Tuesday, December 31, 2013

Make appellate public defender in Bexar County independent

Lately, more Texas counties have been experimenting with public defender systems - some of them rather specialized, like the Bexar County Appellate Public Defender - but apparently not everyone has worked out all the organizational kinks.

In Bexar County, the commissioners court placed the Appellate Public Defender's office under the "Judicial Services Department," a division led by a non-lawyer which also oversees the crime lab, pretrial services, the medical examiner, and several other departments. The problem with that arrangement arises when the public defender must dispute the findings of forensic experts employed in their same division. The Bexar office filed a motion to withdraw as counsel in a drug case over this issue. According to the motion:
The conflict arises from the fact that both the undersigned counsel and the forensic scientist, Robert Rodriguez, are employed by the same county department: Judicial Services. ...

Appellant recently wrote to the undersigned counsel asking him to challenge the work of the forensic scientist and assert that trial counsel was ineffective in failing to attack the veracity of the lab tests. The undersigned has reviewed the record and finds no support for an appellate challenge to the veracity of the lab tests or the work of the forensic scientist. Nevertheless, it is apparent that Appellant wishes to raise that issue on appeal. That is where the conflict lies. If the undersigned refuses to challenge the work of the forensic scientist on appeal, then Appellant may well assume that his refusal is due to a conflict of interest arising from the fact that the undersigned and the forensic scientist both work for the same county department and both ultimately answer to the same department chief, the Judicial Services Director. ...

The conflict of interest extends to all attorneys employed by the Public Defender's Office, and the entire office is disqualified from further representation of Appellant unless he waives the conflict.
Upon remand from the appellate court, Bexar County District Judge Phillip Kazin recommended that the motion be granted.

Article 26.044, Code of Criminal Procedure says a public defender's office is supposed to be "a department of a county," and Grits was always under the impression that meant it should be a stand-alone entity. I hadn't realized there were counties that stuck their PDs in the same division as the crime lab, ME's office, etc., but one can see where it presents at least the appearance of a conflict. Imagine if the Harris County Public Defender suffered the same sort of conflict when the Jonathan Salvador fiasco arose at the DPS crime lab in Houston? What a mess that would be!

The Texas Indigent Defense Commission is reviewing the situation in Bexar and may formally address it in the new year. Until then, the Bexar commissioners court should seriously consider making the public defender a stand-alone entity, as this issue is likely to recur. Better to fix it now while the scope of the problem remains narrow than to wait for the sort of mess they're dealing with in Houston when the conflict could affect a small avalanche of cases.


amoorelaw@AOL.com said...

As the Chief of this unit for almost seven years, I resigned from my position in May 2011, due to interference from other county entities especially NONLAWYER "supervisors" who kept telling me how to represent my clients. Namely, the County Manager, then Budget Director, and what I must do or "we just won't have a public defender's office." The Commission on Indigent Defense granted Bexar County over half a million dollars to get this office off the ground, and we worked diligently and were considered a model for the State. Once the task force, now commission, was not imtimately involved, and my supervisor became a retired judge who wished to sit visiting over our mental health cases, and imposed this edict on me, I chose to resign rather than sacrifice my clients rights and my own bar card which I have held without a blemish for 26 years. The 6th Amendment and Texas statutes need to be enforced. Saving money by the Commissioners is not a good enough reason to ignore the law.

Gritsforbreakfast said...

Angela, I understand there's a Policies and Standards Committee meeting of the Texas Indigent Defense Commission at 9 a.m. on Friday January 24th that will address these conflict issues in Bexar. The meeting will be held in the Tom C. Clark Building, 6th Floor Conference Room, 205 West 14th Street. Maybe you ought to contact the commission about your concerns before then or even try to attend. Sounds like the issues run deeper than just these latest ones.