Board member National Defender Institute.
Oral history details
|Storyteller:||James R. Neuhard|
|Date of interview:||Nov 14, 1990|
|Where relates to:||Michigan|
Full text of transcriptDownload PDF: Transcript
Georgetown University Law Center
National Equal Justice Library Oral History
Interview with James R. Neuhard
Conducted by Theodore Gottfried
November 14, 1990
Ted Gottfried: (cuts off at beginning)…1990. We’re in Pittsburgh, Pennsylvania. It’s approximately 1:20 p.m.
Jim Neuhard: And you are…
Ted Gottfried: I am Ted Gottfried, State Appellate Defender of Illinois. Jim, could we start with your legal education? Where did you go to law school?
Jim Neuhard: I went to the University of Michigan Law School in Ann Arbor from 1966 to 1969.
Ted Gottfried: Were you involved in any clinical programs or did you work for any lawyers while you were in law school?
Jim Neuhard: Actually, no. That was during the Vietnam War. There was, at the University of Michigan, a prevalent attitude perceived by me and others that they were into the three Ps, which was the preservation and perpetuation of property. They had no clinics. Most of their measure of success was whether you got a job on Wall Street, a federal clerkship, or went to Washington. There were a lot of people there who just wanted to get out and practice law and we felt pretty alienated by the process. So, I worked in factories during the summer between my freshman, sophomore, and senior year in law school. It was one of the great disappointments. There were a lot of us there who wanted clinics and couldn’t get them and felt pretty robbed. There were no people-type courses even, other than the bare required courses.
Ted Gottfried: Property, Torts, Contracts.
Jim Neuhard: That’s it. No courses to take.
Ted Gottfried: How about after you got out of law school, what was your first job after you left?
Jim Neuhard: Actually, before I left law school a very good friend of mine, the uncle of one of my best friends, ran for and was elected to the Michigan Supreme Court. He had been on the intermediate court of appeals. That court had been formed in the 1963 constitution of Michigan and didn’t start taking business in until ’65. He ran for the Supreme Court in ’69 and was sworn in on January 1st of 1970, which was halfway through my senior year. We were playing cards one night, and he said, how would you like to clerk for me? This was the interview, during a card game of bridge. He’d known me most of my life. I said geez; I was going into VISTA which was taking attorneys and placing them all over the country. It seemed like a good way to go out and get practical experience. I wouldn’t have any decisions to make. They take you and trained you and placed you. You really had very little to say about where you went. So I thought about it, played a couple more hands of bridge and said, hmm…that wouldn’t be a bad place to go and at least get to see all types of law and see what I really like doing. Also, it was during the war and one of the reasons I had gone to law school, at least I told myself, was that it was a three-year deferment. After I got into law school they reduced it to a year-by-year thing, but I got a three-year deferment to go to law school.
That made me 25 when I got out and there was a clerkship and I thought, well, maybe that’s a reason for not going into the military also, because I was deeply concerned about whether I would go if I was drafted or not, and what I would do and how I would internalize that. Those were very important issues for people back then – especially people who, like myself, were white liberals, with an emerging sense of social conscience and had no sea legs about what was real or not real. You just sort of went with whatever the issues of the day were and that was the issue of the day. So I thought a clerkship might be a deferment. I thought it would be a great experience. I liked the justice. He was very progressive, a decent man, and it would give me a chance to see every type of law there was, at least at the state level. After about the third hand at bridge I said okay, we’ll see if we can do it. So I started working for him that next day. I said, look, I’m going crazy in law school, can I start tomorrow? You don’t have a clerk. Can I start in January after you’re sworn in? I would love to do whatever I could do. I didn’t even mean to be paid. I just wanted to work with him so he put me on half salary.
So my first assignment was to read a civil file and I read it and came back with my analysis of the case and he liked it. He said your next assignment is to read every criminal case ever written in the history of the State of Michigan. So I went into the basement of the law library at U of M and sat there for five to six hours a night until 2:00 or 3:00 in the morning, just reading criminal law from the territory days in Michigan, all the way through. And of course, when you start that you go a little crazy. You get pallid, ashen, and you start reading everything. I read eulogies, found out about some of the greatest justices that ever lived from their personal friends and the like and I read civil cases. It was a tremendous education because you saw – I don’t know anybody who has ever done that in one jurisdiction, I was going crazy by the time I got to the 1950s. But I followed the ebb and flow of criminal law development, of transition from a common law into a codified state, the evolution of penology, things that I never would have run into in a case, but I got imbued in it and it was something I cared about. Then of course we wrote some of the first guilty pleas cases ever written on appeal in the United States. That was one of the purposes, to find out where guilty pleas and plea bargaining came from. There were cases all the way back in the 1800s on it which no one knew because they’d never been indexed. So that was my first assignment with him and of course from that point we had an affinity. The irony is that as a justice we wrote, I think, five opinions that got picked up and had commentators do complete annotations on the cases. They were all civil, none of them were criminal cases. I never got a good criminal case to work on as a clerk. Then I took the bar exam when I clerked for him. They had 40 essay questions and I got a 38.5 out of 40, which is an incredibly high score. I lost a point and a half on criminal law. I’m the only person in the world that probably read all the law in a jurisdiction and the reason was I over-thought every question. I mean, whatever the question was I thought, oh, they don’t understand the question; here’s the real issue.
Ted Gottfried: You knew too much.
Jim Neuhard: Exactly right. I’ve cautioned people ever since then to not get that deeply into any area on the bar exam as a result of that. That was a complete immersion in criminal law. Actually it was more than that, it was a whole body of law that you got a chance to just – with no reason for doing it other than the most general of overviews, and so you could follow your whims and you learned about the whole history of the state, the movements of the state, and I found frequently whatever the social movement was it ended up in the criminal courts.
I mean, during the union movements in the 1930s in Michigan, which is certainly part of this country’s fabric, there were criminal cases there. In the 1920s when times were good there were incredibly liberal cases being written. In the 1890s, the turn of the century, incredible cases were being written, long range . . . maybe the turn of the century people started thinking about the fact that 100 years – something is significant about that. You found opinions in that window of time, far-reaching, thinking-type opinions. But you saw this stuff in a way that you would never see it otherwise and so it was an incredible job to have.
Ted Gottfried: In sense it was a great history lesson, because to some extent it seems as though the media doesn’t have much of an understanding for history and they seem to think problems we are having now never occurred before, but when you look back you see the criminal justice system was dealing with these problems.
Jim Neuhard: Now remember, this was a time in the hippie movement, the communes, the counter culture, a time of alienation. In my survey of the appellate history I came across a reference to the “House of David.” Back at the turn of the century, there were all these experimental living arrangements such as Chautauquas, Shakers and other idealized communes. Michigan had the House of David – a quasi-religious one. They had a baseball team that toured all over the Midwest. They had long beards and they also had an amusement park that people used to travel to on vacation from Chicago and Detroit.
Ted Gottfried: St. Joseph?
Jim Neuhard: St. Joseph County, the place is still there.
Ted Gottfried: I’ve been there.
Jim Neuhard: Well, David evidently was somewhat of a lecher, and one of the initiation rights for all the women was you meet David. He was brought up on charges. Parents went after him because women left home to live with him and I’m sitting there saying, holy god. So, I go to my Justice and said what is this House of David? There are all kinds of rape charges; there were words like gross indecent conduct, all these sort of euphemisms. They went after him with the criminal law to get at, and I thought of the Moonies, Jonestown, all these things and it comes back that this is history in America of the attempt to find an idyllic lifestyle out of the trammel of whatever the lifestyle was of the day. As Yogi Berra would say, déjà vu all over again. The other interesting thing that came out of that, that I think if anything I brought to a lot my involvement both at the local level and national level, was a sense of calm. I rarely got flustered, in the sense of that today is the worst day of the rest of our lives. Not that I would ever sit back like sometimes Marshall Hartman was accused of, and tell you the history for the 14th time of some event. I didn’t feel compulsion to tell people this and I don’t think I ever consciously thought about it, that, oh this is like something else, it wasn’t that level, it was simply a sense of fullness about these things. Not that I didn’t go crazy with other people but I had this sense of seeing these rhythms come and go in the history of – we’re certainly not one of the older original colonies in the eastern seaboard but one of the older states in the nation. I followed the death penalty debates in Michigan, they appeared in the cases. We never had the death penalty, but it started before statehood and it was in there, all this was in there, and it served me over time. The whole thought of penology and prisons and the purpose of prisons and the current debate, it was all back then. They had mandatory minimum sentences; they had determinate sentences; they had indeterminate sentences; they had opinions about people getting sentences longer than the life expectancy of an average person being unconstitutional. Well, Michigan just decided that again and never even cited the 1875 case that did it. One hundred years later they do it again. So it was a great experience.
Ted Gottfried: While you were clerking did you have any feelings about the level of representation that indigent defendants received before the appellate court?
Jim Neuhard: Not indigent defendants. When I was clerking, the office I now run began as an LEAA grant. They put out a pilot project request for proposals and your office in Illinois and several others began as public defender programs under that grant process. I think yours might have been the first or right up there with the first. We were close on the heels of starting but I was clerking at that point and Carl Levin was the chief. He’s now a U.S. Senator, was the chief appellate defender for the city of Detroit Public Defender Office, and his chief assistant became the first director of the statewide office. Those two people were extraordinary lawyers and so it wasn’t so much that I looked at indigents and saw what kind of representation they got and could really tell because so much of it was provided by the private bar. I rather looked at the quality of briefing in general at a state supreme court. When I began clerking I was not one of these young hotshots from a top three law school who thought I knew it all. I felt very insecure. I felt I didn’t know anything – that I got through law school somehow as a trick. I never felt that I learned anything. Obviously I did, but I had all these insecurities. So I was very mindful when I read these briefs: who am I to be criticizing the work of someone who had, I don’t know, practiced law five years? It was the equivalent to 40 years for me back then. But by the end of my clerkship it was clear to me that in 1969 very few lawyers knew how to write appellate briefs, period. I knew by then, rarely do lawyers in their careers do many appeals. When you take all the lawyers, there are some lawyers that do a lot, but it was rare. Like anything, if you don’t do it a lot, you’re not good at it. Then I saw those lawyers who did it a lot and repeated the same mistakes over and over and over because the lag between when you get a case, and when you argue the case, and when you get an opinion, is years, and there is very little reflection on your original product. It may improve but it was a very agonizingly slow changing process. Trial practice was changing like lightning and improving in training with NIDA and all the programs coming up. But, appellate practice virtually had nothing and essentially the briefs looked the same as deeds when I did my research. I go back and get the original briefs in 1920 cases and they may have been reproduced differently, they had a different type set, but boy they sure looked the same. There was not much that had changed, and I was very conscious of how low quality appellate practice was in general. I was aware that some of the big name people in the court who filed briefs a lot in criminal cases were the same people. Part of the reason was that judges back then picked lawyers to do appeals on some level of subjective quality; they appointed big name lawyers sometimes to do some of the more important cases and the lawyers did them pro bono – I mean, they didn’t expect to be get paid. So, I saw this huge disparate level of quality of the briefs but I don’t think that I could have articulated then much of a difference between indigent and regular lawyers because I was greatly disappointed that someone who got leave granted in a state supreme court would do the low level of quality that I saw in general. Now I can articulate a lot of reasons for it. Back then, my main reason was that I basically looked at lawyers as being lazy and just getting by with the bare minimum amount of work and getting the maximum money. I don’t think that way now but I sure thought that way then.
Ted Gottfried: How did you go to the appellate defender office?
Jim Neuhard: I finally thought I was very good. After you get these annotations being done and being written about opinions, and people liking it, you start thinking maybe you’re not that bad. I liked the academic side of it a lot and I couldn’t think of a place that got me into a real world more than an appellate office where I could still do heavy research and yet I was representing real clients. I took a pay cut to go there as a staff lawyer. The director of the office recruited me. He called me up and said we’re hiring; are you interested? I think you’d like the office and I think we would like to have you.
Ted Gottfried: Who was the director?
Jim Neuhard: Art[hur] Tarnow was the director back then. He still is practicing exclusively appellate law and does only criminal work. [He is now a federal district court judge. – Ed.] Art was very ethical. He won’t do drug cases now, he wouldn’t do them then. Now you may agree or disagree with the principles behind that, but he felt, even back in the 60s, that drugs were bad news. When he went into private practice he decided not to bring his skills or benefit those who were destroying the City and the people he loved.
Art was only director for about two years. When I came into the office he had a deal with me and the guy who was clerking, Mike Moran, at the U.S. Supreme Court for Justice Brennan. He told Mike that I was coming, and he told me that Mike was coming; neither of us had committed. So we both show up and find out that he used each of us as a tool to get us both in. At that point the briefing in the office changed dramatically. I mean Statement of Facts were being written along the line that, the Statement of Facts would be: the defendant was convicted of second degree murder on May 1, 1968. That was the Statement of Facts. The theory was that all of the facts were bad because the guy got convicted, so why repeat the bad news? You know, it was learning how to present the facts persuasively, factually, but using them as a stepping stone to the issues presented, the questions presented, so that by the time you finished the introduction of the brief you said, but of course you should win. That sense of advocacy and understanding the dynamics of a brief was the presence of a U.S. Supreme Court clerk and myself in the office simultaneously with some very bright, very talented people. It was a cauldron of just a lot of people brainstorming on how to take and do high-quality work.
Ted Gottfried: How many lawyers were there?
Jim Neuhard: I think there were seven at the start. National moot court team winners and people who graduated number one in their class from U of M law school – just an incredible group of people. There were no rules. It was just an open season, we were a brand new office coming into an area where virtually any quality was totally appreciated. There was a whole series of theories on how you should fund such an office, how it should get its money, because it had been county-based up until then, and Michigan had a long tradition against state funding of any indigent defense. Defenders were looked at as big city issues. LEAA made an enormous difference. It came in once Marshall Hartman basically got the word “defender” put into the priority sections of the Law Enforcement Assistance Administration legislation. Defender offices opened in Michigan all over the place. That’s how our office began. That’s how your office began. But, it was a great, huge breakthrough in terms of the creation of public defenders. And even to this day, though, I think the average citizen thinks of a public defender as being essentially a big city phenomenon. But you know probably two-thirds of the defendants, though they may cover – it still is mainly a city phenomenon, I think something like two-thirds of the defendants in America are served by public defenders, full-time defenders. People who do criminal defense work, they could be public, they could be not-for-profits, whatever. They may only cover about 40 percent of the jurisdictions, but they cover 60-70 percent of the defendants. So that means it’s a big city phenomenon. But you could find defenders now all over, in the most rural areas of America, in virtually every state. I think LEAA and a few others, like Ford Foundation, are principally responsible for it. But I think we’re still dealing with an image that when I went to the public defender office my image was that of the TV. That they were bad lawyers who couldn’t get a job anyplace else and I, by going there, was going to change all this. What I found was the TV image was totally wrong. I don’t know where it came from, probably from New York and LA, the big media centers which had the oldest defender offices around, they were big even then. But I think that they are two of the better offices in the country now. Certainly LA is lionized that way. I’m sure they were bad offices by somebody’s standards at some time. Most of the defenders I found are, if for no other reason than they are specialists, even in the legal culture I find them in, tend to be some of the better lawyers – the better lawyer in terms of in-court skills. Now it may be that a defender from jurisdiction A is better than B because they were higher in their law school, have better resources, better training, and lower caseloads. But, normally the local legal culture reflects what all the lawyers are up against, and in that culture the public defenders tend to be the better lawyers.
Ted Gottfried: How long were you with that office before you eventually … [unintelligible]
Jim Neuhard: Well, it was an LEAA project, the grant was running out, the director ran for judge, took a leave of absence and so I became the acting director while he ran for judge. It was interesting, in the last year of the grant this happened. I didn’t know anything and then in December the grant was due to expire in the following June and December they made me the director and the grant expired in June and I was on vacation. I didn’t know you were supposed to do anything, and the money was gone because I hadn’t been up in Lansing and active and didn’t know all of this. So there was a panic from that point forward dealing with attitudes by trial judges who didn’t like independent public defenders, who wanted to keep the power, the patronage of appointing lawyers, didn’t want outside lawyers coming in looking at their work. There was a scene in “Anatomy of a Murder” that I thought of then and I think of to this day since. “Anatomy of a Murder” was written by a retired justice from the Michigan Supreme Court under the pen name of Robert Voelker, I mean Robert Travers. Voelker was his name. And it was based on real stories in Michigan. There was a scene in which George C. Scott comes into the local community, which is an upper-peninsula community in northern Michigan, as the attorney general from Lansing to try the case. The local lawyer played by Jimmy Stewart is the bumbling country lawyer, and he plays up the fact that this outsider came all the way from Lansing to try this case. The phenomenon, and I found this to be true all over the country, of the lawyer coming from the “big city,” from Lansing, into a local legal culture from the outside, it cannot only be used against you by the local prosecutor or attorney with a jury, but it’s an attitude in the judge’s mind, that you are an independent outsider. Unlike local attorneys we did not have other clients that would appear the next day before that same judge. We were arrogant, we were young. I guess, in part, it was the times and our age and an attitude – many characterized it as judges were saluting the flag and public defenders were Communists, overly simplistic but it seemed the nature of the times – everybody had a pigeonhole, everybody had a badge to carry. We learned that first hand and there was a lot of resentment. People on the other hand who would go against your funding to kill you would admit you did the highest quality briefs, you provided quality service, you were efficient, cost effective and all the rest, but you dealt in these sorts of badges back then. We were inartful and young and incapable, not mature enough to recognize there was much more going on that had nothing to do with liberal and conservative. It had to do with just natural dynamics of anybody coming in from the outside, representing someone who had harmed that community and saying, someone had made a mistake. That is the nature of what we did. There is no appeal if no one made a mistake, either the defense lawyer or the prosecutor or the judge, the police, the legislature, and all they saw us do is come, as they would characterize it…bitch, bitch, bitch, bitch, bitch, bitch, bitch, and who for? Somebody who raped, pillaged, burned, etcetera. [A county commissioner once said to me – Ed.] “We spent all this money to lock them up and now we have to pay you to get them out?” So there was an awful lot going on there that was just natural human dynamics that we didn’t understand. It was too convenient to just simply attribute it to the times. We found when that budget was in trouble that we had a lot of support from the organized bar for survival – from the appellate judiciary – the people before whom we regularly practiced but we had a lot of opposition from the local judiciary.
Ted Gottfried: Did you have a pending case load?
Jim Neuhard: Oh yeah. There were questions of how are these cases going to be handled, the impact on the appellate courts, etcetera. But at the county levels we had virtually no support. Most legislators are elected at the county level, and we didn’t understand that they were getting messages from their local prosecutors and their local judges who are elected countywide, people with natural constituencies, saying, we don’t want this program. It took an awful lot of [bipartisan – Ed.] clout, if you will, by leaders at the state level, at the court of appeals level – and at the Supreme Court level, to keep us alive. It was done on a blank check from the Supreme Court out of their budget. The legislature zero-budgeted us for three years before we ever got a budget. At that point, they cut the office in half not on the merits but based on this inability for us, at that point, to garner support at the local level.
Ted Gottfried: If your office hadn’t done the appeal, would the counties have to pay?
Jim Neuhard: Yes. So if we did the appeal it was free to them. Well, we vouchered the counties, but I never collected them because I felt it was improper. We were supposed to act like a private lawyer and voucher the counties. They never paid us and it was just costing an enormous amount of time. So as time went on, after the LEAA grant – that’s where the matching funds came from for the LEAA grant. Once we got state funding, I just told the counties we were going to stop. Then the pressure was more and more of them wanted to use us because we were free. Even with that, the more conservative counties, the wealthier counties, refused to use us. They would rather pay for it than have the outsiders come in. Once you establish politically that attitude it takes a decade to overcome it. Of course, personalities can change but the attitudes and the history lingers. Now, what I found fascinating as we went through this is at different times of crisis, at one point the Senate was our friend and the House was our enemy and the governor was neutral. Then the next year the same people in the House were our friends and the Senate was our enemy and it just sort of moved around like the moveable feast. As we had to deal over and over with these entities and became more like them I suppose, whether that’s good or bad as history will judge, you learn the process of what is it like to have a funder and retain your ethical vision that you’ve got a client, where they aren’t paying for the services, and you can satisfy the funder and do 150 cases a week or satisfy the client and do one case a week. When you have a third party payer those ethical dilemmas are real. How to deal with those in a political environment and in an ethical environment as lawyers is very difficult to learn, to come to terms with. I don’t know if you ever satisfy either constituency and then you have of course your attorneys who have their own unions or needs. I’ve been able to see now that there is an enormous similarity in other third party payer situations, that I’ve seen in the med-mal crisis where doctors are irate at insurance companies because they want to settle the case for nuisance value and they don’t want to because their names are on the line, their hospital privileges, et cetera. But the doctors are not the ones who pay the lawyers. Their insurance contract says that the medical carrier can settle it. The doctors are irate about this. My clients are in the same situation. When you are making decisions about how you are going to process a case, the timing of cases, whether you visit them, whatever your policies are, still do a quality job but you’re making decisions that anger a person who is not paying for it. And the non-paying recipient of services is growing. They cannot vote with their feet and go to another attorney as a privately retained client might. Normally, the professional must please only the paying client who also is paying him. In this situation, the fact that the attorney gets paid by someone other than the client, if they want that “contract “ to continue or to continue to get work from the person who is paying them, then their loyalties are indeed split, in spite of the fact that the disciplinary rules say otherwise. We see it every day. And the clients intuitively feel this. Earning and maintaining trust in this situation is very difficult.
This method of providing counsel – the third party payer – of services is growing. Prepaid legal plans, insurance representation, even junior partners in firms work for the senior partner not for the clients. Associates may be told to bill a certain number of hours no more, no less to get that project done. These are ethical questions that law schools do not adequately deal with. They don’t train lawyers to be small businessmen, to deal with ethics in the real world environment, the government environment, and I spend as much or more time agonizing over the balancing of these, finding a way to articulate them, to come to terms with them, as much as I do with whether Miranda should be overruled. At times it even affects my staff people because they are involved in having a low enough caseload to do quality work and having support services to do quality work and feeling that they are incapable of doing it because the pressure to produce more has overwhelmed their ability to exercise independent judgment. As the recession increases, defender services rank probably right above nuclear waste dumps in popularity. These are issues that are not going to go away. They are issues of our day. I think they are issues of 20 years ago. But what each crisis brought by those of us who stayed into it and as Larry Landis would say, who said it today at the defender caucus, when you’ve got clear values decisions are easy. That’s simplistic on one level, but when you are faced with: is it better that we close our doors and not help anybody or take an extra 10 cases and work a little harder, what’s the deal? It’s the nose of the camel issue every day for the last 20 years and I think if we stayed around, as I was about to say, you learn from this and hopefully you become stronger for it. But the next time the crisis comes from a different part of the compass, it’s hard to remember the lesson. You are faced anew with the frustrations of trying to provide the ethical service to the client and still meet the needs of the funder.
I’ve learned one thing, though; that the reason we survive now is because we do quality work. People are willing to walk through walls for people who do quality and happen to be public defenders. There are no votes in public defenders anywhere and people will support it. I don’t mean just fund it because it’s a governmental service, but support it, because they have some level of investment in the work you produce. And if you give that up, then you are just going to get the money because you are politically adept or part of the system, but not for any other reason. I’m comfortable with that decision: that our future rests in quality, not in simply providing, as the Germans would, just a vehicle for getting someone into prison or the death chambers without really putting up a quality substantive defense. But I’ll tell you, the temptations to give up that issue, and the pressures to give it up, are enormous.
Ted Gottfried: As your office grew and developed and you had to deal more with the funding authority, did you have requests for sort of patronage in the sense of the ability to recommend who you are going to hire and how did you deal with that?
Jim Neuhard: One of the first things I did was I flew down to talk to you after I called NLADA which was then in Chicago. I felt I didn’t know anything about this. Law school doesn’t train you to be a manager. I was only several years out of law school. I was probably chosen because I was on staff to be the acting director. I clerked at the Supreme Court and we were a division of the courts at that point and I knew some of the justices. So, for no better reason, I was the acting director because nobody had any experience back then. The whole concept of hiring and how you hire – you just get the best person, right? What’s the big deal? I flew down and talked to Marshall. I flew down and talked to you. I listened to war stories about the life in Cook County, how bad patronage hiring can be, to lose control of that, how difficult it is to say no when the chief justice calls up and says it’s their mother, brother, sister, father, friend who needs a job. I came back and put a hiring committee in place through the commission, which is like a law firm that the partners in the firm, the senior attorneys and I, would have a committee. We would interview whatever way and produce the final number, and then the committee would hire and everybody would have one vote. The smartest thing I ever did. I tell everybody that I’ll support you for a job, but I have one vote. It served me exceedingly well. The pressure is enormous. As you might suspect, part of the spoils, part of the reason people get into government, part of the attribute of it, is the ability to pick up the phone and call someone that is a friend of yours and say that I’ve got a nephew or a son that needs a job, can you help him out. So that was a learned experience. If you lose control of that, you can really lose control of your office. Or hurt your funding. Frequently in government the power people have is ten times less than the fear you have of what that person might do to you. And if your simple answer out of the gate gets rid of it, I find the problem goes away. I never had a problem with it. When I tell people the process and they say, well can’t you change it; I say of course I could. But I’ve got to go to my commission. The commission is the other thing that we put in early on, partly out of the worries of other public defender offices, was not to get a defender hired by the judges or the governor or county commissioners or the legislature. We created a commission and gave everybody some appointments to the commission to insulate the defender from being fired and the politics of what happens if you don’t play along. There have been several governors who have tired to take control of the commission and very quickly the commission went crazy because it’s appointed by the Supreme Court, the court of appeals, the state bar, the governor and some other people. So, it’s a broadly based committee, and just fought it. There has been that insulation from control. That’s made a big difference to me.
Ted Gottfried: Are you appointed by that commission?
Jim Neuhard: That’s correct.
Ted Gottfried: Do you have a term?
Jim Neuhard: No. I would change that. I think it’s good to have a term, every five years or four years, or a contract, so you get a set point at which you renew and you are forced to sit down and think about this person. The danger is – I think that I’ve remained relatively vibrant and at the cutting edge of what’s going on, but very easily I could have drifted in there and got comfortable and did nothing. So I support a term rather than no term. I have to go back and tell them now it’s time to do my annual review kind of thing, but I support that sense of regularly having an event that must occur, and if it doesn’t occur, you don’t have a job.
Ted Gottfried: How could the commission remove you?
Jim Neuhard: For cause.
Ted Gottfried: Do you have a right to hearing then or . . .
Jim Neuhard: Well that’s not defined but as a practical matter it would require – under Michigan law – it’s pretty well laid out in the common law for when you have an unspecified for-cause termination. Tucson is the case. We have procedures that we put in place and by acquiescence the commission would be stuck with them.
Ted Gottfried: Let me ask you about NLADA. When did you first become aware of that organization?
Jim Neuhard: 1971 was when I became acting director, about a year after I left the clerkship. When I became official six months later, after the election in December, this would be December of ’71, I said holy god, I’ve really got to run an office here. The office was running of course, but it was a grant office, and back then grant offices kept receipts in shoe boxes. You didn’t know if you were going to be around with the way things worked. Legislators resented the matching funds requirements. LEAA would go away in two years and the legislature had to pick up the funding and there was a growing animosity to it. So a lot of states had systems, including our office, but there was no testing of them over time. They hadn’t been around long enough and they didn’t have a dead file system because cases hadn’t closed yet. But I thought I should go and find out from people around the country who was doing similar work. I didn’t even know if anybody was. I found out about NLADA by getting a mailing about the San Diego conference or something like that back then. I called and got Marshall on the phone. Marshall Hartman gave me probably about a three-hour lecture on the phone about creating the appellate defender office in Illinois. He knew Art Tarnow, who was my predecessor at that point. I forget now why or how. I said give me your phone number, and I called Ted Gottfried and said can I come down there? I flew down and did nothing more, I suppose, than go into the office and sit down and talk for a day, or the better part of a day. We talked about how information was kept, how the numbers were counted, and since they were doing them probably six months longer than I was, it seemed like they were doing it for 50 years. Back then that year and a half or two years was indeed a lifetime. I think you had gone off the grant already and as such that transition had already occurred. There was a ton of verbal comfort that was given. I don’t know that I could remember any specific thing. There were things that I thought we were doing that were much different and much better than what you were doing. We had a different structure because you were chosen by the Supreme Court directly and then the commission comes into play for policy. There are some other minor structural differences: you had to have branch offices because each department of the court was separate and distinct and they sat in five jurisdictions; you weren’t in the big city of Chicago because the Cook County PD was there. There are some geographic type differences. But I remember coming away feeling: there is another one out there. I’m sure it’s like when we find life on other planets. Then there was Howard Eisenberg who was active in the appellate defender office in Wisconsin, another LEAA grant office. I think that was it. If there was anybody else it didn’t matter. There were three offices in the Midwest that had stand-alone appellate defender offices. Very soon thereafter I remember going to Chicago. All of us came to Chicago. It could have been two years later, it could have been two months later; I don’t remember, but we went to Chicago and met in Marshal’s office. Out of it came the appellate defender section. I think one of the first things we did was a training session down in –
Ted Gottfried: Miami.
Jim Neuhard: New Orleans. It was in New Orleans when we did case weighting, with Bill Hellerstein from New York. Anyhow, it could have been a year later we did something, but I remember we put a training seminar on at the annual convention and it was on case weighting and some other substantive topics. It was really good. Bill Hellerstein, back in those days, was appearing I think weekly in the U.S. Supreme Court out of the New York Legal Aid Office, who had an appellate division that was the biggest thing in the country. I think he probably had 50 lawyers back then doing appeals just out of the city of New York. Bill was a very famous lawyer because he had appeared in the U.S. Supreme Court on a ton of those big cases out of the 60s. Eddie Hughes was there and other people were there. Melvina Nathanson came, and we were sort of realizing there were other people around the country doing appellate work and they all came to this. John Packel came from Philadelphia. Other names will come to mind. Jack Moran was there from Cook County, and there were people from other offices around the country, trial offices that had appellate divisions. But whether it was Miami or whether it was New Orleans, there was this meeting, and we had to have officers so we elected officers. The section should have officers, but no one told us what to do. We elected our own officers. We didn’t have any dues as I remember at that point. Seattle was coming up or something around there, and we decided to put on substantive training programs. It turns out that the defender division wasn’t putting on much, if any, programs at the conference. It was all civil programs and the formation of Legal Services Corporation. Our substantive training programs were the only substantive training programs being supplied at all nationally on anything, the appellate defender section, and we got a lot of flack from people for doing this. We were supposed to go through this convention process which we didn’t do. We just put a whole day of training on.
Ted Gottfried: But the programs were jam-packed.
Jim Neuhard: They were always jammed.
Ted Gottfried: One of our rules was the requirement that people have good written material so people would all come to get those written materials.
Jim Neuhard: Right, and it was a great fun thing. In that original group was Vince Aprile, Howard Eisenberg, Ted Gottfried, myself, Jack Moran, John Packel, and Melvina Nathanson. The reason I mention them specifically is, they’ve all become board of governor members except for John Packel and essentially I became president of the association, and then became chair of the defender committee. We were the foundation for a radical change in the way NLADA viewed itself and ultimately the way NLADA governed itself. Rather than just sit back and criticize we came in and took over the association. Howard Eisenberg became the defender director and then the executive director. Oh, I forgot Rick Wilson.
Ted Gottfried: Sure because he was head of the appellate section for . . .
Jim Neuhard: One of your branch offices. And made NLADA on the defender side. Another thing happened. The civil side back then viewed defenders as being partiers, drinkers, incompetent lawyers, and they had no respect for defenders. I think part of that is, again, TV. Part of it is, at that time in history the civil side was the cutting edge of social change in America, self-denoted, thank you, but nonetheless it was real. They were out there on these social issues, with poor people and working people, whether it was migrants or any number of social issues they were involved in. The people who went into that were part of the great change that was occurring in America. Defenders preceded them on the scene, the OEO days and Legal Services Corporation, back to the foundation of the defender movement in the late 1800s to the first office in private New York in the early 1900s. The public defender was in LA in 1915. We’ve been around a long time. A lot of the legal aid societies were defender societies, first in Philadelphia and Detroit and Chicago and other places. At least they are significant offices, and they had a reputation for good or ill. The people who showed up nationally, the civil side would tell you fit that mold. They swept with a broad brush. The put people like Lou Frost, Jim Doherty, Misel Soul, and who was the guy from Las Vegas?
Ted Gottfried: Morgan Harris.
Jim Neuhard: Morgan Harris, and Bill Littlefield, in that category.
Ted Gottfried: Well one difference was that there was an age difference. I think that people on the civil side tended to be younger and I think that frequently one of the greatest bonds between people is being of the same generation and also you know it was clear though that the people on the civil side felt they were part of the movement and some of the people on the defender side who were not of the same generation didn’t even know what the movement was.
Jim Neuhard: Right, and then there was Wally Rogers too. I remember these key people on the defender committee back then. But there is a structure issue in legal services back then that was notable. One, the defender committee had 20 people on it, none of whom happened to be on the board of directors. The board of directors had 100 people on it, an executive committee of 48 people. The civil committee had 20 people none of whom happened to be on the board of directors. The board of directors was governed by the ABA. The real power was with the ABA people. Defenders weren’t even on it structurally, I don’t think, until the late 1960s. The ABA…that is where you came; that is were you did your sort of service and then you were on your way to become president of the ABA. This went on, and when we came in there was this great division, strata, the board, then there was the defender committee, and then there were the young lawyers on the defender side – which was us. The appellate section was the vibrant section – new kids on the block. The civil side, as you pointed out, the whole damn apparatus was new kids on the block. That group that I described that met in Marshal’s office, you, Howard, myself and then later Rick Wilson, Jack Moran and a bunch of others, cared about practicing high-quality law. In fact we probably wanted to be good lawyers before we wanted to be good managers, but realized we had to be good managers because that is what we decided to do. We had a hell of a lot in common with the people on the civil side and as they met us, or we crossed over because we happened to know a few people, and I knew a lot of people on the civil side because of my work back in Michigan on issues relating to a variety of social causes, we had credibility. It led up to several reflections on the structure of NLADA and how inappropriate it was given the true tremendous growth in the number of field programs. We had virtually nothing to say about governance even of our own defender committee. Some of us made concerted efforts to go and get elected, and Marshall Hartman was incredibly supportive as the defender director of getting us onto the defender committee, this class of people. Marshall did not disparage at all the senior people. He was a very loyal friend up to the very end of Jim Doherty, still is. He was a loyal friend of Lou Frost. He was treated terribly by some of these people who had a cliquey club type of approach, particularly on the civil side. Marshall was committed to doing high quality work. He was committed to getting money for defenders. He was committed for training, committed to the National Center for Defense Services, and if you came in to NLADA and you were supported by Marshall, in one way or other you supported high quality work, doing research, doing consortiums, getting people together, networking, building blocks of people committed to doing this work wherever they might be found. He was probably one of the most egalitarian individuals I have ever met who never looked at the credentials or the badges you wore into his office but rather he looked at what you carried in your mind and he intuitively sensed it, even people who treated him poorly. I recognized instantly that if you want to find someone on an issue that knew what they were talking about ask Marshall, because you would get more than just a bullshitter. And that was Marshall’s sine qua non, and it still is to this very day, his strength. He in turned recognized that those of us coming in, like myself, were more political. Whatever it be, Rick Wilson or Howard in terms of their ability to run a group, whether it’s electability within a certain climate, he promoted people into the association and nurtured them, always rewarded them, stroked them, fed them, and networked them, incredibly. That group met in New Orleans in ’76 or ’77 at a board meeting, sometime before the Detroit convention, and said we’ve got to change the association. We met the defender to the civil side. We’ve got to find a way to get into the governance of this association. It’s time, with so many civil and defender programs out there, that a field person had an opportunity to be president of NLADA, that the board was too unwieldy, too unconnected to the daily work of the association. Then almost nothing happened except that we talked, the defender and civil people talked. There probably were a series of events that – I’m trying to think when Marshall went to be executive director and Betty Kerr ended up being hired. Marshall was going for it when Frank Jones was brought back in Seattle and then Frank Jones was there very briefly and he left. Then I think we had a series of interim people and then Betty Kerr came off the old defender committee into being executive director of the association. It was a disaster for a number of reasons, a lot of them not her fault, but it was clear the association was in turmoil and change, in retrospect. Coming into the Detroit meeting, Betty had been chosen essentially by the ABA. Part of the clean sweep that occurred in Detroit was a series of people and Pollyanna events; people saying this is outrageous; there was at that point a decision made to pull the convention from Las Vegas because of . . .
Ted Gottfried: Nevada had not approved the Equal Rights Amendment.
Jim Neuhard: The Equal Rights Amendment. But, also it was a defender who was the primary person supporting it.
Ted Gottfried: Because contracts had already been signed . . . he would have been very embarrassed in his community
Jim Neuhard: Which he was. But there was a division that occurred. Bill Littlefield left the association at that point. One of the reactions was, if you are not going there because of the NOW amendment, we ought not go to any place where there is a death penalty, and that passed too in a meeting of members, a restriction of meetings. But, there is a change going on and a frustration and you could see the association really, the people who were members weren’t connected from its governance process. That break occurred in Detroit and C. Lionel Jones was elected president-elect and then the transition started in the association. The board was reduced following that; the by-laws were changed; the governance got equality between the civil, the defender, the clients, the public members of the bar, and then we spent a decade losing the support of the ABA and others because we had to learn to walk. Then, we’ve come back since Clint Lyons has been director and I think built bridges to more associations than we ever thought possible of disparate types and on our own terms, or I say as though there is a judgment in that, we learned how to be ourselves, to grow up. I mean we left home, almost went bankrupt, people stepped up, saved the association, and now I think it’s stronger than it ever was in terms of the constituencies it is realistically serving. But those were big changes, because historically most defender services grew out of the concept of the legal aid office. There was Clara Shortridge Foltz, which we later found out, writing in the late 1800s about the needs for a public defender. Indeed the Public Defender Act in California is called the Foltz Act, no one knows why, but we found out it was because of Clara Shortridge Foltz, this remarkable woman who lived back in the 1800s, a suffragette who basically got women admitted to law school and admitted to the bar in California, but passed the act, the Public Defender Act, and the LA Public Defender began under that act. But that really was one of the few public defenders. The bulk of the public defenders were legal aid and defender offices which were providing counsel in areas even before there was a Gideon, before counsel was mandatory, and the private bar essentially controlled the legal aid and public defenders. The local major bar association generally ran the public defender or the legal aid program. It stayed that way in the big cities until the Ford Foundation came through with a grant in the early 1960s to put some pilot projects together. Those names you’ll have to get from Marshall. John Cleary was instrumental for LEAA bringing that to the fore and then Marshall’s advent as defender director at NLADA and his outrageous insistence that the word defender be written into the federal legislation and getting it, it was the floodgates that changed the world. Now, contemporaneous of course, you had an incredible increase in the use of the arrests of people to control crime. That was a major advent of the 1960s. One would argue crime increased, but it’s also clear that the criminal justice process resolved then became primarily arrest people, prosecute them, and put them in jail or prison. As we closed the 1980s that’s all that is left of the system realistically. People were talking about alternatives now only as a way of cutting prison costs. But we took the system with the professionalizing of the police into this process, that the criminal justice system isn’t really alternatives, it isn’t really social controls, neighborhood controls, school controls, family controls, but really is if someone commits a crime put all your resources into either preventing the crime –
Ted Gottfried: Separating them from society
Jim Neuhard: And also creating a fortress America. Gas stations and chain store ways of doing business, cleaners, et cetera in the major cities. In your house, in the way you live. But dealing with crime essentially is a police response issue. I think we are going to learn that that was wrong then. It’s wrong now. It’s costly. It doesn’t work. You don’t control people through fear. But that’s another story for another time. But those changes occurred and the defenders have ridden the wave of basically their growth as a result of a need to low cost, effectively handle the volume. Now there are those who believe that an organized defense delivery system will also provide higher quality, more humane service, more decent service, more independence to the defendants who are charged, but I don’t think that’s the engine moving most funders. Most funders are looking for a way of either efficiency, that is, making it work better – these ad hoc assigned counsel systems are very inefficient – or they are looking for lower costs or both generally. Whether they get that or not remains to be seen. I don’t know if it’s always cheaper. I don’t know that it’s always more efficient. On balance it is compared to whatever was the alternate delivery system. The other phenomenon that I think, from where I sit, what I saw happen over this time, is as I mentioned, there was this chasm even though there were legal aid and defender offices within the programs that actually had a legal aid program and a civil program and a defender program. They were not only physically separated, generally in different offices, but they were structurally in a manner of governance separated. I mean, they were independent, unrelated, and disrespectful groups generally of each other. As the civil community grew that attitude grew with it, in fact may even have some degree of myth about it. It might be comparable in history of feelings about these issues that it’s real and tangible and touchable. Defenders likewise came along and thought the civil side was touchy feely people from California who drove 10-speed bikes and had beards and lived in leather.
Ted Gottfried: And never went to court.
Jim Neuhard: Never went to court, thought a lot and were into process and not substance. It grew, that myth grew, that defenders were real world, some Republicans, some Democrats, mostly agnostics and were down to earth, result-oriented. The clients of the defenders weren’t the clients of the civil programs. We had people who couldn’t afford counsel but weren’t necessarily under the poverty line and frequently most victims of our clients were their clients in the civil community, and the civil community thought that crime was bad and politically incorrect and we weren’t politically correct. The defenders thought that this was all bullshit and these people on the civil side were just talkers and coffeehouse type people. There is probably some truth in there somewhere on both sides of it, but the fact is the myth far exceeded the reality. But the consequence was to further compartmentalize the law as to being civil issues unrelated to criminal issues. They don’t cross at all. Of course we know that juvenile is sort of quasi-civil and quasi-criminal, and yes, of course, every juvenile case has a child custody and a divorce generally, and a support issue that is in there, and three or four other people are always represented by – well, that’s unique. Well of course people in prison have civil legal services problems. They have divorces they are going through and they have benefits they can’t get. They are being sued and but – no, no, no, they don’t get a lawyer from legal services because they are in Marquette prison but they are from Detroit. So the Detroit lawyer should handle it and Detroit would say, but of course habeas corpus is civil and not criminal, and that’s true, but along comes a few issues, and life is changing. Child brutality. Most of our clients who do violence were beaten children, but they also grow up and beat their own children and they are in court. A lot of the wives who had been abused wives ended up as our clients because they picked up a gun or gasoline in the middle of the night and killed their husband. The women’s movement wanted to think that we represented rapists and wife beaters. I said wait a minute, I’ve got women who blew a guy away for just touching her and she was charged. I’ve got women who killed their husbands because they were beaten for ten years. We didn’t fit into the neat pigeonholes people wanted as defenders. The drug crisis came along and now the world is becoming crazy, because who are the good guys and bad guys when you are trying to evict people not even convicted, and their family goes with them and their children go with them and they are all homeless.
Ted Gottfried: Plus they forfeit all of the assets prior to any criminal charges being decided.
Jim Neuhard: We had some issues starting to seem in common, and our thought process in these wasn’t as simplistic as they like to believe defenders were. Furthermore, I went onto SCLAID, which is the Standing Committee on Legal Aid and Indigent Defendants, which is one of the oldest committees in the American Bar Association, and that has produced more presidents of the association than any other committee as it turns out. I was not a member of the ABA because I felt concerned about their attitude toward blacks and women back in the ‘50s and ‘60s, but they single handedly had saved legal services and were just an incredible committee and I decided to join the ABA if they would appoint me to that committee, and they did. Since then I’ve found that the ABA has been incredibly supportive of what we do both civilly and criminally.
Ted Gottfried: Has SCLAID changed in terms of its interests in defender issues from the time you first came on there?
Jim Neuhard: Yes, absolutely.
Ted Gottfried: Because essentially its job was to support civil legal services.
Jim Neuhard: It still is. I call it the ids the id of SCLAID, deep seeded buried indigent defense, and they had an attitude about us. There is no question the private bar did. Preceding me on there was Shelly Portman and Norm Lefstein, two of the lions in the history of our movement. Norm Lefstein ran the model defender office, the D.C. Defender Service under Sam Dash’s chairmanship of that committee back in the 70s and went on to become a chair of the Criminal Law Section of the ABA and is now dean of the University of Indiana Law School at Indianapolis. But he wrote seminal studies on the crisis in poverty and indigent defense services. Shelly Portman was the defender from Santa Clara County from the late 1960s, now is involved in one of the classic law suits because he stood up in a board hearing and declared that his lawyers were about to commit ineffective assistance of counsel because of the overload and they fired him. He sued for first amendment rights and he’s passed all the summary motions to dismiss and is going to trial in California as we speak. But Shelly was the chair of the consortium that Marshall Hartman put together in the mid ‘70s on the delivery of indigent defense services that was the seminal study across the board, the encyclopedia of issues related to indigent defense. He was chair of a defender committee and a long-time board member. He went on to SCLAID, and the last thing he did was create the Bar Information Program for the ABA. When the LEAA money dried up, the NLADA no longer got any technical assistance money. In its wake he got this roughly $100,000 funded.
Ted Gottfried: Could you describe the Bar Information Program, because I am not completely clear on its origins.
Jim Neuhard: It’s funded by the American Bar Association and its purpose is to provide one, two and three day technical assistance to state and local bar associations, courts, defenders, et cetera, on any information that would help them improve their indigent defense system, everything from how to do a law suit, to raise fees, to what kind of delivery system you ought to have, how to do caseload analyses, what kind of legislation you want, how to write legislation, standards, anything that requires technical assistance. As we learn in one area, we often find there will be two or three – well, I’m getting ahead of myself. Shelly started it. He went off SCLAID the next year. He chaired the Bar Information Program. I came on SCLAID and took Shelly’s seat, much to Shelly’s insistence, and then I became the chair of the Bar Information Program by dint of being the SCLAID member on that advisory committee and Shelly sat on the advisory committee. It started as sort of an exemplary project, a whole variety of things, and within a year of my being there it got down to providing this technical assistance component. It did monographs and all kinds of stuff initially, but we resolved it down to focus on technical assistance, to take off the shelf information, provide a little bit of on-site help, hand-holding, someone to call, and someone to talk to, and then be able to either talk to myself or Bob Spangenberg, who became the primary consultant. Or you talk to Bob and Bob would talk to me and we would figure out a strategy for people. It’s now the longest funded, highest funded ongoing project in the American Bar Association. In some respects it’s conscience money; it’s guilt by this committee who fought so valiantly to save the Legal Services Corporation. That’s been their primary focus. People have moved on to that committee, been placed there strategically to bring together within the ABA the key people on policy issues relating to the Legal Services Corporation. Then there is me. But I got BIP and I said to them it’s a deal, you give us the money, we’ll go out there and we’ll help people at the local level. It’s one of the first hands-on help projects the ABA ever did for local jurisdictions. It is enormously popular. Virtually anything you see happening right now we’ve been part of, whether it’s creation of the national center, backup centers. It’s modeled, if you think about it, the back up centers are and your office, on my legal resources project. That is where it all came from. Not that the idea wasn’t there, but how it is to look, how it is to run, how to be formed came from there. The idea of commissions came from your office. We took learned experiences but essentially the whole . . . fees in federal court came through us, the death penalty fees came through us, and we did the national studies that supported the work in the law suits and the work in Congress or the recent drug money. Ed Monahan called and said who is getting the money. I said I don’t know; we just know some people are. He said well let’s do a study and when it hit the Hill we had the study in place before it was there. He called me in and I called Bob and said you’re going to do it. Then you have the expertise of Bob which is just invaluable. He can go in and do in one or two days what the rest of us might take two weeks to do. So that is what it is designed for, just that, to get experienced people, make them available to people at low cost, and we have these theories that are very accurate about what has to be in place locally before we’re going to make a difference. We call them triggers for change and the trends. What you’ve got to see in place. We structured the Missouri group that basically doubled their fees overnight, told them what kind of people they needed and what buzzers to push and where they had to be, what kind of line-up, how to neutralize the courts, how to get the courts, et cetera. It doesn’t always work, but if you get certain ingredients in place then you can predict you are going to have a very high probability of success.
Ted Gottfried: Let me ask you in the sense of backing up a little bit: I know that prior to this involvement you were involved in some technical assistance around the country. I guess maybe some of that old National Center for Defense and Management, you may have been on some of those, and I know you were involved in amicus as well, which is a form of technical assistance. Could you talk a little bit about that because I always felt that one of the good ideas on doing something like that is all you learn from looking at another office.
Jim Neuhard: That’s a good point and it does play out again in sort of what we’ve carried from the defender movement into the civil movement. There were a lot of foundations for it. Again, Marshall went for an LEAA grant because he saw the problems in the field of people trying to run programs who were essentially lawyers, had no training in management and they’re put into a piranha environment, dog eat dog world, of politics to boot. So you had to manage and you had to do an ethical delivery of services. So Marshall went for an LEAA grant to provide a national center for defense management services really, which predominantly was to go in and analyze programs, provide evaluations, et cetera, but also it got into analyzing systems and recommending the types of delivery systems there should be. But it was providing evaluations and technical assistance to the field. It went through a variety of configurations. Well, the people running it were equally new and there was a high learning curve, but what the heck, a year’s worth of experience back then and you thought you were Dale Carnegie. It didn’t take much to make us full of ourselves.
Ted Gottfried: Where are some of the places you went?
Jim Neuhard: I got all the garden spots unlike some of you who had to go and work hard. I got to go to South Dakota; I got to go to Boise, Idaho; Indianapolis, Indiana. I got to go under two configurations, one on the defense center, to California, with someone named Ted Gottfried, to do an evaluation on a Greyhound bus, but those are some of the areas that I went on site. Again, one of the things that came out of it was good people were chosen to do these and I think you could have put them in the location and simply because of their native intelligence they would have offered something of value to the local programs. But you got teams together of three or four people who went in and had to articulate what they saw locally. First, describe the system, which required a degree of thought and reflection, and the second was what’s wrong about the way it’s working, and the third part was how to make it better. I don’t know that what we suggested was always adopted, but certainly the effect it had on the dynamics of the group and the constant people who went back to the national center building up a level of knowledge, of constancy, culminating in some respects by the study commission clearly was happening. People were articulating constant denominators in all these settings. There was a value structure building up of issues. Some of it was predisposed towards what you brought with it, the my way is better than any way, and what’s wrong with you is you don’t do it my way. But none of the people who were of integrity who did this didn’t come back and say, gee, I panned that program but they did a few things that I would like to do in my own. But clearly it was part of you and the yardstick against which you measured future changes and opportunities for change and things you would like to see, so that when an opportunity for money or a program or a person came along with certain skills you seized the opportunity because of this past experience. Those programs that improved and became somewhat national models and stayed national models is because we put brick by brick in place, much like somebody who went around the world collecting plants. we put a garden together built from ideas we took from not only the places we saw but the people we saw them with. Then the collection of that experience over time in these programs had a lot of substance to them in a lot of areas which made them weather a lot of storms, that had we not done this, I don’t think we would have survived ourselves by knowing about lobbying, by knowing about drugs, by knowing about management, by knowing about cutting edge issues, by knowing about computers. All of these issues, many of us out there seemed to be a step or two ahead of everybody else because we were out in the country seeing this stuff. I remember once I came back from an evaluation and found out about post-it notes, because I was in Minneapolis and where they came from, and I had never seen them, they were the most wonderful thing in the world. I just went and – I couldn’t buy them, I went into their supply room and took bags of this stuff and came back and handed them out in my office like candy. Everybody thought that was a great thing and I said that that is a physical example of what it’s like to go on one of these trips, rarely do you actually bring something back like that. So that was one. The second was, as you saw, there was a need for common denominators. Everybody called events different things and everybody processed information differently, which is okay, except you couldn’t talk apples to apples, county to county, let alone state to state. I found I had these discussions with people and we would be in outraged arguments with each other and the reason was we were talking about two totally different things. Consider an appeal for instance: In my state an appeal means both a direct appeal and post conviction because we unified the process. In other states an appeal is a direct appeal only. We would have these embroiled battles and it was a simple lack of definitional consistency which led to the creation of the amicus system which was named after the fact, not before the fact, which was to put together a manual management system for collection information, providing reports and managing an office. It became possible because of these field trips and those of us understanding what was necessary to manage an office, and it produced probably one of the finest management systems, the simplest systems, ever produced because we kept making it simpler. It would be done and we forced the people in the project to redo it and redo it and then we brought back the more complex portions and made them available – what I call the drive train approach – this is the simple, straightforward, meat and potatoes, get the information so you can manage your office and produce an annual report, and get your money. That process probably professionalized us amateurs more than any single event, those of us who participated in it, those of us who exported it around the country. That really forced us to think and connect an awful lot of issues, what kind of information is important for a variety of purposes, crediting the value of the work an attorney does to getting money from a legislature, to producing an annual report, to producing closed files, counting everything and recognizing that you are doing a hell of a lot of free work.
Ted Gottfried: I imagine that the response you got from many of the heads when you first went, it was that, well, we’re overloaded. We don’t have time to sit down and keep track of all this information and count it, and your response was probably if you don’t take the time to do that you will never have the resources to address . . .
Jim Neuhard: Or you may indeed go out of business. Back then there was a real threat, much more so than now, that a lot of offices were literally going out of existence if you couldn’t justify your existence. It was as much to justify your existence as it was a foundation for budget presentations to show trends, to show the types of work you’re doing. For example, it’s one thing to have an office that handles major felonies, but no first degree murder cases, like the Philadelphia defender office. It’s another thing to have an office that only handles murder cases which is where the appellate office was heading in California. The work difference there is enormous. They are both felonies. One happens to be death penalty appeals and the other happens to be primarily a plea generated or short trial generated trial caseload, and to articulate the difference between those means you’ve got to count well. That, as I say, has professionalized, that happened in the late 1970s. Bob Nichols was the project director on that. That was an LEAA grant. Another person who was critical was Larry Benner, whose name hasn’t come up. Larry was from Chicago, the Cook County PD experience.
Ted Gottfried: No, he worked for our office.
Jim Neuhard: The appellate defender office, okay. But it was part of that Chicago, Illinois group when NLADA was in Chicago and Larry did “The Other Face of Justice” on NLADA which was taking a critical assessment of what kind of defense services were available across the country and documenting it in a statistical way and it was a seminal report. It justified at the national level much of the grants that Marshall got like the consortium grant and the National Center for Defense Services or the National Center for Defense Management. To a large measure all those grants came off the very bleak picture painted by “The Other Face of Justice.”
Ted Gottfried: Nancy Goldberg had worked on that as well.
Jim Neuhard: Nancy Goldberg was a big assistant to Marshall Hartman all the way through. She was his ghost. The two of them were a tag team in defender services. What I was saying earlier, as I went on to SCLAID and then become president of NLADA, I recognized that I enjoyed a high level of credibility because of who I knew on the civil side. Nobody really knew me. The defenders knew me, but nobody on the civil side knew me. On SCLAID one of the first things that came in the door was the civil standards. Well, on the defender side early on, you, me and several others put at a high level the need for standards because we felt you couldn’t evaluate somebody doing all the evaluations we were doing unless you have standards against which to measure them, so we got appellate standards on the defender side. We had the National Study Commission. We were working on contract standards. We were doing death penalty standards, assigned counsel standards, over the last decade, but it was something we made an early-on commitment to, the concept of having standards. Of course, we had the seminal ABA standards that were back there, that sort of was our model for where to begin. They came out of the canons of ethics and they created the criminal justice standards of which the defense function was one. They were just too general and too inadequate when we started our standards. We needed something much more detailed and the Study Commission was the first cut at that. Then we had a series of standards coming out of that. When I got on SCLAID, the first thing they were dealing with was their first set of standards called the civil standards. They went through a huge process to get there and that was in hearings when I come on the commission. Time after time I heard people saying we don’t need this, and it’s too much detail and you don’t need that. I had come in and said on the defender side we had experiences in this state and this state and this state, or we had this experience, or I saw this experience, and put it in here because these standards are used by people as ways to do things. There is no training out there and people use these like: how do I run an office? Well read this and it ought to be as clear a guide to how to run an office as it is a standard with which to measure an office in some of these areas. When it got down to the rules of boards and independents and confidentiality and tons of areas, I said we had this experience in the evaluations we did. We had this experience in the programs we evaluated. We found this about vouchers. We found this about private bar involvement. We found this. People just kept looking at me like I was some kind of genius, and I would say, genius? We’ve been doing this for 20 years, why didn’t you people ask? I got invited to the American Enterprise Institute when they went to war with the Reagan administration. They were trying to do some symposiums of contracts, this new concept; they were trying to do stuff on voucher projects, which we happened to call assigned counsel, and they were doing evaluations. They were surprised that people got fired as a result of these, or could get fired, and I said we closed whole offices as a result of them. They said you couldn’t be independent and do these and still be of the field, and I said hell, we were all from the field doing these programs. But it was all like this was the first time they were seeing it. I waded in and just talked about the defender experience. Sometimes I didn’t know enough about the civil side to make the transition. It was like somebody was there doing sign language next to me, this means this, and this means this. I’d talk about the defender experience and they would translate into the legalese for the civil side. This was early on. What came out of that was, among the private bar and SCLAID, the fact that defenders are brilliant. It was simply – a lot of times when you go to a training conference or I sit down and listen to a lawyer talk about how to try an admiralty case I think god that guy is brilliant, what insights. Of course then I hear the same lawyer sit down and talk about how to do a criminal appeal and then I go, ah, geez . . . you know . . . when you know something about an area . The civil side doesn’t know anything about this stuff and I’m sitting there talking pretty basic stuff from a defender standpoint, those of us who did this; but it sounded brilliant to them I’m sure. Maybe I was brilliant, I don’t know. But it must have been like Marco Polo opening up China in the sense of these people seeing this whole movement of quality work being done by defenders out there. At first I got patronized because it helped the civil side. They still didn’t believe it but it helped them.
Ted Gottfried: A lot of them still had the stereotype of the old drinking guys.
Jim Neuhard: Then there was a San Antonio voucher project with Steve Cox. He was hired to do this study for the ABA, some ABA committee asked for it, they were going to go in and do an experiment, put a contract program next to the staff program next to the voucher and see which one was the best. I said, well that’s interesting, where is the evaluation on quality? I said what have you got a bean counter? I said, “You want to do it fast. Hey let me have it. What’s the reward? How much money will you give me if I can do 5,000 cases a year?” I said we went down this road on the defender side a long time ago folks. It’s easy to do it quick, but it’s hard to do it quick and well. So you find a program that does it quick and well, you’re describing my office. You’re describing a lot of defender offices that are considered to be good programs, but it’s no mean feat to do that, but you have to have quality control in there. You just can’t go in and look at the bean counter. I said what you’ll know is this is fast. I said what are your yardsticks of measurement? I said let’s go in and put the quality control thing in. I said wait a minute you’ve got these projects running already and now you are going to go in and put in yardsticks to measure quality. How do you stop from confabulating that your yardsticks aren’t measured by who you’ve chosen to do this work? I said that’s not the way you do a scientific study. That started it and I ended up getting the responsibility for the ABA to dog this and I came across a whole bunch of people around the country who were concerned about it. The corporation again didn’t care about the result. They simply didn’t care. They just wanted to document what they thought they would find: that the staff programs provided fewer cases at higher dollars and that the private bar did more cases for less money, and that the contract system would work best because the market system would be in place. Or, that the voucher system would be best because they would give the clients a voucher and they would shop for their services. They would go and shop and they could keep basically the best lawyer they wanted and keep the difference in the money, something like that. They were going to evaluate the program by a questionnaire to the clients. I said, well, is the questionnaire in Spanish? This is San Antonio. They said no. I said, did you check to see if these lawyers are on bus lines? They said no. Well, I said, these people won’t have cars, how are they going to shop for their services? Do you make requirements that these lawyers be in accessible places, because the civil legal services programs are right down in the heart of the community. They are. What they found in the first four months was that the no-show rate for the private bar was running at 50 percent. They would come into the staff office, they could draw a name out of a hat, they could go to either their private lawyer or a contract system, and then 50 percent of them never showed up.
Ted Gottfried: They decided it’s too difficult, let’s forget about it.
Jim Neuhard: Well who knows, they didn’t bother to find out why. But the point was there was clearly an impediment that caused the legal services programs to establish offices where the clients had access to them, and this next step of bureaucratic transfer, being bumped to whatever, they were losing the clients. Well they viewed that as a big success because the clients weren’t taking services.
Ted Gottfried: Cutting the caseload, right? Cutting the burden on the courts?
Jim Neuhard: I said that’s like putting in a brand new great emergency room and making it 100 miles from the city! Hey, it’s cheap. We have more than enough beds. People die before they get there. [laughter] Again, it was simply taking the experiences that we had had on the defender side and reducing to the common denominator on the civil side and asking pretty basic questions, making pretty basic observations, and recognizing as we always did that there’s no one right delivery system. There are some critical factors on independence; there are some critical factors that one system may deliver higher quality services in a high volume way in this setting and maybe there is an alternate in a rural setting that would be much more efficient in a part-time way. But not to go in predisposed. I mean you may have your own personal preferences but to have enough sense of the client’s needs that you are getting high quality services and in most cases there is no one best system because it is so dependent on the personalities, who the people are at that time, and you have to put a lot of discretion at the local level. You can’t manage this thing from a central source in Washington; what the priorities are; what the needs are; what the language, travel difficulties are. These decisions have to be made at the local level. Recognize that everything is a compromise and at some point when you choose the place for the office, the hours of the office, the caseloads of the office, you are making arbitrary decisions and you are going to cut out needy people somewhere just by definition of that fact, there is no way to avoid that. What I found was they focused on if one person fell through the cracks. Even though there were 20,000 unserved people, they were serving 5,000. If within the priority they set, then they chose the wrong location because these 10 people couldn’t make it even though 100 more people could – it was stupid. It was just absolutely the worst part. It would be the most primitive evaluation we ever did. This was a Ph.D. who was allegedly running the study. He wasn’t a lawyer. He had no knowledge of the poor. He believed from the beginning that market dynamics would lower the price, that people would shop for services. Later he reconfigured his whole thinking on it but he didn’t change his values. He backed off of it. But that experience again elevated the defender movement and I happened to be the person who was there and I would submit any of us who were part of that first round could have done the same thing, would have done the same thing, without much effort. Just the simple “You people are crazy” without saying that. Having a sense of understanding of how embattled and how irrational the process was. It was war that was going on. The corporation was looking for ways to attack and the experience we had on the defender side was the right message at the right time because there is no more embattled group of deliverers than us. That again I think moved us up in the eyes of the private bar, certainly the leadership of the ABA, not all the private bar, and certainly within the leadership of the civil community – in a real way, in a substantive way. The interesting thing is they attribute it to me still. It’s a cult thing that at this conference people would come up and say we are going to miss you in SCLAID because of your analytic ability, your insights. They haven’t made the transition yet that there are many defenders who can provide that insight, who unfortunately for the last ten years have had very little opportunity for technical assistance. So a number of people who have grown naturally without much effort to the level of insights are not increasing because there are very few opportunities to get us out into the field, to cross pollinate ourselves and others.
Ted Gottfried: Let me ask you something, I wanted to touch briefly on it. Some years back around the time Clint Lyons first became executive director, NLADA was in really a very serious fiscal crisis and a lot of people felt NLADA was not going to survive. I think you played an important part in trying to develop a strategy to bring NLADA back. Can you speak a little bit about what went on then?
Jim Neuhard: That was an interesting issue. There were defenders on the executive committee which was really the governing board, even in the reduced board, the five person executive committee, the president, the president-elect, immediate past president and representatives from the civil defender and public community and client community. There was five, six, seven people on the executive committee. In the aftermath of leaving when the Reagan people came into the corporation and Clint Lyons left there was a series of grants that were made to the NLADA, substantive big money grants to do projects that the Reagan people characterized as the government in exile, and wrongfully so. But it was an attempt to get substantive programs going in the field that most people presumed or thought might not be done under the Reagan administration but had to be done. They were important programs, leadership programs and research programs and the like, and those grants were made to the NLADA. Well, that money came in and was placed in an account and NLADA ran its operation and a lot of the substantive people in the association were made out of those grants. Well, when the grants ran out the people were continued, and the association ran up a huge deficit as a result of it. Veryquickly there was a winding down going on, even before Clint came. When Clint came in, there was a deficit. But the people who were on the executive committee in large measure were substantively oriented, but not cohesively oriented as managers. They were into programs. They were grants. LEAA was not that far gone and they were still substantive oriented people. What they needed were people to come in and say okay, we’re going to manage NLADA. There are some hard decisions to make to bring the resources into line with realistic budget projections. And myself, Ralph Smith, who was a private bar member, and Victor Geminiani came on the executive committee, whereas Clint came in and essentially said no way Jose, we’re not going to pass this budget. It’s too unrealistic and we cut it, cut it, and Clint had already cut it, and we cut it another $150,000. Clint, on the other hand, came in and had the confidence of the civil field, which had been lost because of PAG’s hegemony and a lack of confidence in the civil committee of NLADA, PAG had supplanted it. When Clint came in within about two years PAG was back in the fold. He gradually increased the fees and dues to bring it up into the modern world. He brought in staff that was willing to work gargantuan hours on contracts and no salary like Bucky and Andrea and managed incredibly well. There were board members who quit out of fears of law suits, that they would be sued personally from the ABA. I remember calling Ben Lerner who was the first defender director of NLADA at one point and saying to Ben, you know Ben, these civil people, the bar people, think we’re in trouble. I said, jesus, as a defender if I ever got involved in a situation at this stage I think it would be wonderful – there are still things we can do. We always get them in my case after they’ve been tried and convicted, and the train is wrecked and now they’re saying help. We’re far from that point. When it looks like it’s getting scary don’t ever forget that you are a criminal defense lawyer and this is a cake walk.
Ted Gottfried: It’s interesting you said that about a criminal defense lawyer because I’ve often felt this as well, that maybe one of the strengths that public defenders have is that when everyone hates you and despises you, you still have to go in court and fight as hard as you can for your client. One of the strengths that you get is that you’re not afraid of anybody.
Jim Neuhard: You learn early on. It doesn’t mean you aren’t socially uncomfortable when you go up to the legislator and have to meet them and you don’t know how they are going to treat you that you are going to be rejected or whatever, you are going to have asparagus in your teeth kind of thing. But once the fight starts, and you start thinking like a lawyer – the best advice I ever got – two pieces came out of this. One was this old legislator, my mentor on the Supreme Court, Thomas Charles Cavanaugh. This guy is an old time Republican. And T.G. was Pollyanna. Thomas Charles would say everybody can be converted and everyone is wonderful, and everybody isn’t wonderful and everybody can’t be converted. But he said to call up Mr. Lodge, oh he’s a curmudgeon. I walked in to meet him and I introduced myself: “I’m Jim Neuhard from the Appellate Defender Office. I run the Appellate Defender Program and we need money.” He’s in this big ornate office in the senate chambers with two story ceilings. He looked at me and said “Who are you?” I think he is deaf or senile. I said, “I’m James Neuhard . . .” He interrupted and said “ I heard all that, you think I’m deaf? Who are you? How is it that you spent all of this money, of the people’s money, and I never heard of you before?” And I said, “Well . . .” He said, “No, no, no! If you’re as good as you say you are I should have heard about you. Don’t hide your light under a bushel! It’s not good for your people” That was advice number one. Then I said I’m up there to be taught, and he says, “Are you a lawyer? We’re no different from the worst jury you’ll ever see!” He said, think like a lawyer. He said, “We pay you all this money, put you through law school, train your mind, and you come up here and want to act like some goddamn lobbyist. He said, think like a lawyer, figure out who it is, what’s going to move them. If you’re going to win . . . I use a bridge analogy that if it’s the worst hand in the world and to make this hand the queen of spades has to be in this man’s hand, that’s the way you play the whole game. Doesn’t mean you’re going to win, but if the queen turns out to be there, you’ll win. But it’s having a plan that you think through about what it’s like to win. Those are the two best pieces of advice I ever got. And when I came to NLADA about what the problems were under that kind of pressure of a 75-year-old organization split asunder by divisions and driven by all kinds of concerns, distrust, animosity, under attack from the Reagan administration, FBI investigations going on, the money cut out consciously from supporting defender services, consciously being cut out and the only approach I had was, well . . . a death penalty trial is worse than this. We’re right. We’re doing good work with high quality people, and our strength is our membership and our mission. And we’ll go with that, do it well, live within our resources and get an enormous amount of energy and respect out of the people around us and not be afraid to make the hard choices. That, in my case, what I brought to it was, and Victor brought to it was, cut the budget back to realistic resources. Now the resources expanded faster than our budget, so it gave us flexibility to continue to bring in contract people and expand and expand. And as we expanded and expanded the confidence in the field came back. The defender side has taken a decade I think, but I think we’re just about ready to break through on the defender side. The civil side came through because the fight for legal services was a national issue focused in Washington and where we could do the easiest work.
On the defender side we began by saying we had to bring back training, we had to bring back meetings. Only through national interaction could we begin to analyze, understand the needs and progress the development and improvement of large defender delivery models. For defenders NLADA was the only national organization that had any opportunity to do this. If we were to have these occasions we need strong motivations for locally focused defenders to pay the cost of coming to national meetings. We had to provide these reasons and occasions to meet.
One issue that provided this motivation and dominated the list of needs was the return of the death penalty and developing the ability and competence of defender offices to handle these cases. We needed to develop attorneys competent to handle death penalty trials. Not only had a generation gone by without any trials on death cases, but a raft of new defender offices came on line without any experience in trying death cases. So we brought back national training on the death penalty. When I became NLADA president, I set death penalty training as the highest training priority, then made getting funding for it the second priority. As I go out as president, there a lot of things I can look back on with pride, but for me, from the defender’s perspective, it was getting all that federal money brought into death penalty work especially when they told me it could not be done. It’s not so much that it was a lot of money, but it’s the fact that people said, “You can’t do this,” I remember a meeting when Norm Lefstein and Bob Evans and NACDL people laughed at the idea that we were going to get federal money. That’s the history of my life, being told you can’t do that.
Ted Gottfried: And feeling that that set up an appropriate challenge.
Jim Neuhard: Yeah. You can’t provide quality work. Last night at the meeting when Justice Archer was talking about it and he meant it, it’s true: we do, and I’m sure it’s true in your state, we do the highest quality work before their court, and they know it. We’re the best lawyers in the state at the appellate level. Not because we’re brighter. I always tell my lawyers if you are not better than the average lawyer there’s something wrong because that’s all you do, and you damn well better be good. If you aren’t then get the hell out of here. You’ve got the wrong calling. You’re a specialist. It’s caring. One question I think you should end any of these interviews with is, “Why do you keep doing it?”
Ted Gottfried: I’ll ask you some more things but why don’t you address that now.
Jim Neuhard: I guess there is a fear factor of changing, I mean, what else could I be good at, having done it this long. But, primarily, it’s the reason I went into it on the first day. I don’t think much has changed on that. An appellate defender has clients and the luxury of thinking about the law, and what it is, what it should be. I’ve got theory; I’ve got real world clients; I’m not just in a law school like a law professor and I’m not just overburdened with representing clients. And a bonus as a director I don’t have the ungodly pressure of the caseload and the ungodly trauma of the victims and the people in prison. Aa a side note, as a director in a non-death penalty state – thank god we don’t have the death penalty, which is another issue I spent a lot of effort on – keeping Michigan as a non-death penalty state. There were two major efforts to bring it to Michigan. I spent hundreds hours and made over 300 speeches about it. Keeping the death penalty out of Michigan may be my crowning legacy. I can’t imagine the pressure and desolation of defending clients sentenced to death. But again what made the victory special was being told it was inevitable that it would be brought to Michigan. The hype, the political mileage candidates were exploiting was intense. Being able to organize the opposition and maintain Michigan as the first English speaking government to abolish the death penalty was extremely gratifying. It married, advocacy, my values, leadership and real world results all in one. Amazing!
But being able to say those are the things that I did, let alone what the future holds, as people in my office said whether it’s been the automation issues that we’ve been on the cutting edge, or the brief bank services or any number of things we’ve done first, or more or whatever of, all those are vehicles to making law that is humane and real, that matters.
What people do not get, is that what we advocate is not simply opposition for its own sake. We’re not anarchists. We live in this society. I go home at night and live in the world that I supposedly put these criminals back into. I want to live in a safe society but I want to live in a society that is humane, just and responsible to the rule of law.
The reason our Founders put these rights into the constitution and made them hard to get rid of is just because, under pressure, the enumerated rights are the first ones those in power or the majority want to get rid of. Think about it. When does freedom of the press matter? The right to assemble or the right to criticize those in power? The right to be presumed innocent? The right to bail? The right to be free from government searches?
They matter most when there is civil unrest, when the majority feels threatened by blacks, immigrants, crazed religious fanatics. What we do is continue to stand in the way of the pressure to do what everyone knows is right. When asked, “How can you represent those people?” I know intuitively and to the marrow of my bones why I do what I do. Without the right and duty to do what we do, the times will bring out the worst in us and our leaders. The majority will return to the equivalent to the lynchings of the last century. For if the police always get it right, you certainly do not need, us, or prosecutors, or judges or juries.
The whole history of humanity has been the struggle to control the powers of government, and the opening up of government to all the people, to not be mere chattel and pawns. And what we do is – the epitome of what government will do is beat up on the defenseless in times of high stress and strain. Admittedly, these people, who are our clients, run the gamut of petty thieves to people we don’t understand in a glimmer yet in our world. But maybe in 20 years we’ll look back with shame that we treated these people as criminals because we’ll understand it was a chemical imbalance or whatever we’ll know about deviant behavior. But to stand there and articulate the defense of what the society at that moment deems to be the pariah of all time in this small community or big city, and insist that they be treated decently and fairly, is the epitome of the struggle of humanity to me. There is nothing that personifies it more. It’s beyond politics. It’s beyond Democrat or Republican. It is the absolute struggle of humanity – to keep the people with power to protect the rights of those without and that is who we are. I think it’s an extraordinarily interesting, rewarding effort. As managers we get to play it out in the legislature. We get to play it out for getting resources for our people. We get to play it out by making speeches, by responding to the media and we sing the song all differently, but the common denominator in it is this expression of the individual versus the powerful, manifested by society wanting to take their life or take their freedom, or to fine them, or punish or chastise them, or mark them, and that is where we are to stand up in the midst of all this craziness. The movies that moved my soul as a kid, whether it was To Kill a Mockingbird, any of the Darrow movies, in the midst of hysteria to be the person of principle who stands up and says wait a minute, before you hang them let’s talk about this. It’s the hallmark of decency. It’s the way any of us wanted to be treated. What I find interesting is when I find people who resent what I do, I ask them in their personal lives at work do they want to be subject to arbitrary and capricious, unthinking, reflexive reaction, or do they want a process that slows down and takes a breath and says wait a minute. That is what we do but the stakes are a lot higher.
Ted Gottfried: Let me ask you one last question and that has to do with since you’ve been president, both looking at legal services programs and defender programs now, and what you see in the future for legal services and defender programs.
Jim Neuhard: That raises a whole myriad of questions. I wonder if there will be staff programs. I wonder what technology is going to do in general. I think the wall-less office, the wall-less client visit is coming. Once security is built in, the ability to deal with clients, judges remotely, I mean I’m working with the court of appeals to do remote orals, that they will be in my office and they will be in their offices and we’ll do it all electronically. Not moving the bodies – the wall-less concept. The implications are far beyond whether to have a defender office or not. I mean there will be implications of practice. It’s going to be more seamless. I wonder about the third party pair and the demise of the private pair, like in the medical provision, how it changed the medical provision that the memory of being the sole practitioner providing services to a medical client, but the HMO and all of its progeny may not be far behind as the primary delivery mechanism for all forms of services. But recognizing there will be some form of structured service and training and specialization in criminal law. My guess is that the goal has to be full client service with the recognition that frequently in one family you could have five clients, all having conflicts, you know, husband, wife, a child, step parent, and grandparents. Thee recognition that the definition of life is going to change and become relevant from whose life you take to how much of a life you take, chemicals and the interaction of when life is formed and the consequences of the mother who takes drugs and who has a fetus. And, there are kinds of issues out there that are going to cross over into ethical civil issues and needs that once and for all I think we’ll in some respects eliminate the artificial distinction between a defender office and a legal aid office. The needs of the average citizen of America, and this is Earl Johnson’s and my approach, Earl from the civil side and mine from the criminal side, that access to the third branch of government requires counsel. At its simplest level you can’t do it without counsel. Life is too complex and in many respects I view access to the court like public education or libraries, there ought not to be a right to counsel qualification and there ought not to be an economic litmus test for qualification. You can be rich or poor and use the library. You can be rich or poor and use public schools. You can buy your own books or you can go to a private school, but the citizen of America ought to have access to their courts through counsel. The justice system probably takes less than two percent of all resources at all governments at all levels. To provide universal access to the courts would probably raise it to the three or four percent of the gross governmental budgets. But to me, finding a way to create universal access – this is the first time in the history of America where access is being limited to the courts, where the solution to the overcrowding is to get rid of access, habeas corpus, jurisdictional limits, specialized access to mandatory arbitration, mandatory mediation, mandatory whatever, the civil people, non-judges et cetera, but literally diminishing access to justice, in some cases eliminating it totally. Getting rid of lawyers, you don’t go to court, getting rid of civil people. I think that’s transient. I think what the Reagan administration characterized as a litigious America is a myth. I think that most of the world is going to move in the direction of having mediation methodologies, arbitration methodologies, and lawyer methodologies in a complex world of solving disputes. It doesn’t mean courts as we think of them, but access to an independent tribunal provided by government is going to be critical and I think that it is going to boom. It serves a tremendous societal need in an anonymous world when you don’t have access to the social pressures that would resolve issues. You just don’t do that in our world; that’s gone. The senior, the elder solves the problem, that’s disappearing where it exists. The family courts, neighborhood courts, elder tribal justice, every time civilization comes – and I’ve been in these systems around the world – they are gone. It’s almost like the Berlin Wall. When it’s gone everything tumbles behind it and society becomes instantly more anonymous. When that happens, normal social controls diminish and there is almost invariably a need and demand for impersonal dispute resolution mechanisms. I think as the advent of more minorities, more women, more disparate outsiders go into the system the need increases for dispute resolution as the family controls become more complex with second and third marriages and step parents and surrogates parents and all this stuff, the need for Solomon-like judgment by an anonymous person increases. I think the artificial division between civil and defender, whether you are beset by government, which is the traditional demarcation for criminal services, will also diminish as the role government changes and evolves and intrudes itself into our lives in ways that are inevitable and necessary in some respects. So as I look down the road I think you may not see a defender office as we think of it. It may indeed be some creature where lawyers are housed and don’t ever see the common office any more or may have intake mechanisms where there are seamlessly two or three lawyers working on the same file, civil and criminal, but don’t enter the same site and the client is about to talk to them all simultaneously. I see coming a decrease in the disparate nature of the funding mechanisms or unification of those funding mechanisms. The most obvious change will be civil offices getting defender contracts, which is going on right now. You know as the civil programs that provide quasi-criminal services grow in number, like juvenile services, or where they are being provided with misdemeanor services or paternity cases which are gaining right to counsel in most areas where the putative father might face contempt in jail for nonpayment, those issues and once that happens and further distrust and barriers break down, I think you are going to find more and more programs trading and moving and building resources, common training programs, management programs, ethical training programs and more and more programs wanting to provide total client services. There is a brand new program that began in Harlem modeled on in some respects the old consortium out of Cook County, where it’s a neighborhood office, clients can come in before they are even charged; they can provide any unmet legal need of the client, like when they come in they can take care of a divorce that might be happening to them. There might be a civil suit, or drunk-driving accident; there might be custody cases with their children; they might be trying to take them away. They can handle all the issues.
Ted Gottfried: Where did they get their funding?
Jim Neuhard: It’s a Vera Foundation grant. I think that’s an example of the seamless office. I mean it is criminal and its reason for being is criminal cases but its charge is to handle the problems of the family or the client or the family that comes out of that first contact.
Ted Gottfried: Well I want to thank you for this interview. You’ve led a life dedicated to improving legal services for indigents and I think that anybody who uses this tape will be educated by it.
Jim Neuhard: It’s a pleasure.