Monday, October 18, 2010

State's first regional public defender shut down following DA opposition

Somehow I'd missed this item from the San Antonio Express News ("Indigent often left in legal limbo," 10/10/10) documenting the little-discussed demise of Texas' first regional public defender office, formerly based in Del Rio, despite seven-figure cost savings and success reducing the jail population. Here's the portion of the story describing the PD office's downfall:
The program was derailed in January 2009 when Fred Hernandez, the county’s district attorney, shut his files on criminal defendants to the public defenders. Melissa Hagen, a native of Ohio who joined the office in 2008 as its chief public defender, was dismayed at Hernandez’s policy.

“I sort of laughed and said, ‘You’re kidding, right?’ ” Hagen said. “And he said, ‘No, I’m not.’ ”
Hernandez left the same files open to other lawyers in the region, private attorney David Ortiz confirmed.

The National Right to Counsel Committee recommends prosecutors adopt open-file discovery policies. Yet the state yields control of indigent defense practices to counties, leaving discovery policies up to prosecutors.
Elected judges in Texas also possess the sole power to appoint attorneys and approve their payments, influence that some say can confound the American Bar Association’s first principle of indigent defense — independence.

Wesley Shackelford, special counsel to the task force, conceded that the state’s system of local control can stymie national standards.

Texas’ “statutory scheme doesn’t really allow for the level of independence that I think is envisioned by the American Bar Association standards,” he said. Unable to access clients’ files, TRLA attorneys watched their cases begin to clog the courts’ dockets as local judges appointed fewer cases to them.

County commissioners eventually disregarded about $68,000 in state funds that would have helped to keep the program running, said Bryan Wilson, grants administrator for the task force.

No county officials — the county judge, district attorney, assistant county attorney or county commissioners — would talk about ending the program to a reporter who traveled to Del Rio.

But task force data chronicle its demise: Judges appointed 60 percent of felonies and 73 percent of misdemeanors to public defenders in 2007. In 2009, the numbers dropped to 37 percent of felonies and 40 percent of misdemeanors. ...

Despite a bitter fight waged by local advocates, the county’s contract with TRLA lapsed in September 2009. The nonprofit agency remains in the region to complete its residual cases, but Hagen’s last day was Oct. 1. She’s moving to Nevada.
This article appears to be breaking the news for the first time about the demise of Texas' first regional public defender, much less the role of the local DA in shutting down the office's access to defendants' case files. It's fairly stunning that local officials won't talk to journalists about closing the office, much less that nobody's seemingly reported on it before now. A search of the archives at the Del Rio News Herald finds no mention of the story.


Sam said...

I will bet you a buck that some local criminal defense attorneys were pushing for this to happen behind the scene.

doran said...

The two extremes of appointed attorneys for criminal defendants are, on the one hand, the attorneys who NEVER take an appointed case to a jury trial and ALWAYS talk their client into accepting the prosecution's plea bargain, and, on the other hand, the attorneys who take EVERY appointed case to a jury trial.

Prosecutors tend to really love those attorneys in the first group. They make life so easy for District and County attorneys, particularly in counties where those offices are under-funded and under-staffed. Sad to say, these pleaders also enjoy the approval of too many judges.

Attorneys in the second group are disliked (professionally and maybe personally), if not despised by prosecutors and judges. They will soon find themselves not getting appointed to represent indigent criminal defendants.

Somewhere in between these two groups are what I suspect is the large majority of attorneys who are appointed for indigent defendants. They tend to convince their clients to plead when the offer is better than or at least equal to what will probably happen if the case goes to trial. They will take cases to trial if there is (1) a demand by their clients and/or (2) a reasonable chance of convincing a jury that the State has not proven guilt beyond a reasonable doubt. Sometimes they win, sometimes they lose.

The closer an attorney gets to being in the second group of attorneys, the more his or her reputation among judges and prosecutors declines as someone who is "reasonable." Pretty soon: No more appointed cases.

Some attorneys find a silver lining in the exclusion process. They don't want to be appointed to represent people accused of child abuse, for instance, so they take all the child abuse cases to trial that they can. Yep. The judges, at the behest of the D.A.'s office, stop appointing them to represent defendants in those kinds of cases. They are happy, the judges are happy, and the prosecutors are happy.

It worked for me.

Anonymous said...

Whoever invented the terminology “non-profit” must have passed those genes on to those who came up with “jobless recovery” and “jobs saved or created.” Non-profit for taxpayers maybe, but there’s plenty of profit flowing for those who set these things up.

Anonymous said...

Doran, so what you are saying is that you put your own personal agenda ahead of the best interests of your client?

doran said...

Nope, 11:20, what I'm saying is that I worked my ass off on a number of appointed cases, by taking them to trial because my clients wanted jury trials, either because my clients did not want to accept the not too bad plea bargain offers of the State, or because the plea bargain offers were totally unreasonable and a jury trial offered an acceptable alternative to pleading. This is not putting my personal agenda ahead of my clients' best interests.

What happened was that the D.A. got tired of having to actually try my clients before juries, and some of the judges got tired of my winning some of those trials.

At one point, an assistant D.A. asked a judge NOT to appoint me to anymore child abuse cases. The ADA was clearly of the opinion that I should be arm twisting my clients into accepting more of his bogus offers.

Anonymous said...

Doran, thank you for clearing that up.