Mobile County’s indigent criminal population is at the mercy of a system one expert in Washington D.C calls the “perfect storm.” Strengthening that storm, this legal expert says, are violent squalls of excessive judicial power and torrential downpours of constitutional disregard.

“Alabama’s right-to-counsel system has the ‘perfect storm’ of characteristics that virtually guarantee ineffective assistance of counsel to the poor,” said National Legal Aid & Defender Association Research Director David Carroll. “Because Alabama pays for all indigent defense services (no county money at all) out of a fund that combines some state general fund monies and revenues collected on a $50 civil filing fee while ceding control of services to the local judiciary, judges can give out big payments to favored attorneys without being fiscally responsible for doing so.”

Symptoms of Carroll’s statement were evident in Lagniappe’s last report, published on Jan. 13, which focused specifically on the six highest earning indigent defense attorneys in Mobile County. They were Habib Yazdi, Lee Hale Jr., Gregory Hughes, Gregory Reese, John Thompson and Russell Bergstrom. All made over six figures with Yazdi, the top earner in the group, making $267,193, and the lowest earner with a sum still in the six-figure category was Russell Bergstrom at $104,307. That information was made available to Lagniappe via a report issued by the State of Alabama’s Finance Department. The report contained payments made to indigent defense attorneys in Mobile County for the fiscal year 2009.

Despite the seemingly high payments, however, Circuit Court Judge Joseph “Rusty” Johnston contends, at least in the instance of capital cases, fees to pay expert witnesses like any psychologists are included in the payment numbers reported by the Alabama Department of Finance.

“The numbers in those reports aren’t always reflecting what the attorneys actually make for themselves,” Johnston said.

But another possible validation of Carroll’s statement — that judges can give out big payments to favored attorneys without being fiscally responsible for doing so — is evidenced in a document provided to Lagniappe from the Alabama Office of Courts. The report chronicles the appointments made by every judge — including both Circuit and District Courts — in the 13th Judicial Circuit of Mobile County for the fiscal year 2009.

A legal fantasy draft?
According to the Alabama Office of Courts report, the second highest earner at $217,239, Hale Jr., was assigned a total of 241 cases throughout the course of FY09. Of those 241 cases, 71, or 29 percent of Hale’s caseload, was assigned to him via Presiding Circuit Court Judge Charles A. Graddick.

Hale Jr’s father, attorney Lee L. Hale, at one time worked with Graddick. Hale Jr. dismissed the notion that Graddick’s appointments were nepotism in July of 2007, in our Jan. 13 report and again when contacted for this story.

“I don’t know how judges choose,” Hale said. “I don’t have an answer to that.”

Lagniappe’s July of 2007 report showed 31 percent of Hale’s total cases came via Graddick. In 2007 Graddick assigned 23 percent of his indigent cases to Hale. FY2009’s report shows Graddick assigned slightly less at 18 percent of all of his indigent cases to Hale Jr.

When Lagniappe spoke to Hale, he attributed his substantial caseload to a vigorous work ethic that includes spending weekend hours with clients and being intensely passionate for the work that he does.

Graddick did not return phone calls for this report.

Alabama’s right-to-counsel system gives excessive leeway to judges on the bench due to a disconnect with anything resembling fiscal responsibility, Carroll says. He added that often it appears the system is catering exclusively to the political interests of judges wishing to extend their stay on the bench, attorneys who can very easily secure work for themselves through campaign contributions and the uninformed county officials who aren’t required to have any knowledge of what is going on in the courtroom.

“Most states with state funding have independent right-to-counsel commissions with authority to promulgate and enforce standards. There is no such accountability in the Alabama system. This means, attorneys who move dockets quickly and who kick back some of the money to a judge’s re-election campaigns can be financially rewarded. The ‘perfect storm.’ Judges are happy, defense providers are happy, counties are happy and district attorneys are happy. The only problem is that clients’ rights are being trampled on.”

Carroll could not say he knew if any attorneys in Mobile County had indeed contributed to a judge’s campaign, but after a cursory search, Lagniappe was able to confirm that Lee L. Hale, Lee Hale Jr., Gregory Hughes and Habib Yazdi had all contributed money to the campaign of Presiding Circuit Court Judge Charles Graddick in 2004. According to Alabama Secretary of State records, some of the contributions amounted to nothing more than $350, but some came in two installations and totaled as much as $1,850. As for Hale Jr’s contributions to Graddick’s Campaign in 2004, he remains relatively unapologetic.

“I make lots of contributions to lots of people,” he said. “If someone is doing a good job I want to keep them in office. It is what it is.”

While Hale jokingly conceded to Yazdi’s monetary victory and nearly doubled caseload of 516 total appointments in 2009, Yazdi’s modus operandi seems to be different and includes a large amount of appointments from nearly every judge in the circuit.

According to Yazdi’s appointment record from the Office of Courts, District Court Judge Bob Sherling tapped the defenders’ shoulder 93 times, Graddick 49, District Court Judge Charles McNight 22, District Court Judge George Hardesty 41, Circuit Court Judge James Wood 14, Circuit Court Judge John Lockett 32, Circuit Court Judge Johnston 28, Circuit Court Judge Michael Youngpeter 43, District Court Judge Michel McMacken 7, Circuit Court Judge Robert Smith 50, and Circuit Court Judge Roderick Stout 68 and Circuit Court Judge Sarah Stewart 69.

Yazdi’s share of the assigned caseload among the top six earning indigent defense lawyers in Mobile County amounts to 34 percent of that same group’s 1510 total assigned cases, which is .07 percent of the total 7,460 indigent defense cases assigned to a pool of roughly 175 other lawyers.

Carroll says the amount of cases for which Yazdi received payment in 2009, which is slightly higher than the number he was appointed for, needs to be broken down mathematically and legally to truly comprehend. “My guess is that the majority of them are felonies. If so, the attorney in question could very well be handling three times as many cases as he should,” Carroll said. “Potentially worse, though, there are no clear standards on how many death penalty cases an attorney should handle in a single year, most attorneys and public defender offices allow a single attorney to handle no more than 3-4 death cases a year and nothing else. So if there are any death cases among those 523 cases (and I imagine there are if he brought in over $260K), then his caseload edges up to 4-5 times what national standards say he should be handling.”

While Judge Johnston labeled Habib Yazdi a “C+ lawyer,” he says he’s always available — even at 2:30 p.m. on a Friday when Johnston says most of Yazdi’s colleagues are at a watering hole — not afraid to go to trial, but also knows when to plead.

“Sometimes you’re dealing with guys who have three felonies and pictures of themselves committing the crime going against them. They’re guilty as hell. Habib knows when to tell them a plea is their best option,” Johnston added. “I think the statistic is about 98 percent or so of felonies end in a plea bargain, so that’s the way the system is. There are just a lot of pleas. But I’ve tried plenty of cases with him.”

Attention on the national level
The inadequate handling of indigent defense assignments is not just a Southern or “Alabama problem,” Carroll says, contrary to misconceptions about a lax justice system in the South being flawed beyond repair.

“Right now there’s a lot going on nationally on the indigent defense front. A lot of organizations like the ACLU and NAACP Legal Defense Fund and the National Association of Criminal Defense Lawyers have basically said we’re nearing 50 years since the Gideon decision (guaranteeing assistance of council) and our country still hasn’t gotten it right,” Carroll said. “They’ve been launching litigation class action lawsuits. The ACLU is in Michigan right now — they have successful cases in Connecticut and in Montana. You have a bunch of groups that are doing that.”

Carroll says organizations are also currently working toward reform in Louisiana, Mississippi, Washington State and New York State, and while his organization, the National Legal Aid & Defender Association, works mostly with policy makers to help them understand the significance of these outside efforts, the whole movement is resulting in raised eyebrows at the federal level.

“The U.S. House Judiciary Committee held three national hearings this year on the indigent defense crisis. Our U.S. Attorney General Eric Holder has called this a ‘national crisis,’” Carroll said. “But the reason I call Alabama the ‘perfect storm’ is because in other systems there’s usually someone that cries out. If you have a public defender system that is under-funded, attorneys are carrying way too many cases and not able to handle it. So they will refuse to handle more cases. That triggers some sort of action for one of these groups to come down there. In Alabama, because the defense attorneys are making so much money, and the judges are happy with it and county managers don’t have any control, so they’re happy with it — there’s no one to speak of on behalf of the client.”

Carroll isn’t anti-indigent defense, however, and he’s quick to point that out.

“I’m not against attorneys making money for defending the indigent. People who represent the indigent should be adequately paid. If they’re doing it right then they should be compensated for it,” he said.

Jonhston says he’s not convinced there’s anything wrong with Alabama’s and more specifically, Mobile County’s, indigent defense system.

“You couldn’t have a public defenders office large enough to handle all the cases in Mobile County,” Jonhston said. “If you want to handle the situation here expeditiously, you’d need to have enough lawyers to handle all the cases on your worst day. That would amount to a lot of wasted time. So you try to get private people to do this stuff as much as they can. A public defender system would be slower and more expensive, I know that much.”

ABA’s 10 principles
In 2002 the American Bar Association published a guideline on how an indigent defense system should be properly run called the “Ten Principles of a Public Defense Delivery System.” Carroll says Alabama struggles to meet all but one principle in the ABA’s booklet.

Among guidelines, like the ABA’s first, which states, “The public defense function, including the selection, funding and payment of defense counsel, is independent,” and number five, which says “defense counsel’s workload is controlled to permit the rendering of quality representation,” Carroll says only the seventh guideline suggested is met in Alabama. It says “the same attorney continuously represents the client until completion of the case.”

Carroll says the seventh guideline is usually met in all assigned counsel systems.

Johnston was a bit more philosophical in his summation of Alabama’s indigent defense program.

“I think it was Winston Churchill that said, ‘It has been said that democracy is the worst form of government except all the others that have been tried,’” Johnston said. “It’s a hell of a system.”