From Tolkien to the Ten Key Components

Philosophical and Ethical Considerations for Judges and Attorneys in Drug Court

Clayton Ballard & Souder Tate16th Annual Conference - Missouri Association of Drug Court Professionals

(March 27, 2014)

Three Types of Presenters

• the SAGE• recognized expert in the field

• speaks with authority

• the SHERPA• trusted guide

• speaks with confidence & empathy

• the STRUGGLER• fellow traveler

• speaks with transparency“there’s a mountain?”

I. Tolkien, Philosophy and the Power of Story

growing up …

• Avid Reader

• Favorite Book = Lord of the Rings

• Dungeons and Dragons

• Went to church

• College: Math/Education to

Creative Writing/Pre-Law

grown up …

• I still like to read

• Favorite Book = Lord of the Rings

• Lord of the Rings Online

• Still go to church

• an attorney over half my life

• over six years on treatment courts

• Three important things I’ve realized:

power of story, gratitude, success=serving others

Why are Stories Important?

• Telling ourselves stories helps us navigate life by providing structure and direction

• Just like attitudes determine actions, our story helps create and determine our destiny

• The most important story we will ever tell about ourselves is the story we tell to ourselves!

Elements of Story

• Plot (story-line) What

• Characters Who

• Setting Where

• Style How

• Theme Why

The Theme presents the overall wisdom or philosophy of the story

Philosophy & Worldview

• Our Philosophy of Life is our attempt to answer the BIG QUESTIONS about the fundamental nature of knowledge, reality, and existence

• We develop our Philosophy through the colored LENS of our Worldview

• Our worldview is made up of the subjective intuitions and assumptions we pick up from life

• e.g. Family, Experiences, Church (or lack thereof), Books, TV, School (even Law School!) …

some BIG QUESTIONS

• What is ultimate reality? material, spiritual, both?

• Is there only the natural? or is there supernatural?

• How did we get here? time + chance? by design?

• What is a human being? animal? an image bearer?

• Are there absolutes? Truth? Goodness? Beauty?

• What is the meaning of life? Does mankind have a purpose? Is he fated or free?

• What is the meaning of history? Is history a story? or is it chaos?

my worldview

• Creation/Fall/Redemption (and Restoration)

• As applied to my clients

• What is my client? an image-bearer, created for a purpose, knows right from wrong (innately, laws)

• What’s wrong my client? broken, has chosen wrong, cut off from society, not fulfilling his purpose, needs to be restored

• What is the Solution?: consequences (justice or mercy), restoration, help him find his purpose

Elements of Story in Drug Court

• Plot

• Characters

• Setting

• Style

• Theme

• Participant’s progress in drug court (reward/sanction/treatment)

• Judge, Prosecutor, Defense Attorney, Probation Officer, Treatment Provider

• Drug Court

• Therapeutic Jurisprudence

• Help participant overcome addiction and reduce recidivism following the Ten Key Components and Evidence-based practices

Elements of Story in Tolkien’s LOTR

• Frodo goes on a quest to destroy the one ring

• Frodo, Sam, Gandalf, Aragorn, Fellowship, Gollum, Elves

• Shire, Middle-Earth

• richness of the language and descriptions; the importance of names

• Hope, friendship, courage, sehnsucht, eucatastrophe

• Plot

• Characters

• Setting

• Style

• Theme

Sehnsucht

• German for intense longing, yearning or craving

• C. S. Lewis described it as the "inconsolable longing" in the human heart for “we know not what”

• a bittersweet, nostalgic longing for the transcendent

• the hole in the heart that can be filled with the transcendent or with “stuff”

• turned outward, it can lead to freedom

• turned inward, it can lead to addiction

• Think about the participants in your own court. What is it that they really long for?

Eucatastrophe

• “Eucatastrophe is a neologism coined by Tolkien from Greek ευ- "good" and καταστροφή "destruction"

• the sudden happy turn in a story which pierces you with a joy that brings tears

• it is a sudden and miraculous grace: never to be counted on to recur. It does not deny the existence of sorrow and failure; in fact, it is the possibility of sorrow and failure is what makes the joy so intense

• Think about a participant in your own court you thought destined to fail, yet, miraculously, turned their life around.

Comparisons

• Ring – beautiful/desirable

• Ring will ultimately destroy

• Frodo must go on a quest to destroy the ring

• Frodo needs a fellowship

• Purpose of the fellowship is to serve and support Frodo

• In spite of the very real chance of sorrow and failure, Frodo and the fellowship go on, looking for that sudden miraculous grace

• Addiction – beautiful/desirable

• Addiction will ultimately destroy

• The addict must go on a quest to overcome addiction

• The addict needs a fellowship

• Purpose of the team is to serve and support the addict

• In spite of the very real chance of sorrow and failure, the addict and his fellowship go on, looking for that sudden miraculous grace

my conclusions

• Life is a story – each story is part of a larger story

• The stories our participants tell themselves will determine their destinies

• There are absolutes such as Truth, Goodness and Beauty, and we need to discuss those absolutes

• All people long for something greater than themselves – a transcendent purpose or cause; many have settled for something much less and become addicted to what can never fill their greatest longing

• Purpose in life is found in relationships and service

my conclusions (cont)

• Our purpose on the team is to serve the addict• We serve not out of duty but out of love and

compassion (which are choices before they are feelings)• We must be willing to suffer sorrow• Even in the midst of sorrow and failure, there is always

hope for a sudden, miraculous turn of events• Every story needs a hero• Every hero needs a cause or vision• We can help our participants become heroes by helping

them re-write their stories, discover their vision and change their destinies.

my vision is to help clients:

• Cultivate Character through Community

• Seek Accountability for Actions and Attitudes

• Embrace Responsibility for Relationships

• Pursue Excellence with Enthusiasm

• Re-define Success as Serving Others

II. Roles: Judges and Attorneys

Judge’s RoleCriminal Justice System

• Manage Court Docket

• Impartial decision-maker

• Rule on matters of law and fact

• Referee between prosecutor and defense attorney

• Protect defendant’s constitutional rights

The Judge is central to the overall success of the drug court program. The participant talks directly with the judge instead of through counsel. It is during this time that the judge lets the offender know what is expected of him/her regarding the program and recovery process, the legal aspects of the program (if the person fails the drug court or decides to “drop-out”), and will provide the sanctions and rewards as needed.

Judge’s Role (modrugcourts.org)

Judge’s RoleTreatment Court

• Team Member

• Leader –first among equals

• Communicator

• Educator (and Student)

• Community Collaborator

• Institution

(see NDCI, Drug Court Judicial Benchbook, pp. 47-61)

Prosecutor’s RoleCriminal Justice System

• Tough on Crime

• Protect Public Safety

• Vigorously Advocate/Pursue Convictions

• Punish the Defendant

• Defense Attorney as opponent

• Pursue convictions

• Protect victims

“The Prosecutor is responsible for screening the offenders for eligibility into the drug court. Once an arrest is made, they review the charges, determine if the offender is eligible and talks to the offender about “volunteering” for the drug court. If the offender agrees to participate, the prosecutor may be responsible for explaining the program and having them sign locally required waivers for entry into the program. Once in the courtroom, the prosecutor is a non-adversarial player in the process.”

Prosecutor’s Role(modrugcourts.org)

Prosecutor’s RoleTreatment Court

• Non-Adversarial/Team Member• Gate Keeper/Referral Source• Veto Rights – Public Safety concerns• Monitor Program Fidelity• Protect Due Process and the Constitution• Educate Law Enforcement (including jails)• Fix the Defendant• Encourager – supports the Participant

Defense Attorney’s RoleCriminal Justice System

• Traditional Adversarial Role

• Represents the Defendant

• Zealous, Partisan Advocate

• Advises the Client

• Negotiates for the Client

• Makes Court Appearances

• Avoids actions that might conflict with Client’s interests

“The Defense Attorney, while remaining in a non-adversarial role with the prosecuting attorney, works with the client to discuss the option of the drug court program and works in the best interest of the client. It is important that the defense attorney assists with the reinforcement of the person’s successful recovery. If the person is failing the program, the attorney should let the person know what they will be facing regarding the criminal charges if they do fail the program.” (emphasis added)

Defense Attorney’s Role(modrugcourts.org)

“It is recommended that an attorney be present in the drug court to represent the defense side of the system. Again, the attorney would not be “representing” the client regarding criminal charges, but would assist with the drug court process.”

Missouri Resource Manual for the Development and Implementation of Drug Courts

(April 1998 Revised February 2000)

Defense Attorney’s RoleTreatment Court

• Key Component #2: Using a non-adversarial approach, prosecution and defense counsel promote public safety while protecting participants’ due process rights

• In large part, the role of the defense attorney in drug court depends on who is the client.

III. Who is my Client?

Does a defense attorney serving as a team member in a problem-solving court have an attorney/client relationship with individual participants?

The Defense Attorney in Drug Court

• NDCI, “Ethical Considerations for Judges and Attorneys in Drug Court” (May 2001)

• NDCI, “Critical Issues for Defense Attorneys in Drug Court” (2003)

• NDCI, Drug Court Review, Volume VIII, Issue I (Special Issue: Best Practices in Drug Courts), “Participation of Defense Attorneys in Drug Courts”, Michael Tobin, pp. 96-130 (2012)

NDCI, Ethical Considerations (2001)

• Prosecutor and defense counsel:

• Non-adversarial and work together as a team.• Cooperate in achieving the shared goal of reducing

or preventing recidivism by addressing addiction.

• Defense counsel has two duties:

1. As team member, explains drug court process, prepares participant for appearances, and helps participant conform behavior drug court standards.

2. As attorney for participant, ensures that client’s perspective is heard and respected, the client’s rights are protected, and that drug court procedures are followed.

NDCI, Critical Issues (2003)

• Traditional system – “Defense Attorney’s role is clearand well-established”: Zealous, Partisan Advocate

• “The only permissible goal of the drug court programis to work toward overcoming addiction, and one ofthe fundamental premises of this program is that thejudge and the treatment team “know best” whatactions are necessary to achieve this goal.”

• Defense Attorney part of a team devoted to ensuring the defendant’s rehabilitation

• Advocacy for client takes place in staffing conferences

NDCI, Drug Court Review (2012)

Recommendations

• Each treatment court should include a defense representative on a team who oversees the court’s policies and operations

• Participants should have access to adversary counsel

• Divides the roles of the defense attorney in drug courts into the Defense Representative and Adversary Counsel

• Same defense attorney should not try to fill both roles simultaneously

Defense Representative’s Role

• non-Traditional, collaborative team member

• does not advocate for individual participants

• advocates for evidence-based practices that advance therapeutic goals

• advocates for effective policies

• ensures Drug Court follows standards and procedures

• looks for areas of improvement

• educates the Defense Bar

Defense Representative’s Role: Advocating for policies and practices

• advocate for broad array of supportive services, such as transportation, housing and education to assist indigent participants

• advocate for evidence-based practices such as graduated sanctions and rewards that recognize the high incidence of relapse during treatment programs

• advocate for policies that are therapeutic and not punitive

Defense Representative’s Role: Assisting Participants

• During staffing, point out mitigating factors

• During staffing, suggest possible sanctions other than incarceration

• Encouraging participants in their efforts to complete drug court

• Answer participants’ questions about drug court procedures

• However, MUST advise participants that not acting as Adversary Counsel

Defense Representative’s Role: Educating the Local Defense Bar

• Drug Court’s potential advantages and disadvantages

• General policies and procedures of the Drug Court

• Eligibility criteria and processes

• Legal consequences of successfully completing drug court

• Legal consequences of failing to complete drug court

• Encourage attorneys to observe at least one session of Drug Court

• Open door policy if defense attorney has any questions

Adversary Counsel’s Role

• Represents the Defendant

• Traditional; zealous, partisan advocate

• Advisor, Negotiator, Litigator

• Makes court appearances

• avoids actions that might conflict with client’s interests

• represents the client prior to entry into drug court

• represents participant for sanctions and terminations after entry

Adversary Counsel’s Role:Advising Client

• Prepare client to make an informed choice

• Potential advantages and disadvantages of drug court

• General policies and procedures

• Nature of any waivers of rights

• Legal consequences of successfully completion

• Legal consequences of failing to complete drug court

• the extent adversary counsel will be available after participant enters drug court

• arrange for client to attend drug court session

Adversary Counsel’s Role:Staffing, Review, Sanctions and Termination

• Best Practice - offer adversary representation whenever participant faces incarceration as a sanction

• If indigent, counsel should be appointed

• especially critical when facing termination

• Participants may knowingly and voluntarily waive the right to counsel as part of an agreement to enter drug court

• Despite a waiver, adversary counsel on the underlying case should remain available to answer any questions about underlying case.

Dual Roles Discouraged

Trying to fulfill both roles creates at least theappearance of a conflict between the duty toassist the Drug Court in fulfilling its broad,therapeutic mission and the duty to advocatefor individual clients.

food for thought …

• If the Defense Representative on the team is notrepresenting the participant, and if adversarycounsel believes that representation ended when theclient entered the program, the participant isappearing pro se. This clearly raises constitutionaland ethical concerns.

• What can we do to encourage the defense bar toremain involved with their client while in treatmentcourt? What releases need to be signed by theparticipant to insure the defense representative isprotected?

III. Ethical Issues for Judges and Attorneys

Competence

State v. Smith, 840 So.2d 404 (2003)

“It is essential that lawyers educate themselves as to … drug court programs. Only then can they effectively advise their clients. It is equally important for the institutions that educate future lawyers, as well as those that educate the other disciplines that play vital roles in the drug court process to incorporate drug courts into their curricula.

For lawyers to do otherwise is for them to become legal dinosaurs. To ignore the need to learn about the drug court process is to ignore the evolution of the justice system.” (Emphasis added)

Competency: What?

• Policies and Procedures of your own Court

• Ten Key Components

• Evidence-based practices

• Risk and Needs (and RANT)

• Incentives and Sanctions

• Addiction and Pharmacology

• Gender, Age and Cultural Issues

• Constitutional and Ethical Issues

Competency: How?

• Education• MACDP Conference

• NADCP Conference (for those lucky few)

• Networking/Mentoring

• Webinars – for example, www.ndcrc.org

• READ, READ, READ – again, www.ndcrc.org

• Experience• SERVE, SERVE, SERVE

Scenario 1

In a judicial circuit with only one circuit judge whoalso happens to be the drug court judge, should thesame judge preside over both the terminationhearing and, if terminated, the probation violationhearing?

Scenario 2

At staffing, the probation officer asks for a 48 hour jailsanction against Johnny for testing positive formethamphetamine. Since Johnny denied use, samplesent for confirmation. Lab has confirmed positive formethamphetamine. Johnny still denies use. The judgeannounces he will take Johnny into custody at Johnny’snext court appearance to begin serving the sanction.

1. What, if anything, should defense representative say at staffing?

Scenario 3

Adversary counsel represents Jill on an aggravatedDWI. Typical offer in such a case is 120 InstitutionalTreatment, but counsel has persuaded prosecutor torecommend statutory minimum of 60 days shock withspecial condition of DWI Court. By agreement, theSentencing Assessment Report will be waived. Alas,two weeks before the plea date, Client is arrested foranother DWI.

1. Is adversary counsel under an affirmative duty to notifythe prosecutor about the new DWI?

2. Can adversary counsel waive the SAR, knowing thatdoing so will conceal the new arrest?

Scenario 4

While walking into Walmart, drug court judge recognizesSuzie, a participant, helping her daughter at a tableselling Girl Scout cookies. Suzie is doing very well in theprogram. As he walks by, Suzie recognizes him and theysay hello to each other. Suzie asks if he would like to buysome cookies.

1. Should the judge buy Girl Scout cookies?2. Should the judge compliment Suzie on how well she is

doing?3. Should the judge even stop at the table?4. Would your answers be any different if Suzie were not

doing well and had a pending termination hearing?

Scenario 5

Vera is in drug court, pre-plea deferred prosecution.She has had no new laws violations; her only violationshave been repeated relapses. Prosecutor wants towithdraw the deferred prosecution agreement.

1. Can prosecutor unilaterally withdraw a deferred prosecution agreement?

2. Does it make any difference if DPA is pre-plea or post-plea?

3. Is Vera entitled to a termination hearing?

Scenario 6

Client is entering drug court with a pre-plea deferredprosecution agreement. The judge routinely orders newparticipants to submit to a UA when petition to enterdrug court is accepted; participant is taken into custodyif tests positive and must complete in-patienttreatment prior to beginning drug court. Client arriveslate for court and apologizes to adversary counselbecause he had to stop and “pick up some clean pee”.

1. What should adversary counsel do?

Scenario 7

Participant has a long criminal history and should begoing to prison. The prosecutor reluctantly lets him inthe program with a plea agreement which specificallystates there will be “zero tolerance” for any violations ofthe drug court contract.

1. What does “zero tolerance” mean?

2. Who decides whether it has been violated?

3. Should this be a common practice?

4. Does such an agreement make sense under the drug court model?

Scenario 8

Johnny is set for a termination hearing. The public defenderhas been appointed to represent him at the hearing.However, Johnny has seen you in drug court as defenserepresentative asks you to represent him at the hearing.

1. Any ethical reasons not to represent him?

2. What if judge has not appointed the public defender becausetermination hearing does not involve a complex matter?

3. Does defense representative have any ethical obligations toparticipants or the team to advocate for change touncounseled termination (or probation violation) hearings?

Scenario 9

Participant in DWI Court has reached the continuingcare phase of the program and qualifies for a limiteddriving privilege. He asks the defense representativeif he can represent him.

1. Can the Defense Representative represent him in thelimited driving privilege action?

2. Is there any problem with charging a fee?

Scenario 10

The prosecutor’s office has a policy of no discoveryprior to preliminary hearing. However, all offers forpre-plea drug court (deferred prosecution) requirethe defendant to waive the preliminary hearing.

1. What ethical issues do you see for adversary counsel?

2. What ethical issues do you see for the prosecutor?

Scenario 11

The drug court judge is at the fair, meeting and greeting hisconstituents. Across the midway, she sees Annie, a drugcourt participant, with what may be a bottle of beer in hand.However, the bottle is in a koozie, making it impossible toknow at a distance.

1. Should the judge make contact with Annie to see if she can smell alcohol on her breath or better inspect the bottle?

2. Should the judge send someone else over to investigate?3. If the judge decides not to investigate, can she contact Annie’s

probation officer and suggest a UA?4. What if prosecutor sees Annie? Defense Representative?

Scenario 11 (cont)

Judge contacts probation officer and directs him torequests UA. Annie immediately admits to herprobation officer that she drank. At staffing,prosecution and probation officer request terminationin order to “protect the integrity of the program.”

1. Can the judge preside over the termination hearing?

2. If prosecutor were a witness, should he handle the termination hearing?

3. Would the “integrity of the program” be protected by termination?

Scenario 11 (cont) Additional Facts

Pre-plea/Deferred Prosecution. Annie diagnosed asbipolar/borderline personality disorder as well asopioid addiction. At time of violation, she six monthsclean. Treatment and prosecutor agree she does notneed ITC. Prosecutor wants to terminate from drugcourt, withdraw DPA, have her plead to underlyingcharge and then back into drug court as a specialcondition of probation.

1. Any arguments for defense representative at staffing?2. Any arguments for adversary counsel at termination

hearing as to why termination is unwarranted?3. What if Annie does need Institutional Treatment?

Scenario 12

• Jill in Mental Health Court (post-plea/Burglary)• Bipolar/meth addiction. Won’t take meds• Continued relapses in spite of sanctions & in-pt Tx• Per recommendations from probation & Tx, judge has

decided to send Jill to ITC as a Court-Ordered Detention Sanction.

• Jill is unrepresented at sanction hearing. She is willing to admit violations with understanding she will get treatment.

• After announcing sanction, the judge inquires as to effectiveness of counsel. (cont)

Scenario 12 (cont)

• Jill testifies that she never spoke with appointed counsel until morning of plea;

• never read discovery or had it explained to her;• Remembers telling attorney she broke into house to

steal prescription medication;• remembers attorney told her that if she went to

mental health court, she could get some help.

1. What should the judge do?2. What should the defense representative do?3. Does the prosecuting attorney have any ethical

obligations?

Scenario 13

Your drug court is supervising Bob as a courtesy for adifferent circuit. After numerous violations, atermination hearing is scheduled. Adversary counselrequests continuance for more time to prepare.Unknown to your team, adversary counsel has also fileda motion in originating court requesting drug courtparticipation be removed as a special condition ofprobation. Adversary Counsel does not disclose tooriginal judge that termination hearing has beenscheduled. For whatever reason, the motion is granted.

1. What ethical issues do you see?

Scenario 14

John, a participant, organizes an exercise “boot camp” atfitness center where he works. Boot camp is held everySaturday morning and is free to participants. During drugcourt, the judge commends John for starting the programbecause exercise is an important part of recovery. Judgerecommends all participants give boot camp a try. After afew weeks, only a few participants are showing up. Thejudge wants to show his support.

1. Can the judge order attendance at boot camp?

2. Can the judge attend the exercise sessions to show support?

3. Can the prosecuting attorney attend to show support?

Session 15

A drug court sponsors an annual alumni picnic forgraduates. Current participants are encouraged toattend with the hope that the success stories ofgraduates will encourage current participants tocontinue with recovery. There also has been somediscussion on the team that alumni could be used asmentors for current participants.

1. Can the judge attend the alumni picnic?

2. Are there any limits to her participation at the event?

Session 16

The drug court has a booth at the local county fair inorder to educate the public on the benefits ofproblem-solving courts. The booth is manned byteam members and participants. In order to provideincentives to participants, the court accepts privatedonations. The defense representative suggests adunk tank next to the booth with all funds collectedgoing into the incentives fund. Do you see anypotential problems?

1. Should the judge participate in the dunk tank? Howabout the prosecutor?

2. Should the judge even be at the booth?

Scenario 17

The treatment provider for your drug court hosts anannual dinner where it hands out an award to anoutstanding figure in the treatment community. Theywant to give this year’s award to the drug court judge.

1. Should the judge decline the award?

2. If the treatment provider asks the judge to sit on theboard of directors for the treatment center, can she?

Scenario 18

Kathy is has been doing a great job in drug court.However, a new charge has been filed in a differentjurisdiction for an offense which happened prior toher entering drug court. The judge wants to makesure the new judge knows how well Kathy is doing.

1. Can she write a letter to the judge recommending lenient treatment for Kathy?

2. Can the prosecuting attorney write a letter to the judge on the new charge?

Scenario 19

Client has failed to pay adversary counsel for legalservices. The prosecutor has made a drug court offerand expects Client to enter drug court at the next courtappearance. However, the prosecutor has not yetthreatened to withdraw the plea offer.

1. Should adversary counsel request a continuance, file a motion to withdraw or go ahead and represent client without getting paid?

Scenario 20

Participant tests positive for opiates. Participantadmits use but provides prescription as well as letterfrom doctor outlining treatment provided.

1. Is this action sanctionable?

2. Does your answer change if this is an ER visit vs Primary Care Physician?

3. Does your answer change if this is in relation to emergency, life-saving surgery?

Scenario 21

Participant tests positive for and admits to usingmeth. Participant has actively using meth for the past20 years.

1. Jail sanction or treatment response?

2. Does your answer change depending on if participant has been in the program for 2 weeks vs 2 years?

3. Does your answer change if it is a different substance (alcohol or marijuana)?

Resources

• Tolkien, J.R.R., The Hobbit; The Lord of the Rings; The Silmarillion

• Kreeft, Peter, The Philosophy of Tolkien

• Loehr, Jim, The Power of Story

• NDCI, “Ethical Considerations for Judges and Attorneys in Drug Court” (May 2001)

• NDCI, “Critical Issues for Defense Attorneys in Drug Court” (2003)

• NDCI, Drug Court Review, Volume VIII (Special Issue: Best Practices in Drug Courts), “Participation of Defense Attorneys in Drug Courts”, Michael Tobin, pp. 96-130 (2012)

• NDCI, The Drug Court Judicial Benchbook (2011)

• NADCP, Adult Drug Court Best Practice Standards, Volume 1 (2013)