Tuesday, September 23, 2008

Harris County needs an independent Public Defender office

Even as Dallas County commissioners' new caseload quotas and heightened bureaucracy gutted their Public Defender office (I learned over the weekend a 6th felony attorney turned in their resignation on top of the five mentioned earlier on Grits), in Harris County the commissioners court today will hear the details of a preliminary plan on how to create a PD office in Houston. The idea is still in the early stages and would require approval of the commissioners court to proceed. Reports the Houston Chronicle ("Harris County to review plan for public defenders office," Sept 23):

A public defenders office would represent some indigent defendants in four criminal district courts and one juvenile court under a proposal to be presented to Commissioners Court today.

Public defenders also would be assigned to some defendants with mental retardation or significant mental illnesses in the four district courts and all 15 county criminal courts under the plan crafted by the county's budget and management services office.

The plan, submitted as part of the court's annual mid-year budget review, offers a long-awaited but early look at the kind of system Harris County could adopt. A final vote is not expected until shortly before the court adopts the 2009-10 budget in March.

It remains unclear if supporters of the proposal could muster enough support on the five-member board to prevail.

The only step court members are expected to take today is authorizing further studies by a team of representatives from county and district courts, the county attorney's office, each Commissioners Court member's office, the criminal defense bar, the Texas Fair Defense Project and the Texas Task Force on Indigent Defense. ...

State Sen. Rodney Ellis deserves a lot of credit for pushing this idea in Harris County and getting the ball rolling. Generally I'm a big supporter of public defender offices. They not only save the county money on attorneys fees (thanks to economies of scale) but also help process defendants more quickly and to that extent even help with jail overcrowding. While some attorneys fear it will take money out of their pockets, that doesn't have to be the case. In Dallas about half of indigent assignments still go to private attorneys. And there's always the much-more desirable market of defendants who can pay.

Clearly, though, from Dallas' experience, part of any plan for a Harris PD should include ways to insulate the office from direct manipulation by the politicians who set their budget. With prosecutors it's easier because a District Attorney is independently elected, but nationally we see episodic problems with politicized interference by counties similar to what recently happened in Dallas. That's the crux of the concerns raised in the Chronicle story by the defense bar:

Criminal defense lawyer Tate Williams said the plan does not go far enough to eliminate the appearance of impropriety.

"If the judges get to control who gets what case, you're always going to have the allegations of bias and favoritism," Williams said.

He said he would oppose any public defender plan unless the legislature capped the number of cases each attorney could handle and required counties to provide those offices with the same money and access to resources given to prosecutors.

A 15-member Public Defense Board would oversee the whole system, setting those standards, appointing the director and approving the annual budget.

Commissioner Steve Radack said he opposes giving the Public Defense Board authority over a county department. He said the report submitted to the court raised more questions than it answered.

"If it can save the taxpayers money, that's one thing," Radack said. "If it actually provides something better than what we're providing today, we can talk about it."

County Judge Ed Emmett said he had some of the same questions. Commissioner Sylvia Garcia said the report is a step in the right direction.

I've found Commissioner Radack's comments throughout this discussion particularly interesting because he insists he'll base his decision solely on whether a PD office will save taxpayers money. Since there's literally no question at all that's the case, you'd think he'd be a supporter. However, the bigger sticking point may turn out to be whether the commissioners court is willing to cede enough control to make a PD office independent.

26 comments:

Anonymous said...

There is no real data supporting the theory that a PD Office would get better results for Defendants than the current system of appointing private attorneys to represent indigents. The studies only only talk about potential for better representation. An effective measure would be acquittals or sentence length in identically charged cases. Or granting of writs of habeas corpus for ineffective assistance of counsel. Anecdotes about sleeping lawyers and Randall Adams are decades and a fair defense act ago and not relevant to current appointed systems where applicants are screened. The only study done using a real yardstick was in Denver and showed private lawyers got better sentences than the PD office - and it was a highly criticized study. The real problem in the system are elected judges who don't care about the law and justice on the trial and appellate benches, cops who bend or break the law and aren't fair (i.e. eyewitness identification procedures) and jurors with a Dirty Harry mentality. The focus on cost over quality is misplaced. The numbers on the Dallas office are based upon the PD's there being worked well in excess of ABA standards, not paid at same level as Dallas DA's and without adequate support staff. Remember, the push for PD Offices is coming from Sharon Keller, who is no friend to the defense bar or the accused.

Frankly, the only people I've talked to in my extensive research on this issue who really think that a PD office will fix (or even be a step toward fixing what's wrong in Harris County are people who don't practice criminal law, work for a PD office, or want to. For example, only a casual observer or a charlatan really believes that a PD office will ease jail overcrowding. That's not a defense lawyer problem, that's a judge, sheriff, DA, and scheduling (speedy trial) problem. The only way a PD is going to ease jail overcrowding is by pleading people out faster - Are you kidding me - do you think that 1) that, itself, is a problem in our system for reasons apart from the jail crowding issue; and 2) that we don't already have enough guilty pleas. PD suporters claim appointed counsel are too quick to plead their clients without investigation in one breath and turn and say that's the solution to jail overcrowding the other.

Gritsforbreakfast said...

Whether PDs or private lawyers get better outcomes is up for debate and I took no position on that in this post. Whether PDs are less expensive for taxpayers is not debatable - the economies of scale make it much cheaper and there's no evidence quality of service declines.

The effects on jail overcrowding aren't from pleading out more people they're from reducing delays in appointing counsel and reduced pretrial detention thanks to representation at bail hearings.

Anonymous said...

Without an oversight board (without county commissioners sitting on it) to insulate the office from micromanaging by the commissioners, the idea of a PDs office in Harris Co.
should be a non-starter.

Anonymous said...

who was the 6th PD to resign?

Anonymous said...

That's what I was wondering. I'm having a hard time keeping up with everyone leaving.

BTW, lots of job postings for the PD's office on the county website.

Anonymous said...

The sixth felony court PD to resign is Deep Goswami, who has accepted a job with the Las Vegas District Attorney's office.

Anonymous said...

As there are so many private attorneys out there, why is it such a bad thing to assign them to cases for indignant defense. I understand that they are in business to make money, however if a predetermined fee was setup in the city for those assigned, You might see better defense for those too poor to retain an attorney on their own.

I am not saying PD's are full of bad attorney's, not in the least, but it would allow for genuinely autonomous defensive planning by the defense, without any doubt as to who really ran the show. I have always been untrusting of anything the government, whether local, state, or national, in place. It has been shown that the government always hedges their bets.

Anonymous said...

Again I say: Don't even think about a PD's office in Harris County without an oversight board between it and the Commissioners'Court.

Anonymous said...

The way bail heearings are handled in Harris County a PD at Probable Cause Court wouldn't make a difference. The PC Judge follows the "bail schedule" even if an attorney is there. There is no delay in appointing counsel here. It happens at first court date which is typically the day after arrest or the next day. Again, a little familiarity with how Harris County actually works goes a long way in this debate.

"Economies of Scale" is a buzzword phrase that supporters use and don't explain because they can't under local conditions. This comes from the IDTF Blueprint which states - "Economies of scale are expected due to the same basic economic factorsthat lead most attorneys to work in law firms rather than to operate individual offices" That's speculative nonsense unsupported by any data. Grits - I know you mean well and I agree with you most of the time, but you're just dead wrong on this. Most people in this country are skeptical of PD's with good reason. They're full of hacks who can't make it in the real world and go begging for a govt check and benefits. We can fix the current system in Harris County by taking the power to appoint away from the judges and giving it to a neutral third party. They have already gamed the 'wheel' They just keep hitting the button on the computer till the name they want comes up.

Anonymous said...

"Most people in this country are skeptical of PD's with good reason. They're full of hacks who can't make it in the real world and go begging for a govt check and benefits."

Do you apply that same reasoning to DA offices?

rage said...

Again I say: Don't even think about a PD's office in Harris County without an oversight board between it and the Commissioners'Court.

This is about as prescient a thing as has ever been posted on the internet.

The commissioners are gonna freak when they lose control of the judges this election. And even more the next.

Anonymous said...

The way we appoint attorney's for indigent defense here in Randall County TX stinks to high heavens.
To hear them tell it, attorney's are appointed from a list.It's simply a matter of who's next in line. Does it matter if that attorney does not have any expertise in case law he's defending? Yes... they are attorney's, but isn't that something like pot luck.
If I went to the emergency room and could not afford a doctor, would it be OK for a bone surgeon to perform brain surgery? Isn't that exactly what's going on in our court rooms?

Brad Lollar said...

3:53 p.m. anonymous: I can't tell you how offensive your comments are. I don't know who who you are, or what your stake in this business is, but to state that public defenders are "hacks who can't make it in the real world and are just looking for governemtn benefits" could not be further from the truth, as I know it. All of the public defenders that I knew or hired as chief public defender in Dallas County truly believed in defending citizens accused of crimes. They truly believed in doing the right thing for their clients, and they truly believed in defending the Constitution of the United States. You have insulted, without reason or evidence, all of the good people who work in the 15 public defenders offices in Texas.

Anonymous said...

Mr. Lolar, you have my apology and retraction for the unkind words - I should have prefaced and written as I meant to convey that the popular peception is.... As you well know from your own unfortunate commisioner's comments. However, you should admit that belief and dedication don't always equal success or competence. Aside from cost, is it your experience that the appointed attorneys in Dallas do a worse job than the people in your office for the indigent? How would one honestly measure that - Not Guilty Verdicts, less Ineffective Assistance Writs granted, lower sentences?

You and your colleagues who have resigned in the face of pressure (an admirable action) as well as those around the country should have some very good suggestions as to how to make sure that similar things don't happen in other TX jurisdictions as happened to you in Dallas.

Anonymous said...

I love you Brad!! Even though you are no longer with the office, you will always be one of us!! Thanks for having, and keeping our backs.

Paul B. Kennedy said...

The problem with a public defender's office is that it puts those defending indigent citizens in the pocket of the state that is trying to take away their clients' liberty.

If the PD's fight too vigorously, the state can threaten to reduce funding and increase caseloads in order to obtain more pleas.

A better solution is to use a pure wheel system and take the power to appoint out of the hands of the judges and their coordinators. Create an office of indigent defense and assign that office the task of assigning cases to private attorneys.

Paul B. Kennedy
Attorney at Law
http://kennedy-law.biz

Anonymous said...

I'm not aware of a PD's office ever being underfunded or having caseloads increased because of lawyers defending their clients too vigorously. Those things happen, but it's due to the desire to maximize savings from the use of public defenders. That's why there needs to be an oversight board between the PD's office and the commissioners.

A pure wheel system may or may not be a better solution depending on whether all the lawyers on the wheel are zealous and whether the courts adequately pay the attorneys for their efforts.

Anonymous said...

As a pd, any statements I make will I'm sure be used against me. Without an oversight committee that is not tied to comm court, the the PD offices are slaves to the court and most likely the budget office or auditor, depending on the county. Money doesn't just talk it yells and screams. Very few county leaders appear to truly care about the quality of indigent defense. Only the dollars and cents. That's it.

Anonymous said...

Well said. That's the beauty of posting anonymously...no one can hold anything against you.

Anonymous said...

Anonymous 9/26 6:02-

That's certainly the case in Dallas County where the bottom line is all that matters. Nothing else explains the lack of support staff, money for CLE, and the case assignment quotas. Okay, I get that those have been drawn back from 40 to 35 at the felony level, but are the misdemeanor attorneys still having to take on 100 new cases per month?

I think there ought to be a PD oversight board in Dallas with NO commissioners on it. Of course, the commissioners would select the members, but at least it would be something.

easrere said...

I've said it before, and I'll say it again: the Public Defender in ANY jurisdiction should be an elected position.

Anonymous said...

That would be the best solution, E.A.
I wonder what it would take to reform the present system to that end. Counties, no doubt, would object to it. I imagine that it would have a difficult time in the legislature, but if it were to pass, Gov. Goodhair could kill it for grins. I think it should be proposed regardless. Might give commissioners and county judges a wake up call.

Anonymous said...

Now, I'm curious. How does one create a new elected office in Texas? Does it require a constitutional amendment?

easrere said...

Well, I seem to have some extra time on my hands.....I'll look into it.

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