Even the most conservative judges in the state endorse more public defender offices, and they've worked well in other Texas counties where they've been implemented. I'd named the expansion of new PD offices one of the top criminal justice stories in 2006, and with the help of the Texas Task Force on Indigent Defense their growth has continued since then. In other states PD offices are much more common; Harris is the largest (by population) county in the nation that doesn't have one.
The time is ripe, Ellis believes, to begin the first real push for a public defender office in Harris County. All that's needed is one judge to support it and county commissioners to fund it. But Ellis has work cut out for him.
It shouldn't be such a radical concept. Harris County is the largest urban area in the nation without one.
Even in Texas, other large counties such as Dallas, Bexar and El Paso use public defender offices. Dallas' is the oldest. It started in 1983 with eight lawyers. It now has 90.
Ellis might get less resistance from defense attorneys than he expects. A few do-gooders are selflessly, shockingly endorsing the idea. Patrick McCann, president of the Harris County Criminal Lawyers Association, the county's largest defense bar, recently took a poll and the group's attorneys came out 2-to-1 in support of some kind of public defender office.
McCann refused to tell me how many of the 370 members participated in the poll — jokingly saying "it's more than 10" — but the fact that the group's president and its most active members supported the concept sends a message.
"I think our bar has come to an understanding that the playing field is so uneven, in terms of funding and resources," says McCann.
In Harris County, indigent defendants are represented by private attorneys whom judges appoint through a rotation system or on a contract basis. Defense attorneys complain that some judges aren't fair in divvying out appointments and some refuse to pay full costs for investigators and experts. And there are no real performance standards.
McCann says Harris County has gotten used to providing indigent representation "on the cheap." While the DA's budget is around $50 million, McCann says the county spent $24 million last year on appointed counsel. "The DAs have 30 investigators on their staff, on top of all the police they've got working for them, and we've got nobody," McCann says. "Five investigators (in a public defender office) would be such a leveling thing, you can't imagine."
Ellis also expects to get opposition from judges.
"The judges are fighting it," he told the lawyer group. "And the judges have gotten a few people who look like me and a couple who speak Spanish and some decent white folks, too, to buy into it just so they can get a few little old crumbs."
The few judges I talked to took issue with that statement, saying they wouldn't likely oppose anything that improves representation for poor defendants.
"Maybe he knows something I don't know," said Kelly Smith, staff attorney for 22 district court judges. "I've never heard any of the judges make a statement against a public defender's office."
The county's head prosecutor didn't voice outright opposition, either.
"I don't have strong feelings either way," said Bert Graham, who became acting district attorney after Rosenthal resigned. But he added, "I would think whatever gives the best representation for a defendant without breaking the county's coffers is the way you ought to go."
Harris County is receiving $1.7 million from the Task Force on Indigent Defense this year, but I could not tell from their grant information online what they're using the money for. To me, that's exactly what the Indigent Defense Task Force funds are for, and if they're not going to some version of a PD program, that money should be diverted to Sen. Ellis' pilot public defender idea. There's a decent chance after November he'll easily find new judges willing to give a PD office a try, and the Harris commissioners court will surely be more receptive if the senator comes in having identified a pot of money for them to jump start the program.