An Interview with Delaware State Public Defender J. Brendan O'Neill
Delaware State Public Defender J. Brendan O'Neill
NAPD: Tell us about your career as a public defender?
My first job as a lawyer was in 1975 in the Los Angeles County D.A.'s Office. After a little more than a year as a Deputy D.A., I joined the U.S. Attorney's Office in L.A. After a couple of years as a federal prosecutor, I quit practicing law. For about a year, I sold semi-conductors (computer chips) to computer manufacturers in southern California. When that got boring, I started a private criminal defense practice in Santa Monica. I did that for about 14 years and thoroughly enjoyed the experience.
In 1992, keeping a promise to my wife, I took the bar exam in her home state of Delaware. I ended up passing and, in 1993, we made the decision to move to Delaware. I tried to get a job in the Delaware PD's Office but there were no openings. Instead, I went to work in the Delaware Department of Justice's Civil Division. About two years into that experience, Delaware's Chief Public Defender offered me a job. I jumped at the chance to return to criminal defense work.
In the PD's Office, I went to work defending clients charged with felonies in New Castle County Superior Court. It was stimulating work. At the time (1995) the Delaware PD's Office was fairly well resourced. Adequate support staff was available to assist lawyers defending clients charged with felonies. Over the next few years, in addition to a regular felony caseload, I was part of defense teams representing a number of high profile clients facing capital murder charges. Through hard work, and a lot of luck, our defense teams succeeded in preventing any of our clients from getting a death sentence. The capital trials led to a bit of local notoriety for me and a promotion within the PD's Office to Chief of Legal Services. The promotion brought a pay raise, a reduced caseload, and management responsibilities.
Most of the time, I enjoyed the management end of things. I was busy enough that I did not miss having a full caseload. My experience as a private practitioner had taught me that a successful criminal defense practice must be a client centered business. Whether it's a paying client or an indigent client, he/she deserves a robust effort from his/her lawyer. My main goal as a manager was to generate and sustain a culture of enthusiasm within the Public Defender's Office. My thinking was/is that if everyone buys into the culture of a client centered, aggressive defense practice, all the other stuff needed to succeed will come more easily.
NAPD: What led you to move into leadership?
In 2009, Larry Sullivan, Delaware's Chief Public Defender for 39 years, decided to retire. I had been Chief of Legal Services for the PD's Office for a few years, so I figured I could do the job of being Chief PD. My thinking was that I was as well qualified as anyone for the job. I applied and Governor Jack Markell appointed me to a six year term. In 2015, Governor Markell re-appointed me for another six year term.
NAPD: Tell us about the Delaware public defense system?
In 2015 Delaware's General Assembly passed legislation transforming indigent defense across the state. The legislation created the Office of Defense Services (ODS) comprised of three branches: Central Administration (CA), the Public Defender's Office (PDO) and the Office of Conflicts Counsel (OCC).
The Central Administration is the business manager for the two separate law practices within the ODS. The executive team, client intake, human resources and fiscal, IT, and training and development are all housed within Central Administration. The PD's Office is a full service, publicly funded criminal defense law firm staffed mostly by full time state employees. The PDO is the primary defense firm for indigent people accused of crimes in Delaware. The Office of Conflicts Counsel is an organization of independent contractors who defend indigent clients that the PDO cannot represent due to conflicts of interest.
As a result of the 2015 legislation, Delaware's indigent defense system operates independently from the judiciary. PDO and OCC attorneys are not appointed or assigned by the Court and they are not paid by the Court. PDO and OCC attorneys do not need to get the Court's approval to retain experts, investigators or other ancillary services. All that is done through ODS' Central Administration.
NAPD: What are your top priorities as Delaware Public Defender?
1.Do whatever is needed to give every ODS client the best possible defense;
2.Generate a culture of enthusiasm within our organization for the work we do;
3.Maintain our client first approach going forward;
4.Secure sufficient funding so that our lawyers and staffers have enough time and resources to provide the quality representation our clients are entitled to;
5.Be an advocate in the Delaware General Assembly for criminal and juvenile justice reform.
NAPD: How would you describe your leadership philosophy?
Our basic approach is to encourage all our people to show up on time, be enthusiastic, do their best and treat everyone with respect. We try to keep lawyers and staffers in the loop about stuff that will affect them. We try to publicly recognize our individual and organizational successes and stick to our short term and long term goals. When delegating work, we try to make sure the person getting the assignment knows that management will support his/her best efforts, irrespective of the outcome. Also, we try to publicly credit the individuals whose efforts result in successful outcomes for our clients.
NAPD: What is your organization's greatest strength?
Without question, our greatest asset is the commitment of the people working in the Office of Defense Services. When we're all working together for the good of our clients, we end up getting better results and enjoying our work more.
NAPD: What are your organization's biggest barriers?
Delaware is not unique in that it's a struggle to get sufficient resources for indigent defense. Like many states, Delaware faces budget challenges every year. In recent years, the General Assembly has understood and accepted the costs of running the Public Defender's Office. However, the legislators have suffered from sticker shock when it comes to funding the Office of Conflicts Counsel. Our biggest barrier has been educating and convincing the General Assembly that a robust conflicts office is required to protect the Constitutional rights of all Delawareans charged with crime. While nearly all members of the General Assembly agree with an indigent accused's right to counsel, some members balk at the price tag for the conflicts counsel program. In the last two budget cycles, funding for the Office of Conflicts Counsel has been our most consistent and most pressing concern.
NAPD: Many organizations struggle with how to provide conflict services. I notice you have an Office of Conflict Counsel. Can you tell us more about that?
In 2009, soon after I became Chief Public Defender, then Chief Justice Myron Steele encouraged me to take over the conflicts program. At that time, the conflicts program was a balkanized mess. It was run differently by each court in each county. Essentially there were nine different programs operated by court staffers, each managing their particular conflicts program on a part-time basis as their third or fourth priority. The lawyers in some courts/counties were paid via flat rate contracts while others worked for $60 per hour. Lawyers experienced long delays in getting paid and had to request funding from the court for investigators, experts, etc. In short, the conflict system was in crisis.
After some delay, with the help of Chief Justice Steele, we got funding for 2 full time employees to start the Office of Conflicts Counsel. We started with a Chief Conflicts Counsel and a paralegal. They managed a statewide network of about 30 lawyers who represented the vast majority of indigent conflict clients. While this was a good faith start, it soon became apparent that we needed a more rigorous, more fully staffed structure for the conflicts program. To achieve that, we drafted, got passed and signed into law the legislation creating the Office of Defense Services. As a result, we now have the ODS comprised of its three branches: Central Administration, the Public Defender's Office and the Office of Conflicts Counsel. Additional full-time staff, including another paralegal, managing attorneys in Kent and Sussex Counties, and a Psycho-Forensic Evaluator, were added. A few other part time and contractual positions have been added to assist with ancillary matters. However, OCC still needs additional staff and resources to meet its Constitutional obligation.
NAPD: Tell us about what you've done to tackle the problems with excessive workloads and where your efforts stand?
Every budget cycle we document the caseloads our lawyers handle in each of our practice areas. At present, our attorneys defending people charged with felonies in Superior Court and our appellate lawyers are carrying caseloads which are pretty close to the ABA standards. Our misdemeanor and juvenile defenders are carrying caseloads way above the ABA standards. Every year we explain to the General Assembly's Joint Finance Committee that these excessive caseloads not only deprive Delawareans of their right to effective counsel, they put the State at risk of civil lability. To date, we haven't been able to pry loose the resources necessary to hire more lawyers to reduce the caseloads for our misdemeanor and juvenile defenders. In the meantime, we advise all of our lawyers to take their time for each client and do what is needed to represent each client vigorously. If/when the Court gripes about lawyers taking too long, ODS management supports the lawyers. One of our management team's goals is to make sure our lawyers know that their management supports them. We have managed to obtain a few federal and state grants to add additional contract attorneys to help in specific areas, such as juvenile sex offenders and juvenile delinquency matters, but these positions do not address the long term staffing shortages that lead to excessive caseloads.
NAPD: What problems with predatory practices (jailing for failing to pay fines and fees) do you have in Delaware area?
In my opinion, Delaware does not have a systemic problem of locking people up for failure to pay fines. While there are individuals who are held on bail for warrants issued for failure to pay, these cases appear to be outliers. It may be one area where Delaware's criminal justice system emerged from the Dark Ages without having to be dragged.
NAPD: What progress have you made with pretrial release reform?
In 2015, Delaware was awarded a federal grant to review and reform pre-trial release and, thus, became a Smart Pre-Trial Demonstration site. ODS is a partner on the overall policy committee and serves on many of its subcommittees, including the legal analysis subcommittee. As a result of the committee's efforts, legislation was introduced this year to streamline pre-trial release. The proposed legislation emphasizes using non-monetary conditions of release for low and moderate risk individuals. One of the goals is to prevent indigent defendants from being held for simply a lack of funds. The legislation passed the Delaware House but stalled in the Senate. It will be heard next session which starts January 2018. Additional legislation that includes preventive detention may be introduced. ODS has not taken an official position on preventive detention but continues to work with the committee to ensure that any legislation drafted does not have negative effects for our clients.
NAPD: How do you maintain relations with the client community?
Members of ODS' management team regularly attend and participate in community meetings addressing the full range of criminal justice issues. A faith based group, a neighborhood association or any other community organization can solicit a speaker from the ODS through our website. ODS lawyers or staffers will appear free of charge at any community event requesting us to participate. In addition, we have upgraded our website to make it more user friendly and informative.
NAPD: Tell us about your efforts to improve diversity in your organization?
Our Central Administration and Public Defender's Office support staffs are fairly diverse, at least in our northernmost county, New Castle. The Central Administration and PD's Office support staffs include a mix of minorities approximating the ethnic/racial makeup of our state. The Central Administration and PD's Office staffs in our two southern counties, Kent and Sussex, not so much.
When a support staff job does come open, we have looked for the best person to fill the opening. Although the ODS has not specifically focused on minority recruitment of non-lawyer employees, 20 of ODS' 92 non-lawyer employees are minorities (22%).
At present, the PD's Office employs only 5 minority lawyers. Our biggest hurdle is that we only hire lawyers who are already admitted to the Delaware Bar. When we bring a new lawyer on board, it's the result of a lawyer having left the PD's Office. We can't just hire a lawyer because we think he or she will be great fit for our office. We must have an open slot that needs to be filled and, we must get permission from the Office of Management and Budget to fill that slot. In practice, it works out that we need a lawyer who can go into court immediately after being trained. Very, very few minority lawyers are members of the Delaware Bar. The dearth of minority lawyers licensed to practice in Delaware really limits our ability to hire minority lawyers. For example, last year we had 2 minority law clerks who worked for us for 2 summers. We made job offers to both, conditioned upon their passing the Bar exam. Unfortunately, neither passed the 2016 Delaware Bar exam. Consequently, we could not hire them.
Notwithstanding the problem noted above, the PD's Office does seek qualified minority applications by participating in the minority job fair at Delaware Law School. In all candor, we've not had any success to date.
NAPD: Please tell us about your juvenile expungement clinic?
In 2015, as a result of an outstanding proposal from ODS' Chief of Legal Services Lisa Minutola, the National Juvenile Defense Center (NJDC) awarded Delaware the” Smart on Juvenile Justice: Enhancing Youth Access to Justice Initiative State Reform Planning Grant”. Through this grant, Delaware created the Smart on Juvenile Justice Advisory Committee and six workgroups to draft a strategic plan to improve Delaware's indigent juvenile defense. One of the six workgroups focused on Post Disposition issues, specifically, expungement. In 2016, again through the efforts of Lisa Minutola, the NJDC awarded Delaware the Smart on “Juvenile Justice: Enhancing Youth Access to Justice Initiative State Reform Implementation Grant”. As a result, in 2017, ODS was able to hire a Post Disposition/Expungement Coordinator to handle juvenile expungements. To date, ODS has held 4 clinics with 2 more planned in July and August 2017. ODS trained over 50 private attorneys to handle these cases pro bono and refers cases to these attorneys on an ongoing basis. To date, over 100 children have had their records expunged, with many more cases pending relief. In addition, for the last few years, through Lisa Minutola, ODS has advocated for expanding Delaware's expungement statutes. Those efforts culminated this Spring with the passage and signing of SB 54. Under this bill, adults with juvenile adjudications who rehabilitate and go on to be successful will be able to petition for expungement.
NAPD: You employ psycho-forensic evaluators, forensic nurses, and mitigation specialists in your office. Tell us about these employees, how they are used, and your experience with them?
The PD's Office has about 16 Psycho-Forensic Evaluators (PFEs) who assist our lawyers in fashioning holistic defense plans for clients with mental health issues, substance abuse histories or other problems affecting them and their cases. Our PFEs work with clients to identify their needs and to assist our lawyers in crafting and presenting treatment alternatives for prosecutors and/or judges to consider in lieu of incarceration. Our PFEs typically have a master's degree in psychology or social work. Delaware prosecutors and judges frequently express their confidence in the work of our PFEs.
The PD's Office employs two full time forensic nurses, one of whom is a lawyer as well as an RN. Basically, the forensic nurses are in-house consultants who assist our lawyers in dealing with the various medical issues that arise in criminal cases. For example, our nurses assist lawyers in reviewing medically related discovery materials, in evaluating whether expert witnesses would assist the presentation of a client's defense and in helping lawyers prepare cross-examinations of prosecution experts.
The PD's Office mitigation specialists were originally hired to the PD's office to develop the defense case in the sentencing phases of capital murder cases. Our mitigation specialists investigated our capital clients' entire life stories, from before their births right through the time of the capital trials. Our mitigation specialists identified and interviewed our clients' families, gathered and reviewed the documents re their medical, school and employment histories. They procured witnesses and documents to prove our clients' life stories. In many cases, our mitigation specialists have had to spend substantial amounts of time to earn the trust of relatives to get them to disclose our clients' families' deep dark secrets.
Last year lawyers in the PD's Office persuaded Delaware's Supreme Court to overturn our death penalty statute. Subsequently, lawyers in the Office of Conflicts Counsel persuaded the Delaware Supreme Court to retroactively apply its ruling that Delaware' death penalty statute was unconstitutional. As a result, at this point in time, Delaware does not have capital punishment and has nobody on death row. Fortunately, the PD's Office has been able to keep its mitigation specialists. They are now working on the sentencing aspects of clients who are facing non-capital charges.
NAPD: How do you ensure that professional development occurs?
When we hire a lawyer, he/she immediately gets down to work with our Director of Training and Development, Dawn Williams. Typically, training is about one month before the lawyer represents clients in court. Once assigned to a practice area, Assistant PDs are supervised by a senior lawyer who is either a unit head or assistant unit head. Each lawyer has an annual, formal performance review. Progress and areas needing improvement are noted. If improvement is needed an improvement plan is put into place. Our goal is to put the lawyer in position to succeed.
Assistant Public Defenders and conflict counsel can meet all their mandatory CLE requirements by attending ODS sponsored seminars/trainings. All are free of charge to defense counsel and cover subject matters relevant to criminal defense.
NAPD: How do you communicate with the criminal justice system in your jurisdiction?
Not sure what the question means. We are an integral part of Delaware's criminal justice system. By our reckoning, we have the most influence in the system. The ODS represents about 85% of all defendants in Delaware's criminal justice system. Every client has the right to trial. If all (or even half) our clients exercised their rights to trial, we would shut down the whole system. With that possibility as leverage, we try to make sure the system treats us and our clients fairly.
By custom and practice, the indigent defense bar has a seat at the table on all discussions of policy matters affecting criminal justice. By statute, ODS is a member of Delaware's Criminal Justice Council, the state's administering agency for federal grants. In fact, I am the chair of the committee that awards federal grants to law enforcement, prosecution, defense and the courts. By longstanding practice, the Office of Defense Services gets the same amount of federal grant money as the Attorney General's Office. In short, as a full partner in Delaware's criminal justice system, the ODS gets its fair share of federal grant money. In light of ODS' standing in the criminal justice community, I just pick up the phone and call whoever I need to talk with.
NAPD: In 4 years, how do you want people to describe your organization?
Same thing I want people to say now. It's the best criminal defense law firm in Delaware. Their lawyers and staff have the confidence of their clients and the respect of the prosecutors and the Court.
NAPD: How do you maintain work/life balance?
Good question. Over the years, I've learned to find the off switch. It's an acquired skill. Defense lawyers have to be fully invested in their work while doing it, then be able to walk away from it as soon as the case is done. I've advised our lawyers to try to not let the clients' problems become their problems. All we can do is try to help by doing our best.
A few things have helped me along the way. One, I have a great wife and kids that have brought us a lot of joy. Two, I have enjoyed good physical and mental health. Three, I have hobbies that continue to interest me, primarily tennis and golf.
NAPD: What else do you want your fellow defenders to know about you and your organization?
In each of the last six years, in response to polling our employees, Delaware's statewide daily newspaper has recognized the PD's Office (now the Office of Defense Services) as one of the best places in Delaware to work. We're the only state agency to be recognized.