An anonymous commenter to this Grits post pointed to a situation in San Antonio that other commenters have mentioned since I began this blog, always anonymously (could be the same person, I guess), but persistently and with seeming authority. I've never had time to track it down and can't vouch for its accuracy. But if true, it's a damning indictment of Bexar County indigent defense:
In Bexar County felony appointed attorneys are routinely paid substantially more for guilty pleas than for dismissals. The payment rules are unethically contingent upon result, with an unfavorable result being rewarded.Does anybody from San Antonio have firsthand knowledge or documentation that can confirm BexarlyJustice's figures for attorneys fees? The idea that a county would pay more for pleas than dismissals implies an economic incentive NOT to pursue the defendants' rights in court - if you get the same fee for a 20 minute plea bargain or a day-long jury trial, what private attorney (who after all is a small businessperson) could consistently afford to choose the jury trial?
Bexar misdemeanor attorneys are paid 100 for a quick instant plea, or 100/day for a trial. This is the same fee they were paid in 1986, when a volume misdemeanor appointed practice was possible. Now there is one case at a time.
Many Bexar attorneys know that their role is to be a laxative for the docket.
Do other counties have similar fee structures? Let me hear from you working attorneys out there. Can anybody provide documentation of counties whose criminal defense lawyer pay structures incentivize pleas over adjudication? That would substantially diminish defendants' right to a jury trial - as a matter of practice, certainly, if not as a matter of law.
UPDATE: One of the state's leading experts on the subject, Andrea Marsh from the Texas Fair Defense Project emails with this response:
I would bet that the plea vs. dismissal disparity you discuss in Bexar is dismissals w/o trial rather than dismissal upon trial. For example, my understanding is that in Travis the flat rate for a non-trial dismissal is less than the flat rate for a guilty plea, but that if you got a dismissal at trial you’d be paid regular trial rates which are more than the plea rate.
So it’s not necessarily that the rates favor pleas over trials (though that certainly could be the case if you flip fast pleas and get paid the same as someone who really works up the case), but that judges and defense attorneys don’t see eye to eye on what goes into obtaining a dismissal. Defense attorneys will tell you that it takes them a lot more work to get the DA to agree to a dismissal than to a plea, whereas judges seem to think that dismissals occur as the result of unilateral DA case file review – the DA decides that the police didn’t send them a good case, and the low flat rate for the dismissal is sort of an inconvenience fee for the defense attorney who got appointed to the case and maybe interviewed the client but didn’t really have to do much work.
This latter view of how dismissals come about is echoed in complaints we sometimes here about the Texas Fair Defense Act requiring appointment of defense counsel “too fast,” i.e. before the DA has even decided whether to proceed, resulting in unnecessary attorney expenses in bad cases that the DA will reject anyway. The Texas Task Force on Indidgent Defense has tracked those numbers, though, and not that many cases really fall into that category. And before the FDA, when many counties did wait until the DA accepted a case before appointing counsel, defendants often spent months in jail without representation because in some counties the lag between arrest and indictment/information can be quite long (due to delays on the police or the prosecutor side of things).