Lawmakers weigh role, size of Public Defender’s board 

Posted: 8:03 pm Tue, October 27, 2009
By Brendan Kearney
Daily Record Legal Affairs Writer

The main characters from last summer’s dramatic change in leadership at the Office of the Public Defender appeared before lawmakers in Annapolis Tuesday to testify about the agency’s mission and challenges, the controversial role of its board of trustees and potential legislative fixes in the upcoming session.

While Senate Judiciary Proceedings Committee Chairman Brian E. Frosh admonished all in attendance to avoid “the elephant in the room” — Nancy S. Forster’s firing — so as to focus on policy issues, the emotional residue from the event that triggered the hearing was also very much in evidence.

Forster spoke passionately about her 25-year career at the agency, choking up when she spoke about the Juvenile Protection Division she formed and which the board sought to dismantle. She fanned herself agitatedly when T. Wray McCurdy, the private attorney who chairs the OPD board, told the senators that public defenders could not afford to provide “ancillary social services” such as “career counseling.”

For his part, McCurdy seemed frustrated by many of the senators’ questions, repeatedly pausing with exasperation before emphasizing that he is a volunteer who just wants the best for line public defenders in these lean economic times.

“We have a really growing caseload,” McCurdy said. “It’s all hands on deck.”

Frosh asked about a series of letters McCurdy wrote in the late 1990s in which he criticized the OPD for horning in on the private bar’s clientele.

“I find those views troubling for someone who would serve on the board of the public defender,” Frosh said.

Sen. Norman R. Stone Jr., whose son, now a district court judge, once practiced with McCurdy, called McCurdy “an excellent trial lawyer” who did not need to worry about competition from public defenders.

Policy-setting role

Forster was ousted on Aug. 21 by a 2-1 vote, after she refused to disband certain units and make other cost-cutting changes itemized in a July 2 letter signed by McCurdy and board member Margaret Mead.

On Tuesday, when Frosh asked about the board’s authority to dictate policy to the public defender, McCurdy admitted there is some “stress and tension” between the board’s power to hire and fire and its mandate to advise.

Frosh responded more simply: “I don’t think you have that authority,” he said.

Acting Public Defender Elizabeth L. Julian has kept a low profile since agreeing to serve in an interim capacity on the condition that she not implement any of the board’s eight desired changes. But she seemed to favor Forster’s positions on Tuesday.

“I did not agree to carry [the changes] forward because I do not agree with all of them or some of them,” she said.

She called the office’s social workers “vital” — McCurdy sought to eliminate them — and disagreed with McCurdy’s stance on what he called the “life-assist” services provided out of the Northwest Community Defenders office in Park Heights.

Theresa L. Moore, the only member of the three-lawyer board who did not want Forster gone, has also remained mum since the firing. She said little on Tuesday but praised the juvenile division’s work in Prince George’s County, where she practices.

Asked why she didn’t sign on to the July 2 letter, Moore said, “I didn’t have a problem with the way the agency was being run.”

‘Ganging up’

Three national experts also testified: David Carroll, director of research and evaluations at the National Legal Aid and Defender Association; Patricia Puritz, executive director of the National Juvenile Defender Center; and Melanca Clark, counsel at the Brennan Center for Justice at New York University School of Law. Like Forster, all three favor a holistic approach.

The most likely consequence of the hearing seemed to be an increase in the number of members of the board of trustees. Forster recommended it, suggesting a panel of 13. Carroll noted that Maryland is the only state that has a three-member board; of the states that have boards, most have at least nine members.

Sen. Jamin B. ‘Jamie’ Raskin, D-Montgomery, also seemed in favor of a larger board.

“In my house, we don’t allow sleepovers of three kids because two usually end up ganging up on the third,” he said to laughter.