Sunday, March 26, 2006

Tarrant court appointment system improved but still not fixed

Tarrant County has consolidated most attorney appointments in one locale, improving both consistency and quality of indigency evaluations, but the system still suffers from gaps. Last year Tarrant (Fort Worth is the county seat) hired a new magistrate judge and four staffers whose sole job it is to determine indigency and eligibility for appointed counsel for the 25,000+ defendants annually who require it.

Not everybody's using the new system, though, especially in misdemeanor courts, and significant problems remain, says a new report (pdf) by Wesley Shackelford, Special Counsel to the Texas Task Force on Indigent Defense. Yesterday the Fort Worth Star-Telegram covered the subject ("Reduction sought in jail population," March 25), reporting:

Magistrate Matt King, who has been working part time for the county for eight months through a state grant, will continue working with four financial information officers to process indigent defendants' legal aid requests. ...

County officials also plan for King to conduct daily misdemeanor "jail runs" -- or reviews of cases involving poor defendants accused of nonviolent offenses but who are incarcerated. Officials hope that by settling those cases quickly, they can save taxpayers the $50 a day it costs to keep defendants behind bars.

The Startlegram quoted a Tarrant commissioner who is a member of the indigent defense task force lavishly praising the county's appointment system, even though the report itself wasn't so glowing:
"I think Tarrant County has been an example of how to do things right," said Commissioner Glen Whitley, a member of a statewide task force that oversees indigent defense programs. "Overall, I think it has been successful. I don't think we hear where someone sat in jail for months and isn't getting charged."
That's a pretty low bar for success, though, isn't it? - that defendants don't wait months before they're charged! When that happens the system has completely failed. How about defendants who've been charged but who sit in jail because they can't make bond? That's a big cause of the Tarrant jail's overincarceration crisis, but Judge King's system for appointing counsel won't affect it.

I also wonder whether the new system creates redundancies with Tarrant's underused Pretrial Services division - how many times is the county going to interview these people, after all? It doesn't sound from the report or the press coverage like information from Judge King's interviewers is used for determining eligibility for personal bond, but that's what's needed to really dent the jail population. Only 16% of Tarrant defendants presently qualify for personal bonds, while according to the most recent jail population report (pdf), 59% of Tarrant jail inmates are incarcerated awating trial.
According to the task force study, several significant problems still exist under the new system - especially regarding appointments in misdemeanor cases and probation revocation hearings. Even more worrisome, in a couple of instances Tarrant's current practices appear to violate the state Code of Criminal Procedure.

The report cites numerous gaps where lawyers are being appointed from the bench by various judges instead of using the "wheel" system operated by the Office of Attorney Appointments (OAA), especially for misdemeanors where a majority of appointments are still made from the bench, often after the defendant has spent a lot of extra, unnecessary time sitting around in jail on the taxpayers dime. Reported the Startlegram:
On Tuesday, there were 288 unsentenced misdemeanor defendants in the jail at a cost of about $14,400 a day, or nearly $5.3 million a year, she said. If King can move at least 10 percent of those cases a year, the county would save more than $500,000, she said.

"If this will make the misdemeanor courts use the [attorney-appointment] system and use Matt it will be a much better world for all. Not only for the taxpayers, but also the defendants," said Don Hase, an Arlington attorney who has been critical of the system.

Well, it will if they fix it. Right now Tarrant judges still make most misdemeanor appointments themselves instead of using OAA.

In a couple of cases, bench appointment practices led to judges apparently violating state law, said the report. Some judges appointed lawyers who weren't on the approved attorney lists, in the most prominent case as a favor to a former prosecutor while she waited for the judges to vote on her formal selection.

Also, each judge keeps his or her own list of appointable attorneys to represent clients in probation revocation hearings, a practice the report says also appears to violate the Code of Criminal Procedure Section 26.04 because how the attorneys are selected is inconsistent, varying by judge. Shackelford suggested creating a separate "wheel" for attorneys qualified to handle probation revocations, or possibly a specialized public defender division for that purpose.

Speaking of which, the Startlegram's coverage didn't mention Shackelford's suggestion that an "alternative for consideration would be the creation of a public defender office." "Public defender offices are by far the most common approach to providing indigent defense representation in urban areas and in a 1999 survey were shown to handle about 82% of all indigent cases in urban counties," he wrote.

I recommended the same thing last year after another study revealed Tarrant's indigent defense costs increased 87% after passage of Texas' Fair Defense Act, compared with 40% statewide and 10.6% in Dallas, which has a public defender. Judge King's new system is nice, but it won't ever generate that kind of savings.

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