Wednesday, February 06, 2019

Ignore Austin defense bar: Create Travis County public-defender office

Like petulant children, the Austin criminal defense bar pulled out of a working group created by Travis County to plan for creation of a public-defender office. I've uploaded their letter here.

Continuing the whine-fest they began last fall, ACDLA complains that the county isn't properly considering whether to increase funding for their sorry, failed, embarrassing "managed-assigned counsel" system, in which the local criminal-defense bar was supposed to regulate itself. Feeling snubbed, they're taking their toys and going home.

When Austin's managed-assigned counsel system was created, attentive readers may recall, Grits opposed it and thought the county should have funded a public defender instead. Now, they definitely should.

One of the difficulties criminal-justice reformers face, at least in Texas, is that the criminal-defense bar, for the most part, is not a reform supportive group. Individuals, maybe, but not their organizations. Whereas the state prosecutor association's political stances derive from their interests in court, promoting tough-on-crime policies that empower the government, criminal-defense lawyers typically do NOT promote legislation and polices to benefit their clients. They are trade associations made up mostly of sole proprietorships, and their main interests are commercial interests.

Thus, Texas criminal defense lawyers tend to oppose public defenders at any level. Last session, the biggest organizing effort by the state criminal defense bar was to oppose a tiny public-defender office for capital appeals, even though there's vast evidence the private bar has consistently failed at the job in these complex and highly specialized cases.

Disingenuously, ACDLA claims it's some big problem that a Travis County public-defender office would only take 30 percent of indigent cases. (As though PD offices in other Texas counties don't take on part but not all of indigent caseloads.) They insist a new office should take all cases, or none at all.

That's a strategic position, of course, not their actual view. They oppose creation of a public-defender office of any type. Full stop. But they know that the only proposal on the table is for a PD to take a third of the cases. Ironically, that's mainly in deference to the local criminal-defense bar, who do not deserve it.

Now, the Travis County Commissioners Court should take ACDLA at their word, eliminate appointed counsel entirely, and fully fund a public-defender office, using appointed counsel only for conflicts and other minor roles.

The local defense bar had their chance. They proposed the managed-assigned counsel system in the first place as an alternative to a public-defender proposal, and now everyone but them can see that it failed miserably. The lawyers were better off, but the clients were worse off. And the purpose of indigent-defense services is to represent the interests of the clients, not the lawyers.

10 comments:

Drew Willey said...

Unfortunately groups like this claim self-interest often openly, even though their only binding force is supposed to derive from client-interests first. When grouped together, they "forget" that.

Conflict cases could be handled by holistic non-profits, whose independence allows for creative ideas to move indigent defense forward, like partnering with counseling organizations. Restoring Justice (restoringjustice.org) is beginning to do that in Houston.

Amber V said...

You got it wrong on this one, I have been involved on all sides of the process. The only disingenuousness happening is the workgroup itself- and that is coming directly from people I know on the group. The defense bar is demanding a real and powerful public defender and hourly pay for assigned counsel. After consulting with other PDs offices around the state and elsewhere, it simply makes more sense to start a PDs office in Travis County focused on first degree felonies. It would recruit top trial talent and garner resources for investigators and other experts a strong PDs office would need. We have a culture problem in Travis County, having a strong defense is not seen as desirable because it is inefficient. Starting a PDs at the top and expanding makes the most sense to every practitioner here. That is the OPPOSITE of what the county judge is pushing with the work group. The county judge’s plan reflects what community activists want, which while good hearted, would not be effective for a variety of systemic reasons. They want to focus on misdemeanors- but having taken on the bullshit systemic problems involved I can say first hand it won’t do what they think it will do. As a defense attorney that has dedicated myself to criminal justice reform in my town I am appalled by the actions of the workgroup to discredit and shame anyone that disagrees with the county judge’s plan. The last community “listening session” involved members of the workgroup reading letters from defendants in jail with active cases distorting facts, waiving these poor people’s constitutional rights and recklessly trying to embarrass and shame lawyers. After researching some of the cases it is quite obvious that they grossly distorted many of the facts in an effort to push this crappy weak version of a PDs office. This is why we can’t have nice things

Gritsforbreakfast said...

"The defense bar is demanding a real and powerful public defender"

That's a laughable statement, sorry Amber. The Austin defense bar shamed ITSELF with the managed assigned counsel program. The fact that you can't listen to the stories of people who've been stranded in jail and subject to crappy lawyering says a lot. You're offended you should even be asked to hear it. But I'm offended those CLIENTS were subjected to such treatment.

DLW said...

Without question, there are Lawyers who do a substandard job and there are Citizens trapped in the jail. But it isn't fair to believe that every Defendant complaining about his Lawyer is telling the whole truth or even the truth. There is a culture that has been created that causes people who are victims of the system to believe that the way out is to complain loudly about their representation. Complaining about the mean old DA won't get them anywhere and with the GAWF on the appellate courts, even legitimate complaints about the Judge or the fairness of the trial doesn't work often. So it must be the Lawyer's fault even when it is not.

The trick is determining who has a real complaint and who just wants to try for a get out of jail free card gained by complaining about their Lawyer.

Amber V said...

Wow!! You have gotten some bad information and are spreading it far and wide! The defense bar researched PDs offices across the country and worked with the national defense organization to propose a strong, effective and equal PD in Travis County- the eventual total price tag was about 33 million. It’s in writing. How is that laughable or am I missing something? We have contacted PDs around the country for input- that is why THE ENTIRE DEFENSE BAR and everyone who actually practices defense here was excluded from the workgroup. Travis County wants a much cheaper and weaker version. That is a fact. I have all of the data that was presented and can guide you to the commissioners meetings where we have begged for better funding for indigent representation. The county judge created a workgroup comprised all of people that had never actually handled a serious criminal case in the courthouse. That is because those of us that do know that our problems are deeply systemic and the current weak proposal is not a solution. Defense attorneys had to convince the commissioners to let them have a voice, it seemed like that would be a good idea. It became evident very quickly that the community groups had their own distinct agendas and a plan that did not purport with reality. I respect you but to be fair you have not been a part of this discussion here in Travis and you are getting your information from the disgruntled crazies on the work group. The only lawyers on the group are gunning to either be the PD or be in leadership- there is WAY too much self interest going on.

Now to address the lies and shaming. My colleagues and I care deeply about defendants in jail here, and have been actually trying to get effective change. An example of the misinformation- one letter read was from a man claiming his crappy lawyer, who he named, refused to get him out of jail on a burglary of a habitation where his license actually matched the address. The truth was that he broke in his childhood home (which was on his license) to kill his mother by lighting her on fire. In spite of that, his lawyer had attempted to get him out but the judge refused. Nobody shamed the judge, just slandered the attorney that had fought for him but didn’t get him the result he wanted. Reading that letter in a televised public forum was complete bullshit. I’m sorry that Trudy, Katy or Amanda have given you such a one-sided and skewed perspective. They have good intentions but have lost sight of the forest for the trees.

Anonymous said...

I was at the community meeting. After two hours of hearing story after story about hurt, and pain, and trauma caused by the system, you would think it would be a wake-up call for the defense bar. Instead, Austin defense attorneys bowed out of the process. God forbid we give a platform to the most disenfranchised and allow the community to speak uncensored. What about the poor lawyers?! Will someone please think of the lawyers?! Give me a fucking break.

dahowa said...

I've read numerous horror stories about indigent defense and they usually center around PD offices who are grossly underpaid and understaffed, which is what I think inevitably would happen with a PD in Travis County. I work up the road in Williamson County where most defense lawyers sign up to take on indigent cases. You reapply every year and the judges decide who is on what list. The A list for 1st and 2nd degree felonies, the B list for 3rd degree and SJ felonies, and the misdemeanor list. I'm a sole practitioner and stick to the B list and the misdemeanor list. I feel that it works very well. We're all private attorneys and most of us really don't pay any attention to whether a case is appointed or retained, we just treat them as clients, period.

The Williams Law Firm said...

While a properly funded public defenders system is clearly a gold standard, our county spends roughly 12 to 15 million on indigent defense. The District Attorney's budget is approximately 25 million and the County Attorney's budget is 22.5. Clearly we all share a common goal of adequate funding for indigent defense, but poor funding equates a crappy public defender. The result is that we need to determine how to best use our very small budget to accomplish the best representation for indigent defendants. The pitting of public defender advocates against members of the private bar is simply an illusion being used to perpetuate underfunding. Don't be mislead!

Chris P. said...

I'd be happy to discuss how the TIDC proposal would cripple indigent defense in Travis County. The bottom line is that the current proposal would lead to an underfunded PD's office, unless the commissioner's court is willing to increase funding for indigent defense. An underfunded PD's office is the worst possible situation because it results in fewer attorneys representing the indigent defense population (here's a recent New York Times article that illuminates this issue: https://www.nytimes.com/interactive/2019/01/31/us/public-defender-case-loads.html). A PD is not a panacea for indigent defense. It has to be fully funded.

I'm a local Austin criminal defense attorney who supports a fully-funded PD's office in Travis County, but I don't support the TIDC proposal, which would lead to worse indigent defense in our county because it doesn't resolve the issue of a lack of funding. Once the grant expires, we'll be in exactly the same situation as we are now, except that the 70% of indigent defendants who aren't being represented by the PD will be worse off because most of the funding will go towards the 30% of indigent defendants represented by the PD. That's arbitrary and unfair. Currently, the only conversation is the TIDC proposal or nothing. We need to move away from political theater and discuss the mechanics of bringing a fully-funded PD's office to Travis County. If the commissioners aren't serious about funding one, then improving CAPDS is the best option. Contrary to your post, CAPDS is not a joke, and it's improving every year. Feel free to email me at chris@chrisperrilaw.com, and we can set-up a time to talk.

Anonymous said...

Unfortunately, opinion pieces like this avert the public's attention from the true crisis in indigent/near indigent representation. That is, the private attorneys that don't qualify for the CAPDS panel of attorneys because they don't meet the qualifications. These lawyers make a living on volume plea bargaining, while trashing the appointed system. Assisted by columns like this, while offering a sub-par performance, huge case loads, no access to investigators or experts, and which have virtually no cases that go to trial. If you take the time to peruse the FACTS system in Travis County, (https://www2.traviscountytx.gov/courts/files/uploads/crimsettingsbyattorney.pdf) you will see that is rare that a CAPDS attorney has over 5-7 pages of cases, yet the unregulated private attorneys who primarily handle poor or near-poor clients have as many as 20-25 pages. Their marketing strategy is to make potential clients think anyone is better than a court-appointed lawyer, and yet have no time to devote to clients themselves. There is a strategy to avoid trial because it disrupts the cash flow of resolving cases quickly.

Avert your eyes no more. Look at these lawyers who up to this point have no accountability whatsoever and operate below the radar. CAPDS has case limits, access to experts and investigators, immigration lawyers, technology (which has increased efficiency), and more trial experience than these volume-dependent letter-writing marketeers.

Wake up and look at these folks if you want to promote real reform. So far, your barking up the wrong tree.