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Expert Report of Edward C. Monahan

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Expert Report of Edward C. Monahan EXPERT REPORT OF EDWARD C. MONAHAN 1 TABLE OF CONTENTS I. QUALIFICATIONS ....................................................................................................... 1 II. SUMMARY OF FINDINGS AND RECOMMENDATIONS ....................................... 2 III. DATA AND INFORMATION CONSIDERED IN FORMING OPINIONS ................ 3 IV. FACTS, ASSUMPTIONS, AND METHODOLOGY .................................................... 4 A. 81 Sampled cases ................................................................................................ 4 B. 35 Case files ........................................................................................................ 8 V. OPINIONS AND BASES/REASONS FOR THEM ...................................................... 9 A. Legal obligations of governments to provide counsel Right to counsel when facing possibility of loss of liberty ............................................................ 9 B. There are 8,725 cases in Lexington County Magistrate Courts with charges for which incarceration is a possible sentence ............................. 15 C. 5,312 to 6,185 indigents did not receive the assistance of counsel in 2019 in Lexington County, South Carolina Magistrate Court ...................... 17 D. Requirements for adequately funding and staffing public defense in Lexington County’s Magistrate Courts ............................................................. 19 1. National Standards for Public Defender Workloads ............................. 21 2. Ethical Rules Require Reasonable Workloads ..................................... 22 3. ABA Workload Standard - National Maximum Standard for Over Four Decades: 400 .................................................................. 23 4. NAC Caseloads Translated to Hours .................................................... 23 5. Maximum number of cases for a properly staffed attorney .................. 23 6. 13 - 16 attorneys are needed to adequately serve indigent clients in Magistrate Court. ................................................................... 25 7. The ABA Ten Principles Workload Standard Is the Maximum Number that Can Be Handled ............................................................... 25 2 8. Support staff .......................................................................................... 26 9. 4 - 5 investigators are needed for the indigent defense cases in Magistrate Court ................................................................................... 26 10. 4 - 5 social workers are needed for the indigent defense cases in Magistrate Court ............................................................................... 27 E. Practical considerations/reasons weigh in favor of provision of counsel and for adequate staffing ................................................................................... 28 F. Staffing and funding of public defense in Lexington County’s Magistrate Courts is and has historically been inadequate ................................................. 31 1. Lexington County has historically underfunded the Public Defender Office .................................................................................... 32 G. Lexington County Magistrate Courts have structural, pervasive and serious constitutional deficiencies .................................................................... 33 H. An efficient, yet deeply problematic pattern and practice ................................ 36 I. Waiver of the right to counsel colloquies are deficient and trials in absentia are unusually high ............................................................................... 38 1. Every reasonable presumption against waiver of counsel must be made. ................................................................................................ 38 J. The boilerplate waiver of counsel form is written at a college grade level and is not readily comprehensible to ordinary defendants ....................... 39 K. Rote, mechanical, automatic waivers................................................................ 43 L. Trials in Absentia .............................................................................................. 46 M. Lack of counsel has deleterious effects for clients who face fines beyond their financial means, and lifelong collateral consequences that result from lack of counsel .................................................................................................. 48 1. Magistrate Judges must conduct meaningful ability to pay hearings ... 49 2. Collateral consequences of a conviction ............................................... 50 3. At show cause hearings, convicted persons are unrepresented ............. 52 3 4. Social and government costs ................................................................. 52 5. Attorney at first appearance and value of an attorney: lawyers make a difference .............................................................................................. 53 N. Lexington County’s practices lag behind other comparable South Carolina and national public defense county and city programs ..................................... 56 1. City of Beaufort and Town of Bluffton, South Carolina ...................... 56 2. York County, South Carolina ............................................................... 57 3. Denver, Colorado .................................................................................. 57 4. Aurora, Colorado .................................................................................. 58 5. Atlanta, Georgia .................................................................................... 59 6. National standards of practice ............................................................... 60 a. Appointment and waiver ........................................................... 60 b. Fines and fees ............................................................................ 60 c. ABA Ethics Opinion ................................................................. 62 d. Workloads and support staff ..................................................... 63 VI. SUMMARY OF FINDINGS AND CONCLUSIONS; RECOMMENDATIONS ....... 63 VII. FINDINGS .................................................................................................................... 64 A. Remedies, at a minimum, include ..................................................................... 65 B. Consequences of deficiencies ........................................................................... 66 VIII. ANTICIPATED FUTURE WORK .............................................................................. 66 IX. EXHIBITS .................................................................................................................... 67 4 I, Edward C. Monahan declare: I. QUALIFICATIONS I have been asked by counsel for Plaintiffs to render an opinion on the provision of counsel in Magistrate Courts in Lexington County, South Carolina. I served as a public defender with the Kentucky Department of Public Advocacy, the agency charged with the delivery of public defender services throughout Kentucky, for 38 years from 1976 to 2004 and from 2008 to 2017. I was the Public Advocate, which is the chief administrator of the Department of Public Advocacy, for Kentucky from September 1, 2008 until September 15, 2017. As the Public Advocate, I oversaw 545 full-time staff statewide. In the 2017 fiscal year, the Kentucky program provided representation in 162,485 cases at every level of the Kentucky criminal justice system. Major initiatives during my term as Public Advocate included reforms to pretrial release and expansion of alternative sentencing programs focused on alternatives to incarceration. Before that, I was Deputy Public Advocate from 1996 to 2008. I also served as Training Director from 1980 to 2001 with responsibility for developing and producing practice education and development programs and publications for Kentucky public defenders, investigators, paralegals, mitigation specialists, and legal secretaries for trial, appeal, and post-conviction levels. Over the course of my career, I have personally represented criminal clients at trial, appeal, and post-conviction, including capital clients. Since September 2017, I have worked as a criminal defense consultant, doing program evaluations, consulting with public defense programs, and training defenders and criminal defense lawyers. I serve on the National Association of Public Defenders (NAPD) Systems Builders, Workload, Fines and Fees, and Steering Committees. I am currently a member of the Kentucky Association of Criminal Defense Lawyers Board and co-chair of the Education Committee. I am chair-elect of the ABA Government and Public Sector Lawyers Division Council. I am a graduate of the Columbus School of Law, The Catholic University of America, Washington, D.C.; Law Review, staff member 1974-1975, Associate Editor, 1975-1976; Degree: J.D., May 1976. I previously provided an expert opinion in the 2018 litigation in Nevada, Davis v. Nevada, Case No. 170C02271B by affidavit in consideration of whether the case should be certified as a class action. In that litigation, I was asked to render an opinion on whether the public defense contracts were structured to provide meaningful representation of clients in the rural Nevada counties. I reviewed the contracts for requirements to comply with national and state norms including workload limits, adequate staffing, training, compensation,
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