Oral History Interview with William Ayer, Jr.



CARA LANE CAPE: My name is Cara Lane Cape and today we will be interviewing

Bill Ayer, here at his law office, located in Frankfort, Kentucky. It is January

16, 2014, and in this interview with Mr. Ayer we will be discussing the history

of the Department of Public Advocacy as well as his involvement and experience

with the agency as a deputy public advocate. Mr. Ayer tell us a little bit about

your career work.

BILL AYER: In thinking about this interview today, I did think back over this

and I may get into some things that you're really not interested in, but I am

going to tell you anyway for historical perspective. At the time the public

defender system was proposed in Kentucky by Governor Ford, I was working in the

Kentucky Bar Association. In those days, the Kentucky Bar Association was

located on the second floor of the capitol building, at the west end of the

Capitol; directly across from the floral clock. There were, essentially two

rooms up there that served as the Bar Association. Now today, we've got this

mansion down on the Kentucky River that's a little bit better than that. The

case came down from, I guess it was then the State Court of Appeals, I don't

think it had become the Supreme Court at that point; dealing with the

constitutionality or unconstitutionality of lawyers being appointed to represent

co-defendants. At one time I knew the name of that case, but now I can't

remember it.

ED MONAHAN: Bradshaw v. Ball?

AYER: Right, Lou Ball up in Northern Kentucky and Don Bradshaw who was State

Treasurer. So, the Governor's Office notified the Bar Association that he was

going to propose a public defender law and there were certain attorneys in the

state, through the Bar Association who worked with the Governor's Office to

draft the law and get it passed in the 1972 General Assembly. I had been at the

Bar Association for a little over a year and Mr. Harned, who was executive

director and had been the executive director for a number of years, had become

ill. There was another individual who was there as an assistant director, who

was likely going to be the director and quite frankly, I just wasn't interested

in serving under that individual. As soon as the public defender law became law

and signed by the Governor; I went down and talked to Larry Greathouse in the

Governor's office and told him that I was interested in going to work in the

public defender's office. I certainly wasn't interested in being the State

Public Defender at that time, because that was a big enough task as it was. I

would say within a week after Tony was sworn in he came up to see me on the

second floor because…another little interesting fact that you all may of

already heard about or may not have, the initial Office of Public Defender was

located on the first floor of the Capitol Building. As you come in the front

door, the main visitors' entrance and you take a right down that first hallway;

our offices were right there in that suite of offices there. Now, later on they

moved us up to Leawood Drive, which Ed will remember; right behind what used to

be the Chevron Station up there and put the Adjutant General in those offices,

and then when the Adjutant General Office moved out they turned it into

Lieutenant Governor's Offices. But nonetheless, Tony was down there working in

those offices that basically had nothing in them. I mean, there were two or

three desks and that was it. There was a lady by the name of Lois Simpson; who

probably was the first employee of the office, other than Tony. Tony came up to

see me at the Bar Association and asked me if I would be interested in working

for him, and I said, "Yes." So that is how that came about. As I recall, I went

to work on or about October 1st or October 15th, 1972, there in those offices.

Really our first task in those days was two-fold; one was to setup some type of

appeals operation because there were a great number of indigent appeals

throughout the state that just either weren't getting done or weren't getting

properly done. There were a number of attorneys out in the state that wanted to

turn those things over to us. So that was one thing we had to work on. At the

same time, Tony was traveling the state to try to setup some type of local

counsel operation in every county in the state. So, he was gone most of the time

and that left me to do whatever we could do there in the office with Lois. I

guess a few weeks after I was hired, Tony also hired a law clerk by the name of

Jim Early, who has now also passed on. Jim was in law school at that time over

at UK (University of Kentucky). Jim basically became either a driver for Tony or

anything he could do there in the office; Jim did those sorts of things. One of

the memorable first things that I recall about our days of trying to set things

up is Chief Justice Steinfeld called a meeting of the public defender and me,

and Mr. Harned from the Bar Association was there or his assistant, Mr.

Wittmeyer; I not sure which one was there at that time and then there was some

other court personnel that were in the meeting. We were in his offices, which at

time were located on the extreme west end of the Capitol, second floor right

next to the Bar Association. The one thing that came out of that meeting, which

I will never forget as long as I live is…we sit there and we talked; Tony

explained to the Chief Justice that based on the statute that it was his

understanding that the Public Defender's Office was going to be required to

handle all of the appeals of indigent clients wherever in the state. We would be

writing briefs; we would be submitting those briefs, and etc., etc. One of the

officers of the Court of Appeals, not a judge but one of the officers was

sitting there;a fairly high ranking administrative officer of the court. He

pondered all of this; you could see that he was taking it all in. He was very

thoughtful about all of this and finally he turned to Tony and he said, and he

was serious; he was not joking about this, but he said, "Tony, how are we going

to know when you are serious about these appeals?" That was the mindset that we

were dealing with, not just with the court, but a lot of times with the public.

Because as I mentioned to you all before we went on the tape; until this system

began to be setup, if you were a young lawyer in Knott County, Kentucky and a

felony indigent defendant came up, then you were just likely to get appointed to

that defendant, regardless of what you experience was. It didn't make any

difference whether it was a one to five year case or in those days a two to 21

year case, or a death penalty case; you were just likely to get that and it

resulted in some pretty bad justice quite frankly. Ed can tell you that even in

days that he came on, but that's the mindset we were dealing with. We were

dealing with a court and an administrator of the court that wanted to know how

they were going to know we were serious about a brief that we filed. Tony and I

just sat there and looked at him, and finally Tony turned to him and said, "Mr.

so and so, if we file a brief, we are serious," which the guy was apparently

shocked at that point.

MONAHAN: That was a good answer.

AYER: We continued to attempt to build the system. We attempted to staff our

offices and begin the process. While it probably was not near as professional as

it is today, or as it was in days after that, it did begin a system of providing

appeals to the Court of Appeals and then subsequently to the Supreme Court. That

was probably almost revolutionary, well certainly was revolutionary in Kentucky.

Another thing that I remember about those days, after we had been writing briefs

and handling appeals and that sort of thing for probably six or seven months,

before we moved up to Leawood Drive; one day the postman came in and he had a

whole bundle of mail. Most of which were letters from either the Kentucky State

Reformatory or the Kentucky State Penitentiary at Eddyville or some other place.

When he brought the mail in that day, he said to me, "What is it you all do?" I

gave him the two or three minute version that we represented people charged with

crimes who couldn't afford to hire counsel and that our particular office

represents people on appeals and that sort of thing. He said, "Well, you all

must that be very good lawyers because all your mail comes from the penitentiary

. So again its part of that mindset, but that, not in a nutshell, is my memories

of the early days, the very first days.

CAPE: What did you do prior to coming to the Office of Public Defender?

AYER: As I said, I worked for the Bar Association from December 1971 thru

October 1972 and then I was with the Public Defender Office from October 1972 to

January 1983. In fact, it was a day kind of like today; when I remember the day

I decided to go into private practice. We were back over here in the old State

Office Building, which was behind what is now the State Office Building, right

here at the end of the street. It had been the old prison laundry. One of the

first state prisons in Kentucky was right down here where the State Office

Building is. It encompassed that whole triangular section down there. The

building we were in was the old prison laundry. We were on the third I believe,

the third or fourth floor, one or the other, and my office at that time was at

the far end of the building in a corner so I had a view out towards the Rodney

Ratliff's scrapyard and had a view over toward the post office. I was sitting

there one day working on a brief and looking out the window and it was spitting

snow, kind of like it is today. I literally said to myself, not outloud, but I

said to myself, "You're going to sit here and write briefs the rest of your

life?" I happened to look up and look over there and there's the post office. I

said, "No, I am going to go into private practice." I got up, walked over the

post office, rented a mailbox, did not have an office or anything, rented a

mailbox, that was in October or November, and then told Jack, I guess in

December that I was leaving January 1st. Before that I had been in the Bar

Association for 15 months or so. Before that I practiced law in Madisonville for

about 18 months, from September 1970 until December of '71, and before that I

had been in the army, law school and undergraduate school.

CAPE: Well, you mentioned writing briefs, what other responsibilities as the

first attorney fell upon you?

AYER: Well everything; I mean, literally everything. Interviewing new

employees; I mean most of these guys that we talked about and some of the ladies

that we haven't talked about yet are people that I was involved in hiring. Ed

was one of them, Paul Isaacs, Anna Isaacs, Vince Aprile…

MONAHAN: Joe Jarrell?

AYER: …Joe Jarrell…

MONAHAN: You hired Vince Aprile?

AYER: Hmm…?

MONAHAN: You hired all those folks?

AYER: Well, either I or Tony combined, but I interviewed most of them. Ernie

Lewis, Dave Norat. Later on, Kevin McNally and Gail Robinson, that was after we

moved up to Leawood.

MONAHAN: What about the chief investigator?

AYER: Mahoney? Yes, I was involved with Tony on that as well as some of the

other investigators that he hired; Doug Wilson, Steve…

MONAHAN: Hefley?

AYER: …Hefley, Dave…

MONAHAN: Mucci was one.

AYER: Well, Mucci of course was from Versailles and he was basically Tony's

driver to begin with , but then we hired him as investigator. Uh, but I can't

think of Dave's name, he was from over in Henry County where Steve Hefley was from.

MONAHAN: Dave Stewart.

AYER: Dave Stewart, yeah. In fact, speaking of Mahoney; kind of off the track,

but speaking of Mahoney; I do specifically recall that Les Mahoney was a retired

state police polygraphist and so not only did we use him a general investigator,

but he still had the ability and the license to give polygraph exams. He had

been to Western Kentucky, I don't remember what he was down there for but he had

been to Western Kentucky and he drove back in one afternoon. The next morning he

came into work, again we were located up on Leawood at that time, and he started

having chest pain. We took him down to where the old hospital was, it is now the

Kings Daughter's Apartments over here on Steele Street, and sure enough he had a

heart attack. But he recovered from that and stayed with us for quite a while.

MONAHAN: There was another polygraphist?

AYER: Yeah, big fella, but I can't remember his name. Speaking of the early

days and this was while we were still in the State Capitol. I think, if I am not

mistaken, it was either December '72 or January '73, the national association…

MONAHAN: The National Legal Aid and Defender Association?

AYER: NLADF?

MONAHAN: NLADA?

AYER: Yeah, sent in two individuals to do a, I don't want to say an assessment,

because we were just in the being stages, but an assistance project. One of them

was Rollie Rogers, who was the State Public Defender in Colorado. The other

fellow was a professor from Chicago.

MONAHAN: It wasn't Doug Wilson was it, no?

AYER: No, he was a law professor at the University of Chicago, not the

University of Chicago, but one of the smaller schools. Anyway, they spent two,

maybe three weeks in state and they visited all over the state with Tony; met

with these people and then wrote up a report and all that sort of stuff. We

stayed in touch with Rollie for a number of years. The fellow who was the

professor, we would hear from him from time to time. Rollie came back and spoke

at our seminars.

MONAHAN: Was there an outcome from that evaluation?

AYER: No, I think it was more of an assistance project than it was anything

else, to sort of give us, and I would guess that somewhere in somebody's files

there is a report from Rollie Rogers and I wish I could remember this other

fella's name, as to methods or tactics, or that sort of thing, but I wouldn't

have any idea where that would be. I guess the next, other than gradually

building the system and building the staff and that sort of thing; the next

major thing that I recall related to the system was setting up the annual

seminar. I don't remember which year that first one was, I don't know whether it

was '74, '75. It was held at what was then known as the, the motel across the

corner from St. Joseph's. It's now, why can't I think of the name of it? But

that's where that first seminar was held. The thing that most sticks out in my

mind about that is they put us in a meeting room that was located directly over

the entrance to the building; to the front door to the hotel or motel. That

meeting room was not much bigger than this conference room (approximately 1,500

square feet). We thought, you know this was the early days, we thought that

would be plenty of room and that place was packed with lawyers that wanted to

hear what our speakers had to say; whoever those speakers were and I think one

of them was Rollie Rogers. I think we brought him back from Colorado.

MONAHAN: And did Governor Ford speak at that?

AYER: I don't remember whether he did or not. I don't, he may have at the

dinner, but I don't think he did at the sessions up there. The dinners were held

out back in the…

MONAHAN: So you were in charge of putting that together?

AYER: Yeah, I started it, arranged the speakers; well in those days you just

did everything. I mean you had to arrange the meals, had to make sure the rooms

got reserved, you did it all. I think the first one, maybe the second one was

there at that hotel. Pretty soon after that we moved it to Louisville and for

years, and years, and years we had it at what used to be the Ramada Inn on

Hurstbourne Lane, at the intersection of I-64 and they built that wonderful, in

those days, building out back, which was huge. So you had all the room in the

world for big sessions. They had all sorts of small meeting rooms for small

sessions. It turned out to be a pretty decent place, which by the way that place

is now Ramada again, I noticed the other day as I was coming back from

Louisville, and I thought wow, that's back to the future." In those days we had

those meetings up there, we had some pretty big meetings. One thing that I never

tried to do in any of those things is I never tried to do any speaking. Look,

you got people like Ed and Paul Isaacs, and these guys that are literally

professors in this stuff, and I was not getting into any of that because I was

never the guy with the book sense. I had to take care of other stuff and so I

stayed out of the speaking.

MONAHAN: But you did specialize and lead Post-Conviction after that?

AYER: I did in getting it started, but we pretty soon turned that over to

Norat, Dave Norat. Another thing, I don't want to miss this; in those earlier

days, there were calls as there probably are today for people in the central

office to go out to a county and try a case. Most of us even in those days had

not tried a case. I tried two of them in Letcher County of all places.

MONAHAN: Tell us about those.

AYER: Well, one of them involved a fellow by the name of Franklin Levi Curtis.

Don't ask me why I remember the name, I do. Franklin Levi Curtis was accused of

murder. He worked at a saw mill just outside of Whitesburg. There was a rumor

going around the saw mill that his wife was having an affair with one of the

co-workers there. So, the allegations were that one day after work Curtis came

out of the saw mill, went across the road, and lay in wait for the gentleman who

was alleging having an affair with his wife. When the gentleman came out, Curtis

supposedly shot him, one time, right between the eyes; killed him. We tried the

case in front of Judge F. Byrd Hogg of Letcher County. I have forgotten the name

of the prosecutor in that case. I do remember the name of the prosecutor in the

other case. It was before the effective date of the new penal code. So we were

trying it under the old statutory schemes and he was found guilty; I guess it

was the old version of manslaughter and you could get two to 21 years. He was

found guilty and given five years, because people in Letcher County didn't think

it was right for another man to have an affair with a married man's wife and so

he got five years. He served his time at what was then West Liberty Adjustment

Center, or whatever they called it up in Morgan County, adjustment center or

whatever. I actually went up and met with him a couple times. He eventuallywas

parole after two years or something like that; went back to Letcher County and

as far as I know was a perfect citizen, never had any other problems. The other

case was a horrible case. I mean it was a horrible case. Two young men in

Letcher County were accused of kidnapping a fellow and taking him up on Black

Mountain and killing him. It was just a horrible set of facts. Jim Early and I

defended that case. The judge was Judge Hogg again and the prosecutor was the

author of "Night Comes to the Cumberlands."

MONAHAN: Harry Caudill?

AYER: …Harry Caudill. In those days in Kentucky, we had hired prosecutors. If

the family didn't trust the local prosecutor; if they wanted to spend the money

they could go hire somebody else to be the prosecutor and the prosecutor was

step aside. In most of these cases, the prosecutor was happy to step aside

because he didn't want to be in a fight with the family.To this day I can hear

Harry Caudill standing there talking about "the body of the victim rotting in

the noon day sun." It was just a horrible case. If I am not mistaken the two

kids ended up getting Life (sentence for charges), but we did everything we

could. It was an interesting experience to me because I have never spent any

great deal of time in places like Letcher County or Harlan County. In that case

we ended up, something you don't do very much in a criminal case, we ended up

having to go over to Harlan to take the disposition of the doctor who did the

autopsy, because he couldn't come to court, didn't have time to come to court,

so Judge Hogg sent us over there to take the disposition; so we did. It was just

a fascinating experience. I'm not sure that I'd want to go through it again ,

but it was interesting. And to be honest with you, after those early days, even

though I carried a load of appeals, I think most of my time was spent on

administrative work, whether it was under Tony or whether it was under Jack

Farley. I was involved in various and sundry forms of administrative matters,

whether it be hiring or whatever. I noticed that one of the things that you

mentioned on the list of question was notable cases and to be perfectly honest

with you I can't remember any single appeal that I handled to this day. The only

thing that I can count that for is except for the individual involved, I don't

guess that I ever handle an appeal that was that important to anybody else other

than me and that individual, whoever he or she might be, but I just don't. I

mean I won some and I lost more on appeal and that's the nature of, not

necessarily public defender work, but that is the nature of criminal appeals. I

mean you win a few and you loss more than you ever win.

CAPE: You mentioned interviewing some of the first attorneys and I wondered

was there specific things you was looking for in those people, characteristics?

AYER: I think there were things that Tony and I were both looking for. Probably

more so then legal acumen or anything like that. We were looking for people who

were truly dedicated to defending that person who is not going to get defended

otherwise, and that's not always easy to find, but if youtalk to them long

enough, you will find out what they are really interested in. Obviously over the

years we had people who that would come in, stay two or three years and then

they would be off practicing law somewhere in a big firm, something like that.

But if I am not mistaken the core, or the cadre of young attorneys we brought in

there early on, probably stayed together longer than probably any other legal

office in the state, and it was because of the their commitment. I mean that's

all it could be, because we weren't paying them thousands and thousands of

dollars, and we weren't giving them thousands and thousands of benefits. They

had long hours, they had little pay, and they had damn little thank for anybody

other than possibly their client every now and then, and often times you didn't

even get thanks from them. But they were committed. To this day, I still

remember walking into the building over here behind the State Office Building, I

don't have any idea what I was doing back down there, but I was back down there

one night at 10 o'clock and Larry Marshall was sitting there in his office

working on a brief; at 10 o'clock at night! I mean that's just the kind of

people we had. We had people that were absolutely and totally dedicated to the

people that they worked for and you just don't find that all the time. Unless

you're getting paid $10,000 retained and $400 an hour or something like that,

you just don't find that dedication. Now I could be wrong, but I don't think

even in the Attorney General's Office, I would walk in and find somebody writing

a brief at 10 o'clock at night. But I distinctly remember being in there one

night and finding Larry Marshall in there writing a brief. That's essentially

what we were looking for, we were looking for people who not only had the legal

skills but had the dedication. And quite honestly in some cases that dedication

engendered some resentment. We had resentment from the Court of Appeals; we had

resentment from what became the Supreme Court. They didn't particularly like to

hear us argue about things, in those days were pretty radical but today are

pretty much common place; rights of individuals. They didn't want to hear us

talking about blacks being excluded from the jury when there was a black

defendant. They didn't want to hear that at all. But the Supreme Court said that

you can't do that. We had a bunch of men and women who were willing to do

cutting edge legal arguments and a bunch of judges who didn't want to hear it, right?

MONAHAN: That's correct.

CAPE: Mr. Monahan mentioned the Post-Conviction Branch and you starting that,

but you said Dave Norat had most…

AYER: Obviously, one of the things that we ran into early, most frequently,

other than the need to do appeals and other than the need to setup attorneys in

each county that would take cases on a paid basis for a change, is we would run

into cases that had been tried years before or even recently that had errors in

them, that had been reserved for appellate review. The appellate court turns it

down, but yet it was an error so palpable to us at least, if not to the court,

that we thought it ought to be explored. So it was decided pretty early on that

we were going to have to setup a branch to deal with these post-conviction

matters. Given the nature of small town Kentucky practice, you generally weren't

going to find a local attorney who was going to want to file a post-conviction

action against another local attorney. I mean that just wasn't going to happen.

So it was decided that the office was going to have to setup some system to

handle those types of matters. If I am not mistaken, it was fairly soon after

Dave Norat was hired that we began this process. While Dave for a while did

appeals and that sort of thing, it became obvious that his thing was more toward

post-conviction actions and dealing with the inmates. In fact, if I'm not

mistaken in those early days, he often went to LaGrange and met with people, and

not just LaGrange, but since LaGrange was closer, it was easier for him to get

over there more frequently, but they also went to Eddyville and went to the

other prisons around the state, because of situations like that. There were some

good results that came out of those post-conviction actions, not always, but

there certainly were some.

CAPE: Tell us about becoming Deputy Public Advocate under Jack Farley and how

that came about.

AYER: I guess the first deputy as I recall was David Murrell. I think that is right.

CAPE: Yes.

AYER: David stayed there through Tony and then when Tony left, and eventually

went the Court of Appeals, and Jack was appointed, then Jack kept David Murrell

on. At some point, David decided to leave the office and Jack came to me and

asked if I wanted to be deputy. In all honesty, it wasn't necessarily an easy

decision for two reasons; one I was a merit system employee, I wasn't interested

in exposing myself to any more politics than I had to. Secondly, you just sort

of up the ante a little bit when you get that title, even though you may be

doing some of the same things you get a little bit bigger target on your back.

But I eventually relented and said yes that I would take it. The duties didn't

change that much because basically Jack was a hands on sort of guy. He didn't

leave a lot of things for other people to do that he could do himself. So, I

pretty much continued to do the same things I'd been doing, I just had a new

title. I continued to write briefs; I continued to handle administrative

matters. It just didn't change a whole lot for me, but I began to reach that

point in '82 where I'd been there ten years. There were more and more young

people coming in. I don't know. You talk about getting stale and that may have

been part of it. I just decided that I wanted try private practice. Fortunately,

when I went into private practice here in Frankfort, they were needing somebody

to do public defender work in Georgetown. So, I spent about a year and half

doing public defender work on a part time basis in Georgetown, also doing some

here in town and I've got an interesting story I want to tell you about that;

that young public defenders need to hear. I am serious about this. One of the

big things that I do in my practice today is real estate closing. I do real

estate closings for local banks, mortgage companies, out-of-town banks and

mortgage companies, title exams, that sort of thing. I probably do more of that

than anything. About six weeks ago, the bank that I do most of my work for sent

me a title exam for a property that was going to sale to somebody else. I went

and did the title exam and there was nothing usual about it. I got ready for the

closing, nothing unusual about getting ready for it. I walked into the closing

that day and the closing was in Georgetown, because the bank that I do most of

them for has a branch here and has a branch in Georgetown. This particular

property was in Scott County, so they asked me to do the closing over there. I

walked into the closing that day and sat down. The sellers were a couple by the

name of Mr. and Ms. Brown. It didn't mean anything to me. As soon as we sit down

Ms. Brown looked at me and she said, "Did you used to do public defender work

here in Georgetown?" Now, I did public defender work in Georgetown from '83 till

'84, the fall of '84, September or October of '84; thirty years ago this was. I

said, "Yes, ma'am I did. Why?" She said,"Because some people broke into our

house." I said, "Aww, no.You're not that couple?" She said, "Yes." The story is

this…there were three or four men who were charged with breaking into a house

in rural Scott County in the summer of '83. I ended up representing one of them

and then we had local conflict counsel, because in this case there was a

conflict. There was all sorts of finger pointing going on and we got that

resolved right up front, that we would have to have separate counsel. My client,

I deemed to be the less culpable of all three or four of them, and the

prosecutor did too. The prosecutor was Gentry McCauley at that time and he did

too, but he was pretty much set on all of them going to the penitentiary. I just

didn't think that my young man deserved to go the penitentiary. He was 18 years

old. He was just out of high school. He had no prior criminal record. He was not

the ringleader of this group. He was there. He participated, but he was not the

ringleader; he should not have gone to the penitentiary. But the judge at that

time probably would have followed the recommendation of the Commonwealth. This

was before we had the written offer and all that sort of stuff. So, I said there

is something we've got to do and I contact Mr. and Ms. Brown. I said, "My client

is charged with breaking into your house. I think you need to meet this young

man; I think he has a story to tell you." They said, "Fine, bring him out here;

we'll talk to him." Ed's going to look at me and say, what in the hell are you

doing? Taking your client out there to talk to the victims whose house he broken

into; I mean they just ran ransacked this place. I mean it was a mess. The

pictures were just horrible. Well, one Saturday morning I picked up my client in

downtown Georgetown and we drove out to Mr. and Ms. Brown's house. We sit down

with them face-to-face and this kid starts telling them how sorry he was and how

his momma and daddy are just…on and on and on, and he was the most convincing

young man I've ever seen. That couple, after he pled guilty, went in and not

only wrote a statement, but they went in and testified in front of the judge

that he ought to be given probation, and the judge gave him probation. That

women said to me at that closing, just six weeks ago, "I've still got your card

where you came out there that day and I told my husband then and I've told him

20 times since then, if we ever need a lawyer that's the men we want to go to.

I'd never seen them before. They did tell me that the young man, after it was

over with came back out, apologized again. That he was fine citizen there in

Scott County and never been in any other trouble. Now the moral to the story is

--there is more than one way to represent your client to get the best job for

you client. This guy if we hadn't done that, there is no doubt in my mind he

would have spent some time in the penitentiary, and in those days we weren't as

crowded as we are today and he wouldn't have sit in the jail he would have gone

down to LaGrange, at 18 years old. It's just funny how things like that turn out.

MONAHAN: That's a neat story.

CAPE: You mentioned that there were some challenges with attitudes and stuff

when the system was first starting. Were there any other challenges that came up?

AYER: Well, yeah and the same challenges Ed faces today; money. Even though

they allocated the amount that they allocated at that time, and I don't even

remember what it was; it wasn't enough to start off. Now, for some of the

attorneys in some of the counties they were just thrilled to death to get

anything, because they had been doing all this work of years and years for

nothing and they were just thrilled to death to get anything. But in places like

Lexington and Louisville, even though they were legal aid programs already

somewhat in existence, you just didn't have enough money at that time to fund

them the way they ought to funded and most, most of the fiscal courts in the

counties didn't fund a penny. Now, some of them did to their credit, but most of

them did not. I assume today they don't have to worry about funding any of it,

do they?

MONAHAN: That's correct.

AYER: Yeah, but in those days, some of them did. In counties were you had a

strong, honest, and politically popular prosecutor; he could often explain to

the fiscal court the necessity of having a good defense bar. So, some of those

counties you could get those funds. But if that prosecutor ever left his job,

then fiscal court has no interest in funding defense work, and that's what would

happen. But that was probably the biggest challenge, was funding and it always

will be.

CAPE: And who was the key player there in the criminal justice system during

that time?

Mr. Ayer. Well, the local prosecutors probably were the biggest player and I

specifically said a while ago strong, honest prosecutors because there were some

prosecutors that weren't going to go speak on behalf of paid criminal defense if

their life depended on it. They didn't want to be challenged on any of these

things. But there were local prosecutors who were very helpful. Certainly

McCauley over at Versailles was one. There were others throughout the state who

were helpful. I don't know that we ever got any particular help out of the

Attorney General's Office, because here we was all of a sudden starting to file

all these appeals and therefore their office was going to have to work more, so

we never did get a whole lot of help out of the Attorney's General's Office.

Although quite frankly Judge Stephens who eventually was Chief Justice of the

Supreme Court, did speak quite favorably on behalf of the public defender

system. You know one of the things that I still marvel at; I mean I know that in

Bradshaw versus Ball, the court said we're going to have to do something about

the defense bar, you going to have to do something about. But Governor Ford was

not a lawyer; he had some good lawyers in his office, but he wasn't a lawyer.

But he became personally committed to the public defender system. I don't know

that he ever got the recognition that he deserved over that. I mean you know we

recognized him locally and that sort of thing, but that was --if you look at the

publically charged environment today around this country; that was pretty strong

thing for him to do. It would have been an easy thing for him to say, I'm going

to let the legislature worry about that one, I'm not going to push this bill.

But he didn't do that; I mean he sent his point in the House and the Senate and

said this bill is going to go through. Of course things are different in the

legislature today than they were then, so . The Governor had more control, but

he didn't have to do that and he did.

CAPE: Yeah; any other supporters or enemies even of the DPA at the time?

AYER: Maybe it's just memory failing me, but we were a bunch of lone wolves in

those days. There weren't a whole lot of people outside the office. There were

some people in Louisville that were helpful and there were people in Lexington

that were helpful, but outside of the two metro areas it was pretty much a lone

wolf situation. You had local defenders in some counties and other counties we

had to fill in and that sort of thing, but I can't remember anybody that

specifically was that much more of a supporter than anybody else. As far as

enemies, I know at least at one time I had some concerns about whether the State

Supreme Court was an enemy or not. I remember one case in particular were Mr.

Farley went up there and I think they had a couple state policemen to come up

there that day. I don't know that they'd ever done that in any other case that

was going on. So you kind of wonder what was going through their minds.

CAPE: Well, you talked about Post-Conviction and getting that started up, any

other program changes or organizational changes that came about?

AYER: Well, yes of course, I can't tell you the dates, but of course we picked

up the Protection and Advocacy of the developmentally disabled, what was that

Ed, '78?

MONAHAN: It was then or a little bit later, but tell us a little bit of what

you remember about that.

AYER: Hmm?

MONAHAN: Can you remember anything?

AYER: Well, what I remember about it is that in response to federal

legislation relating to educational opportunities for developmentally disabled

children; the State was required to establish a division relating to the

developmentally disabled. As I recall and this I may be a little hazy on, but as

I recall originally there was discussion that that would go in the Department or

Cabinet for Human Resources, but there were others who said, wait a minute

here…these people are going to have to be independent advocates on behalf of

these children. If you put them in an agency that is more of a regulatory

agency, then an advocacy agency, then it's going to get lost and the whole

purpose behind the federal statute was to make sure that these children don't

get lost in the system. So, in the end I think it was the Governor's Office that

decided to place it with what was in OPD, Office of Public Defender and they

placed it there, as I recall. Now, that may be subject to verifying the facts .

I will be perfectly candid with you; I had a client about three months ago who

called me about some issues that she was having with her child and the local

school system. So, I called your office and we came over and sit down and met

with a couple of your people and your people took care of her. Here's the thing

about that, criminals, people who are charged with crimes deserve

representation, but these kid who are in some cases severely and profoundly

affected need advocacy too. It's a different type of situation, but this young

child that I was telling you about is handicapped to the point that the school

was telling his mother that she was going to have to provide a person to come in

and stay with him at school all day along, every day. That the school system

wasn't going to do that. Ok? It's just not right;there are still those attitudes

out there. In as many years as we have been doing this stuff, there are still

those attitudes out there and somebody's got to do it. I guarantee you if that

agency had been stuck in Human Resources there is no telling when somebody of

have got around to listening to that story.

CAPE: What were you involved in nationally, as far as public defender issues, organizations?

AYER: You know other than belonging to the organization , I don't know that I

ever had any dealing with them other than through as I mentioned the two people

who came in early on. I don't remember ever attending any of their conventions.

We would call on them for brainstorming and that sort of thing, but I just never

had many dealings with either the National Association of Criminal Defense

Lawyers or the public defender organization that we were talking about earlier.

It was just one of those things that I just didn't deal with them a lot. Now

attorneys in the office did. Attorneys in the office went to their meetings and

spoke, and all that sort of thing, but I just never had a lot of dealings with them.

CAPE: We've mentioned funding has always been kind of short, what were the

workload realities, also during that time?

AYER: Well, it was always heavy, it was never light. Once the word got out that

we were doing appeals, it was that way from the beginning. As Ed knows, because

of the workload, even in Ed's early days there were times that we had to ask the

court for extensions to file a brief. As I recall, in the early days they

weren't too bad about that. But there came a time when they just decided, hey

maybe this is a way to crack-down on this thing and it got rather tense between

the office and the court on some of those. In fact, that may have been part of

the reason they called state police up there; Farley may have been over there on

that type of matter. You were just constantly struggling with that, particularly

if you had a case that was tried for three or four or five or six days and then

you had to get the record in and you had court reporters that didn't work

full-time. You didn't have video records in those days and you just couldn't get

the court reporter to get the transcript finished. You couldn't get the clerk to

get the transcript of the record complete and those are things that you really

shouldn't have to worry about. But when you dealing with cases from 118 or 119

counties, it put a lot of stress on most of those people, I mean it really did,

put a lot of stress on them.

CAPE: What are you most proud of accomplishing while at the Office of Public Defender?

AYER: Well, I guess probably the fact that the office is still in existence .

Seriously, before Bradshaw versus Ball came down and before Governor Ford

proposed the office and the statute; I don't think many of us thought that it

would ever happen in Kentucky. It might happen in some of these other states

that are more progressive, but I don't think anybody thought in 1972 that

Kentucky would be on the for front of a statewide public defender system. So, I

think the thing that I would say that I was most proud of is that we survived

all of that, because it was literally starting from ground zero and working up.

That's just what it was. I tell you another little funny story about those days,

going back to my Bar Association days. Prior to 19.., I think prior to 1972,

'73, '74; when was it we adopted the unified court system? Was it '70…

MONAHAN: '76

AYER: Ok. Hmm, that long huh?

MONAHAN: '74 or '76

AYER: Ok.

MONAHAN: It could have been '74.

AYER: I was working for the Bar Association when I first heard about this and

here's what this story is--Mr. Harned who was the executive director of the Bar

Association and I should back up one more step.

MONAHAN: Say that again, when did we adopt the?

AYER: The public defender was '72.

MONAHAN: Yeah, and when did we adopt, you question was?

AYER: The unified court system where we did district, circuit, Court of Appeals…

MONAHAN: Ok, that was '74 or '76.

AYER: Ok. Well, I should back up a step that I didn't tell you about. The way I

ended up in Frankfort with the Bar Association is in 1960…I'm going to say

1964; I was in school at Murray, Murray State and I was at that time the head

counselor in the dorm that I was living in. It was move in weekend, I would say

August of '64. I remember this young man and his parents being there and his

name was Mac, that's what we called him, Mac. His last name was Harned, his dad

was Henry Harned, who was the director of the Bar Association, but didn't know

who Henry Harned was, all I knew was Mac was a student, we were getting them

moved in. I met his dad, met his mom, and we just knew each other that way.

That's the only way we knew each other. In '65 I graduated from Murray, '68 I

graduated from law school. I had a classmate in law school by the name of John

Elias, who was from Pennsylvania. After I graduated from law school, I was in

the army for two years, one year at Fort Bliss in El Paso, Texas, and the next

year I was in Korea, for a year. I got to Korea and John Elias was in Korea. The

army had gone to only using lawyers for defense counsel under the uniform code

of military justice at that point. Up until that point, anybody could represent

a defendant in a military court martial proceeding, but in '70 or '71, because

they sent me to the JAG School at University of Virginia for a six week course,

were you could become defense counsel. So, John was over there; he was working

in the JAG Office, but he couldn't be appointed to represent a defense lawyer

because he had not been sworn into the Bar before he went into the army. He's

got a law degree, he's passed the bar exam, but he didn't get sworn in. Well

because I had met Mr. Harned back at Murray and I knew by then that he was the

executive director of the Bar Association, I wrote him a letter. I said, we've

got this fellow over here, graduated with me from law school, he passed the bar,

but he had to go into the military before he got sworn in, but he can't be a

defense attorney because he doesn't have his license. Could you go talk to Chief

Justice Pa1more and ask him if there is some way they could send over an

affidavit for him to sign, whatever he needs to do in order to be sworn in?

Harned got my letter and he went down and he talked to Chief Justice Palmore.

Justice Palmore said, well that's stupid, sure he could be sworn in. So they

sent him the oath, had it signed, notarized by a JAG officer, sent it back, and

John got to serve as defense counsel for the rest of his tour in Korea. I then

get out in September 1970, go into practice in Madisonville; I'm minding my own

business. In fact I'm over in Hardinsburg, in Breckinridge County, just outside

of Owensboro, at some kind of hearing over there, and the clerk's office comes

in and hands me a note, that says call Henry Harned, Frankfort, 564-whatever

(phone prefix for local Frankfort phone numbers). I called him and he said, "You

have any interest in working in the Bar Association in Frankfort?" I said,

"What?" He said, "Do you have any interest?" I said, "Well, yeah, I have some

interest, why?" He said, "Well, be in Lexington tomorrow morning at 11 o'clock.

The Board of Governors is meeting over at the…," what used to be the Phoenix

Hotel or the Lafayette, one or the other. I drove up here. Spent the night in

Frankfort, no spent the night in Lexington, because, completely off the subject,

that's the first time I ever saw the Castle over there. The Castle was being

built, while I was driving that night. I interviewed with the Board of Governors

the next day and got invited to come as an assistant director, and this will

interest you (speaking to Mr. Monahan) because of your parochial background. In

January '72, the Bar Association sponsored a seminar at the University of

Kentucky (UK) Law School; excuse me not the University of Kentucky Law School,

at Memorial Hall on the UK campus, dealing with abortion and abortion laws. The

fellow from Northern Kentucky or Cincinnati, Dr. Thomas…?

MONAHAN: Uh, I know who you mean.

AYER: He spoke at that. I set that up on behalf of the Bar Association and UK

Law School.

MONAHAN: Willky.

AYER: See none of that has anything to do with…

MONAHAN: Dr. Willky.

AYER: Yeah, John Willky, Dr. John Willky. Yeah, where were we .

MONAHAN: Let me ask you this question Bill, you worked under Tony Wilhoit who

went county by county and setup programs where the office contracted with local lawyers.

AYER: Umm-hmm.

MONAHAN: You then became deputy under Jack Farley and Jack was moved with great

energy towards full-time public defender system. Do you have any comment? I mean

they were two public advocates that had two very different visions. When Public

Advocate Wilhoit was interviewed he continued to talk about the two different

systems, and the value of one over the other. Do you have any reflection on

those two different methods of delivering the services under two different

public advocates?

AYER: Yeah, I do have thoughts on that and I have what I believe to be reasons

why each went the way they did. Tony was a county attorney; had been a county

attorney for a number of years. Tony understood the realities of the moment and

the realities of the moment are; you've only got a certain amount of money to

start out with and there's only one way to do that if you are going to try to do

it in all 120 counties. Now, I guess Tony could have chosen to spend the bulk of

that in Lexington and Louisville and just a little bit in the other 118

counties, but Tony because of his role as county attorney had a connection that

he could make with county attorneys and fiscal courts that probably somebody

like Jack Farley would not have been able to. Jack didn't have a whole lot of

experience at the local level in Kentucky. So, I think what Tony did, is Tony

used his experience and background to get the ball rolling from the meager

beginning. I think Tony recognized from the beginning that there's no way he was

going to setup a full-time system with a million and a half dollars, or whatever

the amount was that we started out with. So with his experience and with his

background and that sort of thing he ran it that way. By the time Jack Farley

arrived, it was clear that in some areas, the paid local counsel system just

wasn't working. In fact, as you know (speaking to Mr. Monahan), we had areas

were people were just not participating, period. You couldn't really force them

to participate and I think most of us probably thought that at some point

Bradshaw v. Ball might be expanded, that $25 an hour is not a constitutional pay

and you can't get the service that they're entitled to. I think what happened is

Jack from a practical standpoint went the route that had to be gone; number one

because of the circumstances and number two because he didn't have that

connection with the local people that Tony did. It wasn't any skin off his back

if he hurt some feelings in McCracken County or Calloway County, or someplace

like that; whereas in all honesty, Tony had personal relationships with some of

those people, a lot of those people. So, I think it was apractical thing. I

don't think it was a philosophical thing with Tony, I think it was just the

realities of the matter with Tony. Jack I think it was philosophical in that I

think he thought and those in the office at the time thought that there was

going to have to be a full-time system in some areas, so we might as let those

dominos fall.

MONAHAN: That's good. This has been good Bill.

AYER: Well, I'm always willing to talk .

CAPE: Any other thoughts?

AYER: My other thoughts are that it's amazing to me how far this thing has come

in the 30 years or 40 years it has been in existence. Now, someone else looking

at this might very well say, you hadn't done any more than that? But they don't

realize what it is like in Kentucky. I mean they really don't. When you talk

about having to get a 138 people across the river to vote on anything for people

who are charged with committing crime, that's a tough sell; granted there are

some people in the legislature who will always back you, you'll always have

some, but we are never going to have the majority in the legislature .