Friday, June 13, 2008

Rothgery v. John Wiley Price: Move to slash Dallas public defender budget couldn't come at worse time

In the wake of Dallas County Commissioner John Wiley Price's high-profile putsch at the county's public defender office, many in Big D are taking seriously Price's threat to fire large numbers of lawyers, slash the PD office budget, or even eliminate it entirely.

His timing couldn't be worse.

Sometime soon the US Supreme Court will issue its opinion in Rothgery v. Gillespie County, a Texas case about which oral arguments were heard in March. At issue: Whether the right to counsel attaches at the bail hearing or only upon indictment, as is currently the case?

According to briefs before the court (see the Rothgery SCOTUSWiki page), 45 of 50 states already attach the right to counsel at the earlier stage in the process, but not Texas. A majority of justices during oral arguments, led by Justice Kennedy, appeared sympathetic to the plaintiff and inclined to overturn the 5th Circuit (which is becoming sort of a hobby for SCOTUS).

If Mr. Rothgery prevails - and the decision could be released at any time - then the right to counsel will attach sooner in the process than in the past, increasing the county's cost for lawyers and requiring more attorneys to be appointed earlier. But if the timing of the change coincides with a reduction of public defenders in Dallas, Price's putsch will create more docket delays, more unnecessary incarceration, and greater cost for the county while courts go through the process of hiring private attorneys sooner.

Commissioner Price proposed PD Office cuts hoping to stave off a tax increase, but depending on how SCOTUS decides the Rothgery case, cutting their budget right now could have unintended but entirely foreseeable consequences that balloon the county indigent defense budget instead of deflate it.

RELATED: Dallas public defender saves county money compared to neighbors.

15 comments:

rage said...

Yeah John Wiley Price he's our man,
He can't heal the sick with the touch of his hand,
He can't walk on water, can't make wine flow;
Just another greedy commissioner on the late late show!



It's what I think of every time I see his name.

Is it just me?

Anonymous said...

I'm not sure indigent defense costs will increase much if Rothgery, as expected, wins his case. Appointments sooner in the process does not necessarily mean higher costs, b/c most indigent defense rates are flat fees per representation, anyway. GB

Anonymous said...

exMaybe JWP's position is based on the defense bar and their political contributions. Money is, after all, the root of all evil, ain't it?

Plato

Gritsforbreakfast said...

Re the comment that: "Appointments sooner in the process does not necessarily mean higher costs"

I think it does because a) appointment costs are higher per case than PDs anyway (see the next post), b) IMO more appoinmtents will occur because some cases would have been dropped, pled, etc., and c) lawyers will pressure to get paid for the extra work.

Anonymous said...

I agree with GB that costs will not necessarily increase because of Rothgery. Attorneys will do some of their pretrial work earlier, but that doesn't mean they will have "extra"/more work. And Grits, as you previously discussed when the case was argued (but I don't know how to link to it), very few cases actually are dropped prior to indictment so I think the potential increase in appointments is seriously overstated.

Of course, all of that is completely separate from the fact that private appointed lawyers do and will cost Dallas Co more than PDs, however Rothgery comes out. AM

Anonymous said...

Right to counsel under SB7 attaches well prior to indictment. They have to get magistrated within 24-48 hrs and get appointed counsel then if they are indigent. You're confusing SB7 right to counsel with the 6th Amendment right to counsel.

Gritsforbreakfast said...

"They have to get magistrated within 24-48 hrs and get appointed counsel then if they are indigent."

Nope, I think this is incorrect, at least according to the oral arguments before SCOTUS in March. The state argued and the 5th Circuit agreed that the magistration hearing didn't get you counsel appointed because there was no prosecutor involved yet, just the cop and the judge. That's the entire basis of the controversy. See the summary of oral arguments and the briefs at the SCOTUSWiki to see why that's my impression.

Anonymous said...

Rothgery is a 6th Amendment case. Under the FDA, everyone has to be magistrated within 24-48 hours, and defendants who remain in jail receive counsel shortly after that. Defendants who post bond, however, don't receive counsel until "adversarial judicial proceedings" are initiated or first appearance, whichever comes first. Which circles back around to the 6th amendment issue of when adversary judicial proceedings attach. Rothgery was released on bond.

Gritsforbreakfast said...

Gotcha, thanks for the clarification. I'm not an attorney, of course, so I appreciate more knowledgeable voices offering corrections.

In any event, if Rothgery prevails and Texas counties must begin hiring attorneys after the D is let out on bond instead of upon indictment, that's still bringing the lawyer into the game earlier in the process and IMO likely will increase indigent defense costs, at least on the margins. To the extent per-case costs rise in Dallas because they shift away from using the PD, it multiplies the economic damage, however great or small.

Anonymous said...

Can't wait to see the counties scream about the Supreme Court's "unfunded mandate."

rage said...

Can't wait to see the counties scream about the Supreme Court's "unfunded mandate."

Upholding a right isn't quite the same as making them create a bureaucracy without funding it.

Anonymous said...

Rage,

Explain that to the counties, who think they're supposed to be left alone.

rage said...

Explain that to the counties, who think they're supposed to be left alone.

Okay.


Dear Counties who think they are supposed to be left alone:

When the supreme court tells you that you have to provide counsel at an earlier stage in the legal process than you currently do, it is not the same as an unfundate mandate where they tell you to create some bureaucracy or you will lose funds, but do not themselves provide the funds for that mandate.

As always, should you have any questions whatsoever, please do not hesiate to call.

Very truly yours,



Rage Judicata



How's that?

By the way, Alabama thought it should have been left alone when it refused admission of blacks to state schools. Was equal protection, etc., an unfunded mandate?



And on another note, am I the ONLY Dead Milkmen fan here?

Anonymous said...

Dead Milkmen? Oh, I must be showing my age.

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