Delaware's chief defender committed to fair treatment for all

By Craig Anderson
Posted 7/29/21

WILMINGTON — As Delaware’s court system inches toward some sense of pre-COVID-19 normalcy, there’s a tremendous amount of backlogged cases to clear.

For defendants accused of …

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Delaware's chief defender committed to fair treatment for all

Posted

WILMINGTON — As Delaware’s court system inches toward some sense of pre-COVID-19 normalcy, there’s a tremendous amount of backlogged cases to clear.

For defendants accused of crimes and offenses, the sooner the better.

Enter Kevin O’Connell, who was sworn in as the new chief defender of the Delaware Office of Defense Services on June 2. He said the ODS staff is committed to protecting the rights of those facing charges and potential jail time who can’t afford an attorney. All juveniles with criminal counts filed against them are his office’s responsibility, as well.

“The big trend right now is just trying to get our clients heard, get them resolved, whether it’s by a jury trial, a bench trial or a guilty plea of some sort, in a timely fashion, so that justice is not delayed. That’s the biggest challenge, I think, on our plate,” he said.

Plenty of high-volume workloads will continue in the coming months, Mr. O’Connell said, but they will inevitably lessen at some point.

“[W]hen we start up these blitzes as they were, when the courts get started, the Superior Court thinks it’s the only court in the world, the Court of Common Pleas thinks it’s the only court in the world, and they all want to schedule and get rid of their backlogs and eliminate the huge dockets that they have,” Mr. O’Connell said.

“The sky is not going to fall, I want to tell our lawyers. Maintain contact with your clients, keep your cases prepared and, generally speaking, blitzes like these are harder on the state than our side, and we’ll get through this.”

Have faith in court-appointed defense attorneys, Mr. O’Connell urged clients.

“I think that the Public Defender’s Office is the best law office in Delaware, and that’s one of those trite phrases that people say, but we’ve got 80 lawyers, close to 200 staff members. We are approaching the defense of people accused of committing crimes holistically and as a team.

“You can’t get better representation that we can offer you here. We want people to trust their lawyers, so that we can do our job more effectively, and we can get better results for people.”

ODS includes the Public Defender’s Office, the Office of Conflicts Counsel and Central Administration.

According to Mr. O’Connell, “We are going to continue to fight like hell to have people who should not be sitting in jail and waiting for their cases to be resolved to be released.

“That is much more of a challenge now than it was a month ago, and we’re going to do what we can to not have people sitting in jail.”

ODS strongly opposed the recently enacted Senate Substitute 1 for Senate Bill 7, which Mr. O’Connell said, “creates the presumption of high-cash bail at an individual’s initial bail appearance when the person faces certain offenses. The legislation further exacerbates the racial and wealth disparities that already permeate Delaware’s criminal justice system.”

“Under this legislation, individuals with the means to secure release pretrial still can. However, those who have the least resources, predominantly our clients, will remain locked up pending the resolution of their charges. This will have a significant impact on our practice and is incredibly damaging for our clients, who at the time of their bail hearings are presumed innocent.”

Mr. O’Connell said he thinks this is regressive for the state’s criminal justice system.

“This legislation is a step backwards from previous efforts to move away from cash bail, and it will increase pretrial prison populations.” He continued, “A person’s bail should not be determined solely by the offense charged against him/her. No one should be judged solely on the basis of the name of the offense that they were charged with committing. Rather, the totality of the circumstances, including, among other things, the facts of the case, the resources of the accused and the history of the offender, must be considered in setting bail.”

Mr. O’Connell added that everyone accused of a crime deserves similar treatment regarding bail.

“Determining the totality of the circumstances requires a process that affords every charged person with procedural due process. In light of the importance of a court’s bail decision, there must be a robust and meaningful process to reach before a court decides on bail.”

The chief defender has surmised that, “There’s a ton of information available that shows just how detrimental it is to a person’s life to spend as little as three days in jail. ... It has a criminogenic effect, it has an effect on their ability to hold a job, to maintain housing, to maintain a family, and all of those things are very difficult to face.”

Thanks to systemic adjustments to access made during the pandemic, public defense attorneys are less likely to meet their clients within prison walls now. However, that hasn’t come at the cost of high-quality representation, Mr. O’Connell said.

“One of the silver linings to all this has been that, despite the fact that we’re not going back to the prisons (as frequently), the footprint we have with respect to videophone with our clients has grown (immensely),” he said.

“So our lawyer can be sitting at their kitchen table and meeting with their clients if they’re incarcerated, and that’s a positive.

“I’m a firm believer in meeting in person with people. I’m old-school, but it really is a good thing knowing that you can schedule a meeting, put on a Zoom call, and there your client is sitting right across from you, and you can have a half-hour conversation, an hour conversation, with them.”

There’s further work to be done on criminal justice reform, Mr. O’Connell said.

“I tend to be a silver-lining person, I really do,” Mr. O’Connell said. “I’ve always seen the best in people, the best in situations. I have a level of disappointment coming out of the latest legislative session. I felt that, a year ago, there was a tremendous amount of momentum for criminal justice reform, and I felt like a lot of that got stalled, and that was disappointing.

“There were some successes in the General Assembly this year. There were some failures, and there were some things that just didn’t get done, and we’d like to see those issues stay on the front burner as far as our legislators are concerned and not to forget the way they felt a year ago.”

Creating greater police accountability through revisions to the Law-Enforcement Officers’ Bill of Rights is a must, he said.

“Right now, I feel like the direction that the LEOBOR legislation is headed is a watered-down version that will not provide the public with the transparency that it needs,” Mr. O’Connell said.

While there were legislative successes, he added, “I think we need to keep that momentum going and to that end, Lisa Minutola (and) Jon Offredo, along with other members of our office, have been working diligently, and I think we want to create a bigger footprint in the legislature, making sure our clients’ voices are being heard.

“They’re not a constituency that’s often heard in the General Assembly, but I think that there is a progressive group of legislators who are making sure that we’re heard.”

On the positive side, according to Mr. O’Connell, legislation eliminated the Youthful Criminal Offender Program that housed juveniles aged 16-18 within the Delaware Department of Correction if convicted and sentenced in Superior Court.

Now, youths under age 18 will be held in the custody of the Division of Youth Rehabilitative Services. The bill takes effect Jan. 1.

“We know from our practice that an adult prison facility is no place for youth,” Mr. O’Connell said.

“Past research has shown that imprisoning youth in adult facilities has some very harmful effects, including an increased risk of recidivism. Youth need to be held accountable for their actions, but treating them as miniature adults is not the way.”

Mr. O’Connell replaced Brendan O’Neill, who retired May 31. Mr. O’Neill had been first appointed by former Gov. Jack Markell in 2009.

Mr. O’Connell joined ODS in 2005 and served as head of the New Castle County division and led the office’s Superior Court Unit. He graduated from Vanderbilt University and Widener University Delaware Law School and is a Fellow of the American College of Trial Lawyers and a founding member of the Delaware Association of Criminal Defense Lawyers.

He served as a private-practice attorney, as well, and has more than 30 years of representing indigent criminal clients, his office said. He is Delaware’s fourth chief defender.

Said Mr. O’Neill at the time of Mr. O’Connell’s nomination, “Kevin is the epitome of a public defender.

“He has been in the trenches advocating for clients in the courtroom but also as an administrative leader, providing a keen listening ear to ensure the staff of the ODS are supported in their day-to-day lives. I know the office will be in talented and capable hands. I’m excited to see the future of the Office of Defense Services for not just our staff but also our clients.”

Touting Mr. O’Connell when announcing his nomination and prior to the Senate’s confirmation, Gov. John Carney said, “Kevin has the experience, character and commitment to justice for all Delawareans that is so critical for a public defender.

“I’m confident he will be a strong leader of the Office of Defense Services and continue to provide important legal services for those who need it most.”