It is that time when the old year rolls over into the new. I often am in a reflective mood during this time. My annual tradition is to write in my journal on New Year’s morning, reflecting back and projecting the resolutions for the new year. This year, I am even more reflective, since I am stepping down as the Executive Director of NAPD on December 31. I have taken this occasion to think about the first seven years of NAPD, and all that we accomplished as a public defense community.
Three public defenders had the original vision. At the beginning, there were three public defenders at a meeting. Mark Stephens, Tim Young, and Ed Monahan began a series of conversations about whether public defenders needed a new organization, one just for them. After a few months, I joined them for two days of thinking at Kentucky’s Department of Public Advocacy about what a new organization might look like. I was uncertain about whether a new organization could be sustained after the initial spark had dimmed, the enthusiasm quelled. We decided to find out if the interest was there and scheduled a meeting at Dayton Law School for September of 2013. We invited forty or so public defender leaders asking them to meet on September 8 and 9. Ira Mickenberg helped us secure the law school’s facility. We waited to see what happened.
Mark Stephens wrote it all down. In the meantime, Mark Stephens set his vision down on paper, which you can find here. I encourage you to read it, to see what the original thinking was. A couple of things jumped out upon rereading. Mark noted that 2013 was Gideon’s 50th Anniversary, and that it was appropriate to establish a new organization as “catalysts for change.” He also said there were 15,000 public defenders in the US. NAPD now has over 22,000 members!
One paragraph particularly stuck out. It is still a pretty good vision for what NAPD intended and what it has done since its inception. “The NAPD will be the unwavering voice for public defenders and public defender leaders across this country. It will be the advocate for all things regarding the right to counsel. It will advocate for the people we represent, as well as for public defenders themselves. NAPD will educate and support public defenders and those working in related disciplines engaged in the work of indigent defense. Whether providing counsel and direction regarding systemic development, effective legislative strategies, systems management, IT development, workload/caseload expertise, litigation and appellate skill-set development, or administrative and leadership training, support and development, the NAPD will stand ready to provide the needed expertise and experience to indigent defense providers and policy makers.”
NAPD was established with concrete values. Mark stated that NAPD would be committed to justice, the dignity and worth of every person, competent and zealous representation, fidelity and loyalty to the client, and visionary and effective leadership.
There was energy and enthusiasm at Dayton Law School in September of 2013. To our delight, almost forty chief defenders showed up for two solid days of meeting, disagreeing, and visioning. We went around the big courtroom at Dayton Law School and asked each person what they thought NAPD could be. What follows is a sample of what was said. I said that I wanted an organization that will attack high caseloads, stagnant salaries, and the burdens of student loans. Jeff Adachi, the elected San Francisco Public Defender who has tragically passed from us, said that he was interested in having an organization “that will have a big impact nationally.” Cat Kelly, Missouri Public Defender, saw the need for a “concerted strategy on the caseload issue nationwide. We need a nationwide strategy.” Phyllis Subin, former New Mexico Public Defender via the Public Defender Association of Philadelphia, wanted a “new organization to restore devotion to the national standards of professionalism.”
Bob Boruchowitz, formerly of one of the four of Seattle’s nonprofit defenders and then Professor at Seattle Law School, noted the energy in the room, the combining of state and federal defenders into one organization, and the hope for attacking excessive caseloads and encroachment on independence. Tom Maher, chief public defender of North Carolina, expressed a desire to support private lawyers representing poor people. Larry Landis, then director of the Public Defender Council, said that he was “tired of being an enabler and an apologist for inadequate representation.” Anthony Benedetti, now the chief defender from CPCS (Massachusetts), said that there was a need for “an organization that can speak loudly when disinformation is occurring with prosecutors and political officials.” He too wanted to give private lawyers a voice. Nancy Bennett, also from CPCS, was “excited about the opportunity to reach out to assigned counsel attorneys.” Dawn Van Hoek, Michigan Appellate Defender, expressed that she was “mad as hell” about the distribution of JAG/Bryne money, and hoping NAPD could have “more of a voice in determining where money goes.”
Jeff Sherr, Kentucky DPA Training Director, expressed excitement about the “ability to get the power, freedom, and responsibility to an organization that will be proactive.” Lane Borg, then the Portland Chief Defender and now the Oregon Chief Defender, expressed the need for funding for his organization. Tina Luongo, now the Chief Defender with New York Legal Aid, expressed a desire for an organization that would “focus on the dialogue” and “moving the agenda.” Beau Rudder, Mississippi Public Defender Training Director, said he wanted to create a “sense of community” and an organization that would “effect some change.” Paul DeWolfe, Maryland Public Defender, said that there was a “small army of legal talent“ and that he wanted public defenders to “create real power.” Kira Fonteneau, then the Chief from Birmingham, Alabama, was there to learn how to set up her new office.
Rick DiMario, a Miami public defender, wanted to support a national organization to move us toward beating excessive caseloads. Bill Leahy, formerly of CPCS and now the head of New York OILS, expressed the desire to combine public defenders and private counsel into an organization. Bill also called for a National Center for Indigent Defense and hoped that NAPD could lead that effort.
Others in attendance were Dawn Deaner, Jean Faria, Mary Moriarty, Ira Mickenberg, Leo Smith, Julie Ferris, Stephen Bush, Robert Womble, Charlie O’Brien, Matt Knecht, Lindy Frolich, Jennifer Bias, Dennis Keefe, and Bob Hill. I’m sure there were others who didn’t end up in the picture or the notes from the meeting.
We set out to serve not only lawyers but all public defense professionals. One of the decisions made in Dayton was to name the new organizations the National Association for Public Defense, rather than the National Association of Public Defenders. This was no small matter but was an explicit affirmation of the role of all public defense professionals and the desire to serve them all. That commitment has continued to this day.
Some brave souls agreed to lead NAPD in its first year. At Dayton, twelve people were chosen to become a governing body for NAPD. They agreed to serve for the first twelve months. They were as follows: Tim Young, Mark Stephens, Ed Monahan, Anne Daly, Nancy Bennett, Cat Kelly, Jeff Adachi, Rick Jones, Derwyn Bunton, Carlos Martinez, and a nonlawyer to be selected by the Steering Committee as well as a “federal person” and an investigator.
We decided that dues should be kept around the price of dinner for two at Carino’s. Dues were fixed at $20 person so that cost would not be a barrier to anyone. An organizational membership was capped at $5000 for the largest organizations. Keeping dues low has remained a value for NAPD.
We would have accomplished very little without Heather Hall. From September of 2013 until June of 2014, I essentially did everything related to NAPD. I started picking up checks from our new post office box and took them to a local bank. I kept the books, I communicated with new members, I facilitated meetings, I drove to Ohio and Indiana and Illinois and fly to Miami to recruit new members. I ran myself ragged. So I soon made one of my most important decisions: I recommended to the Steering Committee that we hire Heather Hall, who had been with the Louisiana Public Defender Board and with ACLU before that in New Orleans. Heather soon brought the competence, energy, and creativity that define her and that has lasted to this day. She has been crucial to obtaining grants, engaging all professionals in NAPD, and staying true to the original values set in Dayton.
We grew and we grew. In those first few meetings, we thought if we could attract 1000 people to NAPD, that would be a success. We thought that if we reached 5000 by the end of 2015 that would continue our momentum. Instead, we grew unexpectedly, totaling over 10,000 by the time of the first annual report in 2014. Today, we have grown to over 22,000 members and over 130 organizational members. And the sky is the limit. There are many public defenders in unstructured systems all over the country who would greatly benefit from NAPD membership.
The public defender library was born. NAPD had a website before it formally opened its doors in January of 2014. Issac Merkle, the tech guru at the Knox County Public Defender’s Office, developed NAPD’s website. MyGideon was provided through a project of the Charles Hamilton Houston Institute at Harvard prior to NAPD’s beginning. Rob Smith encouraged and supported NAPD developing it beyond what he started and Kentucky and Massachusetts developed.
Alex Bassos, formerly of the Portland Public Defender’s Office and Steering Committee member, also began to populate MyGideon with materials. Kentucky DPA and Massachusetts’s CPCS had been using MyGideon for years prior to NAPD, as had Gideon’s Promise, and their materials were transported over to the NAPD’s MyGideon. MyGideon soon became the Public Defender Library as those materials plus an increasing number of recorded webinars and numerous other pages were added. You’ll need a password to use MyGideon, which is located here: https://www.mygideon.org/.
We are resisting. In January of 2015, a galvanizing event occurred when Jami Tillotson of the San Francisco Public Defender’s Office put her body between her client and the police who wanted to question him at the courthouse. She was handcuffed in front of her client and later handcuffed to a bench in the central booking area for more than an hour. Jeff Adachi, San Francisco Public Defender, released a video on YouTube that was watched more than 1.5 million times. “The response from NAPD was swift and impassioned. Jami’s poise while asserting her client’s rights energized the NAPD community. Members sent letters, wrote blog posts, shared media, and mounted a spontaneous ‘I am resisting!’ campaign to show their support. Many advocates identified with Jami’s experience, and applauded her professionalism under fire.” NAPD was for that time The Voice, indicating great potential for NAPD to do more. For more, see the 2015 Annual Report
NAPD has been outraged by police killings since our earliest days. No look-back of NAPD’s first seven years would be complete without reference to the racial reckoning that has hit the country and the public defense community. NAPD’s first statement on police killings was made during its first year of existence on December 19, 2014, in response to the killings of Michael Brown, Eric Garner, and Tamir Rice. We said, “Our system of justice is broken. It is racially biased to a degree that it is unworthy of public confidence. This lack of confidence is now being experienced on a grand scale in jurisdictions across the country, creating an urgent need to address the many unfair policies that oppress all people of color and every community of color in this country… Public defenders are the most consistent witness to the individual and systemic unfairness of our justice system. The nearly 9,000 public defenders and defender-advocates of the National Association for Public Defense stand ready to join with others fighting for justice in furtherance of a fair and equitable criminal justice system.” The full statement can be found here: Statement on Michael Brown and Eric Garner. Tragically, the killings have continued unabated, with the murder of George Floyd being the seminal event of 2020, one of four that caught our attention, including Ahmed Arbery, Rayshard Brooks, and Elijah McClain, completing a horrific group of illegal police and civilian killings. NAPD’s Executive Committee wrote this statement on June 9, 2020, saying “ NAPD commits itself to reflect anti-racist principles, policies, and practices and lead through a racial and ethnic justice lens. We strive to be an explicitly anti-racist organization, as we build a bold vision for our organization and for the role of public defense in creating a more just and equitable future.” The statement can be found here. Black Lives Matter Statement_June 9 2020. Shortly thereafter, yet another killing of a Black man occurred, resulting in this statement in part on August 26, 2020: “The National Association for Public Defense (NAPD) is outraged by the police shooting of Jacob Blake, and reiterates its support for both the Black Lives Matter movement and comprehensive police and criminal justice reform. It is appalling to again be grieving the shooting – in the back – of a Black man by police. For the past 3 months since the killings of George Floyd, Rayshard Brooks, and Breonna Taylor, in communities across the nation, rural and urban, hundreds of thousands of people have participated in publicly demanding a commitment to policy, training and resource decisions that acknowledge the experience of Black people and affirms that their lives matter. We have joined you; we stand with you now.” The full statement can be found at Jacob Blake_NAPD Statement_8 25 2020.
NAPD stood up and opposed the nomination of Jeff Sessions. Donald Trump was elected in November of 2016, and soon nominated Jeff Sessions as the nation’s Attorney General. Civil rights organizations from around the country spoke out in opposition to the nomination. NAPD was the only criminal defense or public defender organization in the country to join them. We said in part that “We strongly oppose President-Elect Trump’s nomination of Senator Jeff Sessions to become the next United States Attorney General. By his own words, actions and failures to act over the course of many decades, continuing uninterrupted down to the present day, Senator Sessions has demonstrated that his views on both criminal justice and mass incarceration are not only extreme, but also far outside the strong bi-partisan consensus that has emerged in support of significant reform of both our broken criminal justice system and our nation’s failed policy of mass incarceration.” The full statement can be found here: NAPD Statement Re Sessions Nomination 1 19 17)
We have strived to be the voice of public defense. The desire to be the voice of public defense began in Dayton and continues to this day. For the most part, being the voice has meant drafting and passing statements that have been sent to the media or that have been mailed to governing officials. We have spoken out on the predatory collection of fines and fees, on judicial independence, on the 2016 election, on decriminalization, on the use of pretrial risk assessments, on forensic sciences, on the selection of public defense leadership, on public defense staffing, on virtual court technology, on active supervision, on proper professional space, equipment, confidential communications with clients, supporting services for public defense, and for what we believe should be the criminal justice policies of the Biden administration. These can be found in full here: NAPD Positions Papers.
In addition to these statements, we have often sought to intervene in situations that have been offensive to NAPD’s values. These have included a letter to the Fresno County, California Board of Supervisors regarding excessive caseloads, a letter to the Carson City Manager opposing his consideration of flat fee contracts, a letter to BJS objecting to their inaccurate reporting on public defense, a letter to the Humboldt County, California Board of Supervisors, a letter to Governor Mario Cuomo encouraging him to intervene on the issues in Hurrell-Harring, a letter advocating for a fair trial for James Holmes, a letter requesting a federal investigation of the Orange County DA’s and Sheriff’s Offices, a letter supporting Jose Padilla’s pardon petition, a statement on the use of virtual technology during COVID, and a best practices guide for investigators during COVID. All of these can be found in our Actions Taken.
If you’re going to reform public defense, you need to train the leaders. Within a year of our beginning, NAPD decided to try to change the culture of public defense by training chief defenders. The first Executive Leadership Institute was held in the summer of 2015. 58 chief defenders were trained. In 2016, the focus shifted to training managers and supervisors. This one was much larger and was again held at Valparaiso Law School. The following year, we moved ELI, as it came to be called, to the Kentucky Department of Public Advocacy training facility in Frankfort, Kentucky. These were highlighted by a social event accompanied by a tour and tasting at Buffalo Trace Distillery. These were repeated in 2017, 2018, and 2019, and each year we reached more leaders of all stripes. In 2019, we also held an ELI in Austin, Texas in the summer, and Los Angeles, California in December. COVID hit in February 2020, and the ELI scheduled for April was cancelled. NAPD is now planning on a resumption of live leadership training in the fall of 2021.
Attacking excessive workloads has been a constant concern of NAPD since its inception. Excessive workloads were the predominant issue that caused public defenders to come to Dayton and initiate NAPD. In short order, NAPD held a Workload Leadership Institute in Lexington, Kentucky during 2014. This is described in the 2015 annual report as follows: “During 2014, NAPD co-sponsored the Workload Leadership Institute, bringing more than 60 leaders from around the country to a three-day training in Lexington, KY. NAPD was able to provide scholarships to 22 defender-leaders who were committed to ending excessive workloads in offices that have been historically underserved by national training opportunities.” NAPD_annualreport-2014-FINAL.pdf (publicdefenders.us). Another workload conference was held at the St. Louis University Law School several years later with even more defenders in attendance. The Workload Committee continues to focus on the virtually intractable issue of excessive public defender caseloads, and has been led by Steve Hanlon, Mark Stephens, and Mary Fox.
Building better systems has been another priority. Our second most active committee has been the Systems Builders Committee. This committee lives up to its name; it is dedicated to building public defender systems that are excellent and independent. It has been skillfully chaired by John Stuart, Bill Ward, and now Doug Wilson. One of its primary tasks has been to conduct assessments of systems with the goal of improving them. These assessments have been conducted in the 16th JDC of Louisiana, RPDO in Texas, the Capital and Forensic Writs in Texas, and the Solano County Public Defender’s Office. There are assessments now being conducted of the Texas Rio Grande Legal Aid PD Division as well as the Harris County MAC. A second major task has been creating black letter standards and guidelines for public defender offices. Statements have been written on “Qualifications of those Selecting Public Defense Leadership”, “Qualifications of those Serving as Public Defense Leadership”, “NAPD Policy Statement on Proper Professional Space, Equipment, Confidential Communications with Clients, Supporting Services for Public Defense”, “NAPD Policy on Active Supervision of the representations of Clients,” and “Merit-Based Selection of a Public Defense Leaders.” For all of these assessments and statements, see the Systems Builders page of the NAPD website. A third primary task of this active committee of more recent vintage is the assistance in recruiting and selecting Chief Defenders. Consultants from the committee have conducted searches in Pittsburgh, Kansas, Austin and Houston, Texas.
NAPD’s Foundational Principles said clearly what we stand for. In 2016 and 2017, a group of Steering Committee members met many times to try to establish what NAPD stands for. There were many similar standards and statements from the ABA and NLADA. Did public defenders have anything to add? Turns out they did. After months of work, the Steering Committee gathered in Miami at an ABA Indigent Defense Summit and for 2 days hammered out the language now contained in the Foundational Principles, found here: NAPD (publicdefenders.us). These principles stress competent and effective public defense lawyers (Principle #1), independence (#2), unburdening persons charged from paying for the criminal justice system (#3), reasonable workloads (#5), the vital role of training (#6), appropriate supervision (#7), being client-centered and holistic (#8), high quality and ethical representation (#9), change of cultural prejudice that marginalizes poor people (#10), battling mass incarceration (#11), disparate treatment of racial and ethnic minorities in the justice systems (#12), the punitive measures against persons with mental illness and cognitive impairments (#13), the vital role of public defense in justice reform efforts (#14), and finally the unity and collaboration of all public defense professionals (#15). Yes, it took 15 principles to fully express who we are and want to be. Read them. They’re really good.
Kentucky’s loss was NAPD’s gain when Jeff Sherr retired from Kentucky DPA to be the NAPD Training Director. Training public defenders was one of the first tasks of NAPD. Jeff Sherr is one of the top public defense trainers in the country. He was with us from the very beginning in Dayton. The Education Committee, chaired by Ed Monahan, then Kentucky Public Advocate, immediately begin to put on webinars free of charge for our members. He worked in partnership with Jeff, then Kentucky Training director, to put on now almost 300 webinars that are housed on MyGideon. Jeff skillfully created the platforms that have carried the webinars, worked with trainers to develop their sessions, and ensured that they came off without a hitch. He did all this in addition to working full-time as Kentucky DPA’s Training Director. When he retired in 2018, he became the NAPD Training Director. He has now made NAPD the go-to place for webinars, online and live learning.
Steve Hanlon and Norm Lefstein were important to our development. For the first few years, NAPD was blessed by the good counsel of Steve Hanlon and Norm Lefstein. Steve and Norm had been working on excessive workloads before NAPD existed, mostly in collaboration with the ABA and SCLAID. Steve sought out NAPD, never having been a public defender. He served as our General Counsel and along with Mark Stephens served as co-chair of the Workloads Committee. Norm Lefstein, who has now passed too soon, had been a public defender and law professor in Indiana. Together with Steve, they conducted workload studies all over America, analyzing, testifying, and litigating where necessary. They were an integral part of NAPD’s growth and development.
The Fund for Justice was established to help poor public defender organizations send their people to training. Norm Lefstein came up with the idea of NAPD forming a nonprofit to fund scholarships for public defenders, along with other worthy causes. To find out more about the Fund, or better yet, to contribute, go to the Fund’s website: NAPD Fund for Justice – a nonprofit enhancing the right to counsel and public defense in the United States
What would we have done without Greg Mermelstein? Mi