Emerging Practices in Civil Legal Assistance

and Criminal Indigent Defense

NATIONAL AMERICAN INDIAN COURT JUDGES ASSOCIATION

January 13, 2015

2:00 – 3:30 p.m. (MST)

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This webinar series is supported by Grant No. 2011-AL-BX-K002 awarded by the U.S. Department of Justice, Bureau of Justice Assistance. The Bureau of Justice Assistance is a component of the Office of Justice Programs, which also includes the Bureau of Justice Statistics, the National Institute of Justice, the Office of Juvenile Justice and Delinquency Prevention, the Office for Victims of Crime, and the Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking. Under this award, points of view or opinions in webinars, documents, or publications are those of the author and do not necessarily represent the official position or policies of the U.S. Department of Justice.

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Moderators

Nikki Borchardt Campbell, Program Administrator

National American Indian Court Judges Association

Francine Jaramillo, Staff Attorney

American Indian Law Center, Inc.

Presenters

Alex Sierck, Project Director

Center for Holistic Defense, Bronx Defenders

Ann Sherwood, Attorney

Defenders Office of the Confederated Salish and Kootenai Tribes

The National American Indian

Court Judges Association

• TTA Provider under the Tribal Civil and Criminal Legal

Assistance Program

• Planning and Coordination Meeting in 2012

• Emerging Practices webinar series

The Need for Indigent Defense in

Tribal Communities Indian Civil Rights Act of 1968 (ICRA)

Tribal governments cannot enact or enforce laws that violate certain individual rights.

Defendants rights, include: ○ freedom from punishment greater than imprisonment for one year

and a fine of $5,000 or both; and

○ the right to be assisted by a lawyer in all criminal cases, at one’s own expense.

Tribal Law & Order Act of 2010 (TLOA) Tribal Courts may exercise enhanced sentencing authority.

Protections for accused where Defendant subject to 1 year or more imprisonment, include: ○ licensed counsel for indigent defendants;

○ licensed/law trained judges;

○ tribal criminal laws, rules of evidence, and rules of criminal procedure must be published; and

○ proceeding must be recorded.

Violence Against Women Reauthorization Act of 2013 –

Title IX: Safety for Indian Women

Authorizes tribes to criminally prosecute non-Indians for the crimes

of domestic violence, dating violence, and the violation of protection

orders.

Tribes must provide defendants certain enumerated due process

protections, including:

○ most of the protections required in TLOA;

○ a fair cross-section of the community in jury pool and not

systematically exclude non-Indians; and

○ inform defendants ordered detained by a tribal court of their right

to file federal habeas corpus petitions.

Growing demands and limited

resources

Indigent providers are underfunded and

understaffed.

Increased caseloads.

Insufficient resources.

Defendants lack proper guidance about

their rights, charges, potential sentences

and collateral consequences.

Criminal Defense • Civil Action • Family Defense

Policy & Community Development • Social Work

A Broader Understanding

Of What it Means to be a Lawyer

THE 4 PILLARS OF HOLISTIC DEFENSE

Seamless access to services that meet clients’ legal and social needs

Dynamic, interdisciplinary communication

Advocates with interdisciplinary skill set

Robust understanding of and connection to, the community served

TEAM BASED MODEL

Criminal Defense Practice

Family Defense Practice

Social Work Civil Action

Practice

Team

TEAM BASED REFERRAL SYSTEM

Criminal Defense Attorney

Investigation

Civil Action Practice

Family Defense Practice

Social Work

Grant awarded to The Bronx Defenders by

The Department of Justice – Bureau of Justice Affairs

Purpose: To provide Technical Assistance to Public Defender Offices around the country who are striving to be more holistic in their representation

TECHNICAL ASSISTANCE Site Visits

To The Bronx Defenders

To the recipient’s office

Creation of a 12-month plan

Focus on one aspect of Holistic Defense to develop

Creation of a Needs Assessment Instrument

Collection of Data

Ongoing Advice & Assistance

860 Courtlandt Avenue • Bronx, New York 10451 • (718) 838-7878

www.bronxdefenders.org

Criminal Defense • Civil Action • Family Defense

Policy & Community Development • Social Work

A N N S H E R W O O D

M A N A G I N G A T T O R N E Y

D E S I R E E F O X

C A S E M A N A G E R , C L I N I C A L P S Y C H O L O G Y T R A I N E E

T R I B A L D E F E N D E R S O F F I C E

C O N F E D E R A T E D S A L I S H A N D K O O T E N A I T R I B E S

Use of Existing Resources to Provide Holistic Defense: CSKT

Defenders

Flathead Reservation

1.3 million acres in northwest Montana

primarily in Lake County, 23% Native American

Home to the Salish, Kootenai and Pend d’Oreilles

7,779 tribal members, 5,180 live on the reservation

CSKT Tribal Complex

Addressing Recidivism with Holistic Defense

2009: Received BJA funding for a Mental Health Collaboration Program

2011: Received technical assistance from the Center for Holistic Defense

Developed a team approach to provide seamless access to justice with criminal and civil assistance

Redefined positions allowing each staff person to contribute to client services by utilizing their particular knowledge and strengths

Legal secretary greets our clients, offers food, phone and a place to be, makes reminder calls and is the office stylist

Office administrator created and coordinates a bad checks diversion program

Civil attorney and advocate administer pro se clinic, address collateral consequences, provide intake for walk-ins

Criminal advocate administers the driver’s license diversion and cultural mentoring programs

Criminal defense, juvenile defense and appeals

Psychology and social work

Creating a Program to Fit the Community

1. We used existing resources to meet clients’ legal and social needs

2. We used staff meetings to start interdisciplinary communication and collaboration

3. Collaborative efforts among staff promoted advocates with interdisciplinary skill sets

4. We formed a community clinic to understand and connect to the community and we adapt to change

Intake

Walk-in clinic

Pro se assistance

Standardized forms

Computers to draft pleadings

Assistance with process

Information referral

Access to an advocate or attorney to answer questions

Pro se clinic

Assistance with Collateral Consequences

Eviction due to criminal charges

Licensing issues

Employment

Reentry

Outreach to inmates

Child protection issues

Eligibility for financial assistance

Registration issues

Cultural Mentoring

Volunteer tribal elders mediate and counsel

Dispute resolution

Promote connection to the tribal community

Provide access to the culture committees

Divert criminal cases

Community Outreach

Tribal Defenders at the Standing Arrow Pow Wow

Dancers at Standing Arrow

Collaborations

Tribal behavioral health

Tribal police

State public defenders

University of Montana

Social work

Clinical psychology

Law school/Indian Law Clinic

New collaborations: plaintiffs attorneys, case management/mental health services

Tribal Defenders sue the Ronan Police

CSKT Public Defenders join Ronan lawsuit

Concerned with community safety

PABLO — A group of attorneys, including the CSKT Public Defenders Office, recently filed a civil rights lawsuit on behalf of Lake County resident and Tribal member, Anthony Chaney, for a harmful law enforcement situation created by the City of Ronan Police Department and its police chief. The lawsuit also applies to others who were subject to search and seizure by Trevor Wadsworth or other ineligible peace officers acting as City of Ronan Police Officers. An estimated 100 plus people were likely impacted by these untrained officers.

Educating the community

Enrollment, living wills big topics at St. Ignatius District Meeting

By Adriana Fehrs

ST. IGNATIUS — Tribal Council representative Patty Stevens held a monthly tribal district meeting on May 21, Wednesday night. Wills, living wills, power of attorney, and enrollment were discussed.

Stevens says, “We’ve had a couple of people asking to have someone come in a talk about wills. I think it can be confusing, so I brought in some individuals from the Tribal Defenders to answer questions.”

Justin Kalmbach, CSKT Tribal Defender’s Office civil attorney, clarified a few important aspects of wills and living wills. “Nominating a single person to carry out your final wishes is the first step in making a will,” he informed the group

Tribal Defenders: rate of Native American incarceration 'shocking'

By Adriana Fehrs

PABLO — CSKT Tribal Defenders hosted a movie luncheon on Tuesday July 1. The movie presentation focused on incarceration in the U.S., and Tribal Defenders Ann Sherwood and Justin Kalmbach invited special guest Jim Taylor, Montana American Civil Liberties Union (ACLU) Legal Director, to give some shocking statistics of incarcerated Native Americans.

Diversions

Driver’s licenses

Bad checks

Cultural mentoring

Mediation

Mental health intervention

May 18, 2014 Painting Project

Case Management Services

Case Management

Comprehensive needs assessment

Assistance to find housing and problem solving

Assistance with transportation

Access to social and financial services

Access to employment

Access to educational interests

Supportive services/resource identification

Assistance with court-ordered recommendation completion

Collaboration

Mental Health Services

Variety of Referral Sources

Assessment Chemical Dependency and/or Mental Health

Accessibility

Crisis assessment/intervention

Counseling Services

Peer Education/Psychoeducation Present various psychological topics in office staff meetings

Consultation with defenders and advocates

Collaboration

Outcomes

2009 – 2012 Of 67 clients served through the Defenders’ mental health collaboration program:

80.5% had 3 or fewer subsequent offenses

48% had zero recidivism (no new offenses)

2011 – 2014 Of 54 clients served through the Defenders’ cultural mentoring program 35 have not reoffended.

2014 Of 186 clients charged with Driving While Suspended or Revoked 32 obtained valid licenses through the Defenders’ license restoration assistance

Lessons learned

Services first

Open door policy

Collaboration

Recidivism reduction is not the only measure of success

The answers to an overloaded criminal justice system are more complicated than punishment can cure

Clients have basic needs that, if met, will make them more successful

Listen to the experts: psychologists and social workers

What CSKT Defenders still need to do

Data collection

More resources for reentry

Expansion of diversions, especially for juveniles

Increase education to pro se litigants

More community outreach that goes directly to our clients

Increase access to medical, mental health and chemical dependency resources for our clients

Decrease the number of mentally ill who still cycle through the system for status related offenses

Opportunities for Tribal governments

Public Defense services

As tribes look to expand jurisdiction consider public defender services rather than contracted counsel

With limited resources tribes can still offer criminal representation and civil assistance

Clients who understand the proceedings and believe they were treated fairly will more likely be successful

Consider that diversion programs or special services to the accused may best be offered by your public defenders

What public defenders can do with limited resources

Become a resource for your community

Exploit the knowledge and strengths of your staff

Utilize the wealth of resources among your people

Be part of the solution in the criminal justice system

Be willing to change and evolve to suit your clients’ needs

Apply for grants

Apply for assistance from the Center for Holistic Defense

Contact

Ann Sherwood

Desiree Pierre Fox

Tribal Defenders

Confederated Salish and Kootenai Tribes

P.O. 278

Pablo, MT 59855

(406) 675-2700 ext. 1125

annsherwood@hotmail.com

Thank You!

American Indian

Law Center Inc.

P.O. Box 4456

Albuquerque, NM 87196

Tel. (505) 277-5462

Fax (505) 277-1035

www.ail-inc.org

National American Indian

Court Judges Association

3300 Arapahoe Ave, Suite 206

Boulder, CO 80303

Tel. (303) 449-4112

Fax (303) 449-4038

www.naicja.org

Panelist Bios

Alex Sierck graduated cum laude from the University of Michigan Law School in 1997, serving as Articles Editor for The Michigan Journal of Race and Law and spending his summers at the Federal Defender Office for the Eastern District of New York and at the NAACP Legal Defense Fund. Upon graduating from law school, he worked as a staff attorney at the Criminal Appeals Bureau of The Legal Aid Society in New York. He then joined New York’s Capital Defender Office where he was a member of the legal team that successfully represented the first person convicted and sentenced to death under New York’s then newly-reinstated death penalty statute in his appeal before The New York Court of Appeals. In 2000, Alex joined The Legal Aid Society’s Criminal Defense Division in Manhattan and spent the next six years representing poor people and conducting hearings and trials in all manner of criminal cases. During that time he was also a member of Legal Aid’s Juvenile Offender Team, specializing in the representation of youths charged criminally as adults. Alex later lived and worked in San Francisco, representing death-sentenced individuals in federal habeas corpus proceedings and capitally-charged individuals in federal court. While in California, he also taught as an adjunct professor at a local law school and pursued graduate studies at UC Berkeley’s Graduate Theological Union. Alex graduated cum laude from Carleton College with a degree in philosophy and spent several years before law school working as a community worker at The Neighborhood Defender Service of Harlem.

Panelist Bios

Ann Sherwood has been an attorney with the Defenders Office of the

Confederated Salish and Kootenai Tribes for eighteen years. She has been

the managing attorney for the past nine years and maintains a criminal

caseload. Ms. Sherwood has been instrumental in utilizing cultural

resolutions to criminal charges. During her tenure, the office has

implemented an innovative in-house service for clients with co-occurring

mental health and chemical dependency and adopted a holistic defense

practice with assistance from the Center for Holistic Defense sponsored by

the Bronx Public Defenders Office in New York. Ms. Sherwood currently

serves on the Public Defender Commission for the State of Montana.