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. ...Upon remand from the appellate court, Bexar County District Judge Phillip Kazin recommended that the motion be granted.
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.
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.