said. Utilizing this technology can save the legal system money by preventing unnecessary trials and the state money should a wrongful imprisonment case be lost.
One of the first steps would be to video tape interviews between police officers and the suspect in a crime.
Tulsa County authorities do a good job video taping interviews.
Videos or tape recording is a single step that eliminates a person requesting an attorney being told that “a lawyer would do them any good,” Silva said. It also would prevent the promise that if the person admitted to the crime they could go home. If a confession is obtained, that person isn’t going home.
Other steps need to be taken.
High on the list is the positive identification where witnesses are asked to look at a series of photos to identify a suspect. The real solution is to have someone not associated with the investigation show the pictures. That would eliminate any possible language — verbal or body — that one of the people might be the suspect and influence the witness.
Even the most ethical law enforcement officers sometimes fall victim to influencing suspects and witnesses during the intensity of an investigation, Silva said. A miscue could be as simple as not having a DNA test conducted.
Hopefully, a program can be developed that will ensure that these officers can get a good nights sleep knowing they have the good guys in jail and innocent people are free.
Oklahoma has had cases where innocent people have been freed after being in prison for many years, Silva said. There can be a monetary compensation for the miscarriage of justice, but regardless of the payout, it is a small amount compared to the loss of personal freedom for so long.



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