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CARA LANE CAPE: My name is Cara Lane Cape and today I'm interviewing Jack Farley, a past Public Advocate for the Department of Public Advocacy. We are at the Marriot Hotel in Louisville, Kentucky. It is June 5, 2012, and this interview with Mr. Farley is in regards to the history of the Department of Public Advocacy, as well as, his involvement and experiences within the agency.

JACK FARLEY: I was appointed to be the Public Advocate in Kentucky in early 1975 and I served until October of 1983. Governor Julian Carroll appointed me. Governor Wendell Ford had gone to the U.S. Senate as a Senator for Kentucky and Governor Carroll had been the Lieutenant Governor and he succeeded to the office, and then he appointed me in the spring. His assistant at that time that I dealt with mostly, was Terry McBrayer, from Ashland, Kentucky. We also talked a lot, I think in those early days, to Jerry Abramson who at that time was, I 1:00think if I recall correctly, either then or later, was Governor's legal counsel, at that time.

The interesting thing about the appointment was, I was in private practice, struggling along from day to day, and I had been, of late, in the office of Dan Jack Combs, a lawyer there in Pikeville, my home, and in Pike County. Terry McBrayer said it was imperative that I report to Frankfort by March the first; that means my, whatever feeble little law practice I had, had to be ended by March the first and letters sent out because Tony Wilhoit the first Public Defender had left and was doing things on his own situation. So I closed up shop and we moved to Frankfort by March the first of 1975.

Also great credit is due to Ernie Lewis who with great foresight in the Fall of 2:001983 wrote an article in the newsletter, The Advocate for the Department, and summarized very vividly a lot of the aspects that I've referred to you about, things that had been accomplished and you probably have to look at that article and depth to know some of the details that I probably will leave out.

At the time I felt called to do it, I felt like the Lord was leading me in that direction. I've always wished that I had told the Courier-Journal reporter when he called me on the phone, why do you want to do this, you've been in the Chamber of Commerce as Director in Pike County, are you really qualified to this. I learned real quickly not to rise to the bait of the reporter's question. I should have said, well I felt called by the Lord to do that, and that's truly would have made headlines. But I told him, I said, I said, well I wanted to do 3:00that from law school on I've been interested in service.

I went to law school in Washington D.C. at the Washington College of Law of the American University. At the time it still remembered its Methodist Church leanings and founding issues and so on, and so there was a great deal of emphasis on service and I felt like that I could do some of this. Plus I had been a local Public Defender for quite some time and I had seen and learned firsthand how much lack of training that I had.

I had been on the Federal Public Defender list, had been appointed in Federal Court, and my first big appointment in Circuit Court in Pike County was by Judge Venters. E.N. Venters appointed me to defend a young man on a murder for hire 4:00case. Three young men accused of killing the wife of a man who allegedly hired them to kill her because he was tired of her and that was my case. I realized very quickly when I came up against John Paul Runyon, who was long lost, long way back connected cousin of mine, the Runyons are, we were connected sometime back, that I was ill prepared to do that case and that case, as some of you all recall haunted us for a long time there after because of issue and concerns about it.

The vision for DPA, or at the Public Advocacy Office as it later became, I saw pretty soon and early on that we really needed to implement Argersinger v. Hamlin, which was the right to counsel decided by the Supreme Court.We really 5:00needed effective assistance of counsel and that the appointed systems of saying here, "Young Jones" come up here(lawyer).The court summoning a lawyer to come up to the front of the bar and say you're going to represent this person. Probably within the realm of the tradition of the law and of being a lawyer, but did not necessarily mean that person was going to get effective assistance of counsel, because the lawyer that was appointed may or may not of had any experience.Just like I did not have any experience, certainly not sufficient experience to represent a person in a serious capital felony case. So we needed a better system. I felt like then the appointed counsel. We had a list of, if we didn't 6:00have at that time, later we'd have a list of volunteers of lawyers. At least we did improve to the point that lawyers, who wanted to do this for work, would put their name on a list. But in those other days before Bradshaw v. Ball, you know they didn't get paid. So fortunately for us, Kentucky was one of the leaders in, I think it was in '72, wasn't it when Bradshaw v. Ball was passed. '71, '71 ok, and that said it was a deprivation of property without due process of law to appoint a lawyer and require the lawyer to serve.Even though the profession regarded it as a responsibility for lawyers, I could see that we were not getting effective assistance.

I don't know that I had a vision when I first started in '75, but pretty quickly I began to see and based on that experience, and then the reports, they came in throughout the state, about the appointed system of representation that was not 7:00the best. Also, we were members early on, if I recall, of the National Legal Aid and Defender Association and they had a lot of folks,there were publications and other kinds of things that were teaching us that probably full-time public defenders were what was needed in order to get a more systematic approach, a more professional approach, a better trained approach to providing because this was a fairly esoteric area of practice. I mean it was not a garden variety thing to represent a person accused of a felony. Whether they may go and spend a lifetime or even be executed. Not that you could not just rise up and one day do that, you had to have preparation and training. So, we began to search for ways 8:00for greater funding and you weren't even probably alive at that time. We had a thing the Feds had passed called the LEAA, which stands for Law Enforcement Assistance Administration, and after the turmoil of 1968, the political turmoil, the assassination of Martin Luther King, the assassination of Bobby Kennedy and the burning of blocks of Washington, D.C. They burned more than 500 city blocks in Washington D.C., where I lived in '67. One of the reasons I came home to Eastern Kentucky. So, the point of all of that was the LEAA was later created and their main penchant seemed to me to be funding things like water cannons to take care of all this turmoil in the streets that we were having and to control 9:00all these people that were rioting and concerned. They had roving bands of federali that would go up and down with water cannons, but they had a provision somewhere in that legislation, somebody figured it out, probably Ed Monahan or somebody a whole lot smarter than me, or Ernie Lewis that said there was some provision for funding for public defenders. So, we made application and then we repeated an application. I think we ended up getting over a million dollars from the Feds for the creation of full-time offices, and that came later, but gradually that began to be developed. We began to build and obviously, hopefully it wasn't to parochial of me, since I was from Eastern Kentucky and I knew first-hand the greatest need, that that's where I started with regard to full-time offices, to try to have full-time offices funding. Then the big 10:00transition issue then was when that federal funding dried up, we had to go to the legislature and try to get funding and for a while as Ernie remarks in the article and I had forgotten this, that the General Assembly did fund some of those. But during the time that I was there, we were never able to complete the whole system. I think Ernie was it in your time that you finally got funding for most of the full-time?

ERNIE LEWIS: 2005 it was finished.

FARLEY: Think of that, from '83 to 2005 before we were able to find full-time defenders all over Kentucky. In your earliest day we had to depend on the local fiscal court, which in those days, I don't whether it's still that way in Kentucky or not, but it may well be. The local legislative body of each county was the fiscal court and they were magistrates and in my home county they were 11:00justices of the peace. They had a judicial function and they also had a legislative function at the local or county level. They gathered together and they would setup funding, provide funding. They had a taxing authority. They would provide funding at the local level and the way the legislation, early legislation was written was we had to go to those people and ask them to provide funding for these local systems as we gradually began. We were trying to carry-out Bradshaw v. Ball and have some money to pay these assigned counsels in the early days. So, we were effectively going to the local fiscal court.The county judge was the chief executive and the leader of the fiscal court, and we would make a presentation to them and say we need you to provide funding to help pay for public defenders. The common complaint that I got, and we all got, was a 12:00magistrate would say, you mean to tell me Farley, you want me to provide, want us to provide taxpayer money to pay of representation of this person, who's stolen my chickens? I would have to say, yes sir, that's what I'm asking you for, and I did. And we went all over the 120 counties. I don't know whether I got to all 120 counties, but I went to a lot of them asking them to put up money to fund this system at the local level, because funding from the legislature was totally inadequate. What was it a million or two million dollars initially, or somewhat really, really low sum.

The biggest challenge besides that kind of opposition was apathy. People just did not see the need, did not understand why it was necessary.As we have learned 13:00so vividly, recreated and emphasized for us today, at this wonderful conference we've been enjoying today, June the fifth of 2012, we now know how important the right to counsel is. Then it was just as important but people just didn't realize it. So the biggest issue you had to run into to was trying to educate people, not only fiscal court members but the public as well about how important it was to provide.

The other thing from the legislative stand-point, I think people were philosophically opposed. I ran into to some of this and the legislature, opposed to funding but sides of the system. They were well understood, they had to fund the court system, had to have that.They thoroughly understood the idea they had to have the prosecutors, but our idea was, well if you have the prosecutors, 14:00then you have to have the defense counsel in order to have a fair trial. Selling that and teaching that was difficult in those early days. Now, Tony Wilhoit I'm grateful to because he had started and made big inroads with a lot of folks, but he had started the work of trying to educate and create a fervor, that's what we were looking for, an enthusiasm, which we did not have. We were trying to create that in the minds of people who had control of the "purse strings," and wanting to get them to get involved in providing the mechanisms and the funding for the system. So in terms of challenges I think that was one of the big ones, was to try to teach people why it was needed.

What were some of the supports or the enemies of the Public Defender System? I never did see anybody as an enemy. I saw people that, of course I was concerned 15:00were either misinformed or they didn't understand what the system was about and why it was a necessary, why it was important. Perhaps there were some people that were dead-set against it, they certainly didn't acknowledge that to me. It's like one of those sayings, you don't wake up in the morning saying well I'm going to go out and sin today.You don't do that. You do it inadvertently, or by negligence, or by not paying attention to what you're doing. People just didn't see the importance of it. Attitudes were a problem. I had the interesting circumstance illustrated by a gentleman that I had practiced before in Pike County, who was a Circuit Judge, who later went on the Court of Appeals of Kentucky before we had a Supreme Court. He said to me directly, Farley,by now I 16:00was the Public Defender and we were doing a lot of appeals.We had a very active appellate section and that was our main function to start with, was doing appeals.Local appointed counsel would handle cases at the local level and we would handle appeals. He said, Farley, is there some way that you can let us know which of these appeals you're serious about? I said, Judge, as far as I'm concerned, we're serious about every one of them that we file.He said, well, there's just way too many of them, we've got to have some way to weed them out, we want you to, I want you to let us know which ones you are really serious about. I said, well, I don't think that's fair and plus I can't think of any mechanism for doing that. The other thing of it is, he was relating to the fact, 17:00why do you want to provide appeals for these, implying, these heinous criminals, you know that come before us. I said, well, if it was your son or daughter that was accused of a crime, you could probably go pay somebody to represent them. What kind of appeal would you want from that lawyer that you hired? And he acknowledged that he brought a really good, thorough, vigorous defense and a vigorous advocacy on the part of his son or daughter who was accused of a crime. And I said, well, I think the Constitution and the case law requires the same for people who cannot afford to pay for a lawyer, that is the ruling of Argersinger v. Hamlin, and that's what, I think is included in the Fourth Amendment. He never conceded the point, but that was the kind of thing you dealt 18:00with. If you had a judge at the Court of Appeals saying, which one's are you serious about, you understand you had a big, tall mountain to climb.

Changes and organizational changes, as I was talking to Ernie Lewis yesterday, and he said something about organizational charts; it seemed like to these folks they were working with us, Ed and Ernie, who were young guys and starting out with us in the early days, we were doing a new organization chart every week. I was one of these nuts, I guess I'd been in the federal apparatus too long, that I had to have it on paper.If we're going to have a hierarchy, I wanted to see what it was. I wanted to see. So that was my thrust, and Ernie mentions this in his article that we're talking about bringing some organizational chart for the whole system. I think we finally counted up and we had over three hundred lawyers, appointed lawyers, filing invoices for pay throughout the state at one 19:00time. Over three hundred lawyers involved. I wanted to know who they were. I wanted to know where they were. I wanted them to come to training. We begin to have these annual trainings. I think Tony Wilhoit had already started annual trainings. We were doing it, we continued that, tried to magnify it, and the best people from around the country to do the training. We wanted to establish the offices. One of the organizational issues that came up early on, this was well before the Public Advocacy Commission, and pointed up the need for the establishment of an oversight body, like the Commission is today, was one of the things I personally chafed about and as we set around the council table we chafed about, was the part that we were the administratively attached to the Department of Justice Cabinet. As long as my friend Jack Smith was Secretary of 20:00Justice, it seemed to work out pretty good. But when Neil John Welch became Secretary of the Justice Cabinet, it didn't go as well. Not that he ever necessarily did anything that I could remember specifically, but he was a gentleman who had come to us from the New York. I think it was the New York Office of the FBI and he had been instrumental in one of those big, big, huge sting operations the FBI pulled off so successfully, and I'm glad. I mean he was a really effective Law Enforcement person, but his idea of Public Defender was not very well developed. One day I had a conversation with Neil John and he said I don't understand Farley why we need the Fourth Amendment in this country; they do without that in Canada. They don't have that in Canada, they get along fine. 21:00I was so incredulous. I really had no really adequate response.The fact that somebody would say something about not needing the Fourth Amendment, which I felt was like a pillar of our whole constitutional system, you understand, that to me pointed-up the necessity for some kind of body that stood between us and whatever Cabinet we're a part of. As you look back at our history, the Public Advocacy Office has been, at that time Justice, and then Public Protection, and then I don't know where you are now.

CAPE: Justice.

FARLEY: Back to Justice again. We had the State Police and Corrections.We were attached for administrative purposes, whatever that means. We were always 22:00questioning, what does attached for administrative purposes means, so and we were always fussing about it. I remember the first meeting of the Justice Cabinet that I attended, and I was going to pull that up today, and I didn't get a chance to. I set at the end of the table and the guy, I have forgotten that man's name, who was Commissioner of Corrections, said, why you sitting way down there for Farley? I said, well, I thought I might be asked to come up higher. Nobody at the table understood the reference and I knew I was among the Philistines for sure (laughs loudly), because nobody understood what I was talking about, I was hoping I would be called into the body as a full council member. Julian Carroll, at the time or not long after he appointed me, referred 23:00to me as the loyal opposition; but at least he understood the principles of having a public defender and an effective system. I guess that's the over-riding principal, we were trying to give credence to, was building a system, a systematic approach to a public defender providing defense of indigent persons accused of crime, which we didn't seem to have. Tony struggled with that and we all struggled with it in the early days, trying to make a system out of something that was really amorphous, very loose, and very casual. We couldn't afford to be casual with peoples' lives and that was the thing that we had to try to instill in the system.

So we needed an oversight body and later fortunately, maybe it was established in the last year or so of my term, but soon thereafter we had this Commission. 24:00The Public Advocacy Commission that could be both a barrier and an advocacy group for us to try to intercede for us in the legislature and with the executives, chief executive branch and all those people.

We learned from NLADA and others, an as we observed systems across the country, or the lack thereof, more often the total lack thereof. Even today in 2012, in so many, many states, I'm sure, who pride themselves on being modern and up-to-date, and still don't have structured systems. We felt like we need to do that in Kentucky and of course we had this Bradshaw v. Ball, which was instrumental. With Argersinger at the Federal level and Bradshaw v. Ball here, we were the leaders, we were on the cutting edge of trying to establish a system and full-time offices just seemed the better way to go. We needed to focus on 25:00training. We needed to focus on professionalism. We need to focus on people who were doing what they did because they loved to do it. I always thought of it as a calling, or "voca" in the Latin sense, vocation, something you're called upon to do. I mean look at, Ed Monahan, how many total years since '83 did you first come on board? I know you've done some other things in between.


FARLEY: '75, that's right, '75. Imagine 37 years. I was just thinking today, Ernie was Public Advocate for twelve years and I was for eight. Us two alone served half of the life of this agency, twenty years. Anyway, full-time offices just seemed to me like something that was needed and we needed to build a system.


The NLADA did have involvement. We were involved with NLADA on a national basis. I was talking to Ernie Lewis today or yesterday, about some of his consultations and looking at systems across the country, we did some of that too. I went on an assistance project in Connecticut. We went to look at the whole state of Connecticut. I also did a technical assistance project in Alpena, Michigan, to look at local systems there, to try to help them improve. In early days I used to joke that I didn't know what a public defender was and now I am one. That was sort of that kind of thing with these systems up there.

We were interested in developing record keeping systems or I was, because I 27:00wanted to know who these people were. We experimented for days and weeks with a proper kind of invoice for people to record their time on. We struggled with did we use carbon copies or did we use NCR paper. NCR paper is not the company NCR. NCR just means no carbon required paper that you could write through. We would insist on it. The local public defenders belly-ached and screamed and holler about. What was it, eight papers thick or something like that? Well that was the only kind of record keeping we could begin to gather and we began to do that. We worked on, Ernie mentioned in the article, the AMICUS system, which was a way of allocating time. What we were trying to do was determine how could we go to the legislature and give them empirical information about what was needed in terms 28:00of caseloads, workloads, if we didn't know how much work was being done? So it seemed to me axiomatic that we start out to gather information from the people who were doing the work, how much work, how much time. One of things we were looking for and experimented with, and I don't know if it's been solved yet, maybe it has, was how much time did the average case take, how much time did a death penalty case take, a serious felony case take, or a misdemeanor case take. We were trying to allocate time to public defenders to give them credits with regard to the money. They were working, if I recall correctly, at the magnificent sum of $20 an hour out of court and $30 an hour in court. It seemed to me like, maybe it was lower than that to start with, I don't remember. We wanted to know how much work were they doing so we could go the legislature and 29:00say here we have, what was it, I think when I came on board, we were doing something like 35,000 cases a year total. When I first came on board or when Tony came on board at least, we didn't know how many cases there were. So we had to find out how many there were.

So, we were looking for cases and records. We developed an invoice as I said. We tried to establish better accounting, more accountability. We tried to establish mechanisms, systems. For example, we, as I said a while ago, were doing appeals, a lot of appeals, when I first came to the office. The secretaries were typing appeals to the Court of Appeals on paper masters that you could not make an error on them. Then that paper master, we were one step removed from the 30:00mammogram machine and were putting those paper masters on a roll of an off-set printing machine and running off the briefs. That's how we did it. The secretaries were really grateful to have the latest advanced in IBM typewriters with the little balls, the little Selectric ball that are now in museums only. But that's what they had and I thought somehow we've got to do better than that. We had a real challenge to start with when we got Xerox. The first Xerox machine we had I think was a Xerox 915. It was as big as half of this table and the first hurdle we had to mount and accomplish was getting the Court of Appeals to except a brief run off on a copying machine. Now this sounds like the dark ages, 31:00but that was battle, because how had they been getting them? They had been getting them printed. In the old days, a lawyer who submitted a brief to the Court of Appeals, had to go to a local printer and the printer printed a page in a specific little format, like a little booklet. That's what they were used to getting and by golly that's what they were going to continue to get. We finally convinced them that we had way too many cases to do that. Plus we didn't have a budget to pay for secretaries, let alone pay for the printing of briefs. So that was a hurdle we overcame in the very earliest day.

Now, as we began that march toward word processing the first dedicated word processing machine cost $27,000. We had one in the whole office and it was again 32:00bigger than the copying machine. We had to program it especially. It seems unbelievable today, that that was only less than forty years ago that we had this. We had attorneys out in the field and in my office, Farley why are you giving money to get word processing machines, we need more lawyers! I said, Yes we need more lawyers, but we need also to be able to furnish these briefs. We need to do these tons of briefs that we've got to do in a more effective and a more efficient way. So gradually we were able to persuade them. We did not have a dedicated word processor, now for an example, you have a computer setting on the table here. You have a software system now that provides word processing that was unknown to us in 1975. Think about that.

CAPE: Yeah.

FARLEY: I had just come from the Feds and we were keeping computer records on 33:00computer punch cards. We were keeping records on punch cards and running them off on an IBM 407 accounting machine, and sorting the cards and printing them out by hand. We had hard wired boards, now this was in '72, 1971-72, before I came back to Kentucky, the dark ages. Anyway we had to pull all that stuff together and gradually we got dedicated word processors.

The re-institution of the death penalty, I just don't remember. You will have to ask these other guys who are working more closely with the death penalty. I was really, really focusing on administration and the system's needs and that kind of thing. I was concerned about it. I know we did have a great big argument with the Court of Appeals on a case, but I'm going to mention it in a minute, when we 34:00talk about significant cases because we were trying to get records from them.

Federal legislation had been passed at some point in time, that required a separate advocacy arm for the developmentally disabled. The developmentally disabled listed a bunch of things like epilepsy and some other things. I can't remember all of them, a huge list of things that could happen to you, that had to manifest it's self before 18. Feds were providing money for services for those people. Then there had to be a separate advocacy arm to advocate on behalf of those people to get those services. So, that was assigned to our office, the Office of Public Defender and that's when we changed the name to Public Advocacy 35:00because we had that role, too. That was given to us and we took it. It seemed to be a natural thing, I felt like. We were trying, struggling to be advocates for people.

We needed a body that was sympathetic and understood what it was we were about. We needed a body to be the champion for what we regarded as our cause that is to provide effective public assistance of counsel. That's the key word "effective," that is lawyering that was really effective. It didn't mean we were going to get an acquittal in every case, but it meant that we were going to do the very best we possibly could. The people were going to be well trained and they were going to know what they were doing. They were going to use scientific method and whatever other kinds of things available. We wanted to be cutting edge in terms of lawyering, providing the best kind of representation that we could. The 36:00Commission was going to be the sounding board and also the advocates for us. They have been all along, as far as I understand.

Funding and workload reality continue all that time. I remember going to the legislature, the year, the budget, I mentioned that a while ago. We were talking about per capita funding. We were looking for at least a dollar a head. I think the population of Kentucky at that time was last than three million. I think our funding was less than that to start with. It wasn't even a dollar per person in the whole state. As I mentioned the $20 an hour and $30 an hour rate always was a problem, because caseloads were growing and growing and growing. I don't know what it was Ernie, by the time I left, it seemed like it was in the neighborhood of 40-50,000 cases when I left. I don't know how many it is now, but bound to be 37:00huge. I remember standing in the floor of the House, I think it was, those were interesting days, wasn't even in a Committee Room. I was in the House Chamber it's self on one of the budget presentations that I made from lectern. In the House and Leadership, I was up here in the General Assembly of Kentucky making presentations and asking then the big push was to try and take up and continue the funding that LEAA had started, to be able to have the full-time offices. Seems like they answered the call for a while, but then later it kind of diminished, they didn't continue to see the advocacy of that.

Reappointment to my second in '83, from '83 to '87, or '88, that's not the right years, '75, would have been about '79, I guess, somewhere '79, or '80 for the 38:00second term. I don't remember it being a problem. I just don't remember how it happened. I said to somebody, since I've been here at this meeting, Martha Lane Collins, but I don't think that's right, I think it was Governor Carroll who reappointed me, I think. We would have to look back at terms of Governors to know and I don't know that its significant one way or the other, but I didn't remember any problem.

For a person who seemed to at least, or was made aware of political realities when I first became a public defender, the State Public Defender, I was decidedly an ingénue while I was there because I didn't really pay attention to the kind of politics that one probably needed to. As I referred to a while ago, they told me in '83 I wasn't going to be reappointed and I didn't do anything 39:00about it. Even if I'd known what to do, I didn't do anything about it. But at any rate, I would have like to have continued because I was enjoying myself. I liked what I was doing and you remember, I felt called to do it, you understand. So I felt like I was doing the Lord's works.

Bill Ayer was deputy, was sort of next in line, as I recall, I don't recall much about how that developed. I know he was a hard worker. He was a lawyer that was in the office. I think Bill was there when I came. It seems to me like Tony had hired him I believe, and a good worker. David Murrell was the Deputy when I came on board, who was one of the brightest lawyers that I've ever known. I was going to leave you with a little aphorism here or metaphor, or whatever it is, about the blind leading the blind. David Murrell was blind and I was certainly blind 40:00because I didn't know what I was doing in the early days. But David paved the way for me in so many ways. He was very effective and a very ,very good lawyer. But then Bill came along, I don't remember exactly how that transition was made, but Bill was a very effective Deputy also. He was also mindful of my concerns about mechanics. I had lawyers like Ernie Lewis and Ed Monahan who were great, great practitioners, great students of the law. I never regarded myself as a student of the law or really as avid or skillful practitioner as any of the lawyers. I always said all the lawyers were a whole lot smarter than me. I was much more concerned again about systems, mechanics, and about day-to-day execution, getting the resources, the marshaling and gathering of resources for 41:00the system. We had these folks to talk about and deal with all the cases and the hard work of actually representing clients. Now I had represented clients before. I didn't get to represent anybody on a single case the whole eight years. I probably could have, but it just didn't seem to be my "cup of tea." I was more concerned about mechanics.

Local Assistance Branch in 1980, Ernie and I was talking about that, was it something that you headed up?

LEWIS: Ed headed it up first. And then I headed it up (inaudible).

FARLEY: Ed. The reason for that was again trying to gather resources, gather training, and provide better skills. We were developing lawyers' skill sets if you will, on how to try cases and how to do it more quickly. They had to because 42:00caseloads were horrendous, just like they are now, they were horrendous then. We wanted to provide more resources, more training. Ed, I think, did you start the newsletter?


FARLEY: Ernie started the newsletter. Early on, one of the things I was concerned with, I wanted a newsletter to tell about what we were doing and how to do things. Then what I envisioned was and they, Ernie and all of us collectively, envisioned more of a journal. We wanted more a law review type thing, not necessarily law review in what the law ought to be, but what is the law now. What is the very latest case law decisions that will help you in court? How can you make objections? What is the list of objections you need to have at the tip of your tongue when someone is questioning a witness? So you would be 43:00able to call it to mind. I think so often now, we have an Awana Program in my Baptist church where we're trying to teach young people Bible verses. We were sort of analogizing with that in those early days. We wanted lawyers to be so familiar with case law and the latest decisions that they could apply them in real-time. We were concerned on appeal, cleaning up things that had happened before, but how much better to have somebody ab initio that was applying the latestcase law in court on their feet, ready to response, and that requires training. We had to have the best kind of training. We had to have scenarios. We had to have moot court stuff. We begin to develop that sort of thing. The Local Assistance Branch started the journal. We were looking for the structure. We 44:00have to give a lot of credit to the ABA and the NLADA. ABA had standards on providing public defense, defender assistance. We tied in to every resource we could think of. We had ABA people come down. We had NLADA. I can't remember to the life of me, the man and woman who were the real principles of NLADA that we dealt with. I bet you would know John, who they were. Anyway we ought to mention them and I can't remember. But they were very much concerned and interested in what we were doing.

LEWIS: I think Marty Crawford was one of them, and a guy named Wilson, may have been one of them.

FARLEY: I don't remember.

LEWIS: Then the ABT associates came down.

FARLEY: Yes, yeah. Somebody came up to me yesterday. The guy, is it Schuler?

ROBERT EWALD: Pete, Pete Schuler.

FARLEY: Pete Schuler, came up to me and said he recalled so vividly something 45:00that I had forgotten. One of these groups that we had to come in to training and the training was to try to give lawyers some acting skills, in terms of presenting cases in court, persuasiveness. We were bringing in psychologist to help us be more persuasive and he says he remembers me being the guinea pig on stage, and I was reacting to the instructions of this instructor, and giving facial expressions. I can't imagine having, anybody having more histrionics than me already, but they were trying to amplify some of those things. More importantly, distilled them so that you used them at the proper time and that you gave the proper kind of emphasis, kind of like Bright (Stephen) was doing for us yesterday. Talking about theory of the case and what do you emphasis, what do you de-emphasis, what are the really significant things you need to bring out in a case, and how to do that in terms of effective presentations? I 46:00was a babe in the woods with regard to this. Listen I was suck an ignoramus when I started in civil trials in Pike County. I ought not to even confess this, I didn't know. See I trained in Washington D.C. at the American University and we trained with federal rules. Yes, I passed the Kentucky Bar, but I didn't even know that a majority verdict, a verdict of nine people in a civil trial was sufficient when I tried my first civil case. I won and I didn't realize how I did it. That kind of thing ought not to be. You ought not to go into trial if you don't even know that much. Now I could have learned, but I didn't know that I didn't know that. If you don't know what you don't know, how can you find our 47:00or ask questions about it (laughter). Oh Lord, those were the days.

The Governor Brown's task force under the DPA, something supposedly initiated by Neil John Welch, and I think I blanked that out or something. I don't remember. I don't remember the whys or wherefores of why that was necessary, or why it was done. Maybe as a precursor to the Commission, I just don't recall. One of the guys will, or maybe Allison Connelly will know about that.

We asked the legislature in 1982 to abolish the assigned counsel method. I think from my review of Ernie's article about my tenure, they did abolish the assigned counsel method. What we moved to was the contract system. What we were trying to was get more accountability at the local level, at least have identified people. 48:00We had various varieties of practice. Whether than just take ad hoc list of people who were willing to do this, let's contract with these five people to do this and that sort of thing, to get these cases done.

CAPE: Have names tied with their clients.

FARLEY: Have names and specifics. You'd all agree that contract, particularly when you are dealing with the local Fiscal Court. Here's a group of your constituents that are going to provide this service for "X" dollars per year, that sort of thing. The reason them to do away with the assigned counsel method was because we just thought in all the research, all of our experience had taught us, that this was not the best way to provide effective assistance of counsel.

One of the things that we tried to deal with was, by this time dealing with the Supreme Court, getting data on their imposition of the death penalty. Today that 49:00just seems like, why would they think that they would not have to reveal that information? Why would you have any governmental information that applied to the execution of an office in the Executive Branch of the Judicial Branch, that wouldn't be freely given or provided? I live in Florida now where we have the most active revelation of data and governmental information of any state in the country. It's even more advanced than the Federal Freedom of Information Act. We didn't have that then. The Supreme Court said the data was confidential. What we were trying to get at was, how many black people as opposed to white people, were receiving the death penalty. We wanted to know how that was being done, because we were interested in trying to mount a defense saying what we believed 50:00to be the case, which it was the case, that black people were being sentenced to death, a much greater number of time than white people. We had Bright talk about that while we've been here, that sort of thing. Then I think it was in that caseor one something like that, we filed the action in my name, as an individual and the court told me that I had no special standing to be able to file such an action in my name. I said well, I think that's arouse. I think we can do better, 51:00we'll make it.We'll bring in some other groups as plaintiffs. Don't know that I thought of this at the time, but I had these brilliant thoughts afterwards, as we so often do. After Oral Argument you think about all the things you could have said, things like how about all the people who have suffered and loathed these many years at the hands of people imposing the death penalty or something like that, or all those similarly situated. Kind of a class action here, I didn't think of that at the time. Anyway that was kind of an awkward situation.

The other interesting one that I regard as the most remember and I was troubled today to see and hear about Gail Robinson. Cause Gail and Kevin McNally were there in the earliest days. Tony did you hire them (Tony nods yes)? You hired 52:00both of them; they were already there when I came on board. Frankly in my fairly shouldered upbringing, I had never known people like Gail and Kevin, and I say that in a good way, people who are such fearless advocates. Well, I learned it and saw it in Ernie and Ed, and people we had there. But those two together were, I mean, a formable team. What I'm leading up to is, for some reason we saw fit, now imagine, Ernie, Gail, and I, I think that was three. We decided we were going to go to Washington D.C. and appear before the Senate of the United States, the Senate Judiciary Committee. Joe Biden was in the Senate so long he may have been on the Committee at the time. I know Wendell Ford was. They had an 53:00appointment from Eastern Kentucky. A guy who had been a prosecutor, I know this is being recorded; I'm not going to mention his name. He was appointed to be Federal District Judge. Gail, Ernie and I decided based on his record and the reports that we got from his unfairness as a prosecutor, the way he conducted himself as lawyer in his county, that he did not measure up to the standards of becoming a Federal District Judge. So we decided we were going to go up there and raise issue. I still have those proceedings some place. I have a copy of the proceedings of the panel that I got later. We testified and of course they heard us out and listened to us, went ahead and confronted the appointment. Anyway, 54:00Wendell Ford as he walked out said, Well, I'm sure you did what you thought you had to do. He was very gracious about it and I think that is the only words I've ever exchanged with Wendell Ford.

LEWIS: What made you think that a full-time system could work in Eastern Kentucky under some of the most difficult social conditions in America?

FARLEY: I, again, I was an ingénue, I didn't understand that. I probably didn't know. I knew we had difficult social conditions, but I didn't think about that as a barrier necessarily. I just knew that's what was needed so desperately. I felt like if we grouped enough places together, but that was really an awkward situation in terms of transportation too. That was the other 55:00difficult thing. You couldn't group too many counties together because in Pike County, for example, it took an hour and twenty minutes from one side of the county to the other on the roads we had in 1975. So, I don't know, I just didn't think about that as a problem. I just knew that was so desperately needed, some kind of structure and also probably I was influenced by the fact that at the time by the Feds, the LEAA, and the Appalachian Regional Commission, John you remember.

JOHN: Sure.

FARLEY: They were not supposed fund bricks and mortar projects. But we told the Appalachian Regional Commission which was a federal agency, this was sort of at the off shoot of the Johnson Administration, and the great society that we needed roads, and we needed roads. I felt like if we could get roads and tie 56:00things together then we could work to group those counties together. I don't know that I perceived what those problems were. I just felt like the need was great to have more structure, to have people who really were responsive because I saw too many times, lawyers who were in private practice although well intentioned, they did not want to antagonize a judge. We continued to have that problem.