Wednesday, January 18, 2006

Are Bexar judges thwarting jail overcrowding solutions?

Reacting to this Grits post about the overincarceration crisis at the Bexar County jail, Lucius Cincinnatus at the Jeffersonian asks, "And why don't we have a public defender's office here in Bexar County?"

Good question. The answer is because Bexar judges and county commissioners court can't agree, but County Judge Nelson Wolff wants to go in that direction, at least according to a couple of clips forwarded to me on the topic by San Antonio Express News writer Elizabeth Allen.


It turns out Bexar County last year did establish an appellate public defenders office using state grants, but the new agency doesn't handle indigent cases on the front end, which would better serve to reduce jail overcrowding and help more people. Bexar's appellate PD began over the summer. (SA Express News, 7-19-05)


Before Bexar expands to a full-blown PDs office, though, local officials will have to quit squabbling. Reported Allen in the San Antonio Express News (5-22-05), "commissioners and district judges [were] locked in a dispute over who will control a new office for public defenders."

Bottom line: Bexar judges appear not to want the county commissioners court to run an independent public defenders office. Under the terms of a state grant, the money is distributed to a committee made up of three judges, a lawyer, and three county commissioners representatives. Commissioners wanted to appoint an agency head to run the show, while a judge on the committee opined, "I don't know that they need day-to-day supervision by anyone."

This is a turf war: Without a PDs office,
individual trial judges make decisions about indigent defense appointments, including pay, so their recalcitrance likely stems from not wanting to lose control. The dispute caused the whole process to stall, leading to the decision to only create an appellate PD agency. "I'd rather not have the program than make this a contentious thing between us and the judges'' said Commissioner Paul Elizondo last year, accepting half a loaf.

That aversion to contentiousness may be receding, though, as frustration mounts over the continuing overincarceration crisis at the Bexar County jail. Commissioners obviously blame the judges. Precinct 4 Commissioner Tommy Adkisson recently declared: "It's early in the budget year but this is getting real old ... T
here's going to be some warfare at the old Bexar County Courthouse if there's not some changes in attitudes."

For their part, Bexar district judges claimed they were "blindsided" by commissioners' anger, but given the background feuding over the PD's office that seems disingenuous. It looks to me like Bexar judges have been thwarting jail overcrowding solutions for quite a while.

UPDATE: Be sure to read career public defender Carol Huneke's arguments in the comments for keeping PD offices independent of both judges AND the commissioners court. (Carol
and I went to school together. She's a Texan who practices law now at a PDs office in Washington state.) Carol makes a strong case:
There are a lot of reasons why independence is crucial, but it boils down to: You don't want the head of a public defenders office who feels like he or she has to please judges or commissioners. Public defenders have to stand up to judges all the time. I can't tell you the number of times that I've been threatened with jail for merely zealously representing my clients. If judges are in control, they will keep the most obsequious lawyers, not the best ones. If commissioners are in control, they will seek the lawyers who will cost the least, not who will do the best job.
Well said. She points to an instance in Grant County, WA last year where an unsupervised, high-volume, low-quality, judge-controlled indigent defense system caused innocent people to be convicted. The ACLU sued and a Washington judge declared the county's system deficient. "Maybe Bexar County can learn from Grant County's mistakes," she desiderates. Let's hope.

5 comments:

Carol Huneke said...

As a career public defender in Washington State (but I'm from Texas!) this is a topic near and dear to my heart.

First, for a public defender's office to truly work, it must be absolutely independent from control by county commissioners or judges. But hey, I'm not the only one to think this. In 2002, the ABA passed "THE TEN PRINCIPLES OF A PUBLIC DEFENSE DELIVERY SYSTEM." And what was the very first principle? "1. The public defense function, including the selection, funding, and payment of defense counsel, is independent."

There are a lot of reasons why independence is crucial, but it boils down to: You don't want the head of a public defenders office who feels like he or she has to please judges or commissioners. Public defenders have to stand up to judges all the time. I can't tell you the number of times that I've been threatened with jail for merely zealously representing my clients. If judges are in control, they will keep the most obsequious lawyers, not the best ones. If commissioners are in control, they will seek the lawyers who will cost the least, not who will do the best job.

I will offer the story of what happened in Grant County Washington as a cautionary tale. Grant county paid a pittance to its public defenders for years--defendants were not adequately represented, innocent people were convicted. Please read the Seattle-Times series that exposed this travesty here: http://seattletimes.nwsource.com/news/local/unequaldefense/stories/two/. The ACLU ended up filing a lawsuit against the county, which recently settled with a new public defender structure in Grant County. See: http://www.aclu.org/rightsofthepoor/gen/21177prs20051020.html.

Maybe Bexar County can learn from Grant County's mistakes.

Anonymous said...

This is off topic, but I've been wanting to rant to a sympathetic ear all day.

Texas mental health hospitals are in crisis, and the county jails are backing up because of it.

A judge ordered the Sheriff of Bastrop County to deliver my client to the Austin State Hospital for treatment to attempt to attain competency to stand trial. The kid is schizophrenic, in county jail, with jailers alternatively sending him into the pods where the kid is beaten, then into isolation where the kid is suicidal. No meds. No training for dealing with schizophrenic inmates.

The sheriff had 72 hours to deliver the kid to the hospital. He didn't. The sheriff has said, since the 72 hours elapsed, 1) he'll be transported tomorrow, 2) we can't transport him until they allow new 46b intake, 3) we haven't seen an order like that.

Today I was informed by someone from the Texas Dept. of HHS that ASH will not take anymore criminal incompetents due to funding cuts. Further, none of the state's hospitals are accepting these inmates. There are hundreds of them, all over the state, many in jail for trifling offenses.

The lawyer for the dept. said that there is a present crisis, and that it's going to get much worse. Imagine being in jail and schizophrenic, needing treatment. Instead of treatment you get beaten up, isolated, and held for longer than a plea deal would have lasted. But you can't plea. Because you are incompetent.

Texas Lawyer said...

Elected Bexar criminal judges have to run costly campaigns to keep their jobs.

Any cursory statistical analysis of the campaign contributions made to any elected criminal judge will irrefutably demonstrate that a very significant positive corellation exists between campaign contributions and court appointments.

Specifically, the vast majority of any criminal judge's campaign funds come from lawyers that the judge appoints to cases, at county expense.

SB 7's assignment system already took a big bite out of judges' power to award these government contracts to their campaign supporters; a PD office would evaporate that power.

The press doesn't care about such issues, but if they did it would be dead easy to get the judges' canpaign contributor list, and "top twenty" appointed attorney list, and compare the undeniable relationship.

On another topic, Bexar's official written policy on felonies is to penalize appointed attorneys for dismissals, and to reward quick uncontested guilty pleas.

The fee arrangement is a reverse illegal contingency fee in a criminal case. An appointed attorney is permitted to bill the county a more lucrative "fixed fee" contingent upon a guilty plea, but not permitted for any dismissal. Many appointed attorneys shade the advice to the indigent client in an effort to secure the quick plea and quick fee.

By example, a first appearance dismissal on a felony might pay as little as seventy-five dollars, whereas a first appearance guilty plea can pay as much as eight hundred fifty dollars; and it's far easier to talk a client into a plea deal than to talk a prosecutor into a dismissal.

Additionally, lawyers who do not clog a judge's docket by fighing cases are more likely to be rewarded by further appointments.

Bexar has paid appointed counsel on misdemeanor cases the same $100.00 fee per case since 1984, more than twenty years; and twenty years ago it was not uncommon for attorneys to handle more than one case at a time. Now, it is only one case at a time, and some judges are actually undercutting and low-bidding that $100.00.

As the previous poster said, appointing and low-bidding each yeild the needs of justice to the ends of economics or electoral politics.

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