Simple economics: Do attorney fee structures retard right to jury trial?

Are fee rates that value pleas over dismissals retarding defendants' right to a jury trial in Bexar County?

An anonymous commenter to this Grits post pointed to a situation in San Antonio that other commenters have mentioned since I began this blog, always anonymously (could be the same person, I guess), but persistently and with seeming authority. I've never had time to track it down and can't vouch for its accuracy. But if true, it's a damning indictment of Bexar County indigent defense:

In Bexar County felony appointed attorneys are routinely paid substantially more for guilty pleas than for dismissals. The payment rules are unethically contingent upon result, with an unfavorable result being rewarded.

Bexar misdemeanor attorneys are paid 100 for a quick instant plea, or 100/day for a trial. This is the same fee they were paid in 1986, when a volume misdemeanor appointed practice was possible. Now there is one case at a time.

Many Bexar attorneys know that their role is to be a laxative for the docket.

BexarlyJustice

Does anybody from San Antonio have firsthand knowledge or documentation that can confirm BexarlyJustice's figures for attorneys fees? The idea that a county would pay more for pleas than dismissals implies an economic incentive NOT to pursue the defendants' rights in court - if you get the same fee for a 20 minute plea bargain or a day-long jury trial, what private attorney (who after all is a small businessperson) could consistently afford to choose the jury trial?

Do other counties have similar fee structures? Let me hear from you working attorneys out there. Can anybody provide documentation of counties whose criminal defense lawyer pay structures incentivize pleas over adjudication? That would substantially diminish defendants' right to a jury trial - as a matter of practice, certainly, if not as a matter of law.

UPDATE: One of the state's leading experts on the subject, Andrea Marsh from the Texas Fair Defense Project emails with this response:

I would bet that the plea vs. dismissal disparity you discuss in Bexar is dismissals w/o trial rather than dismissal upon trial. For example, my understanding is that in Travis the flat rate for a non-trial dismissal is less than the flat rate for a guilty plea, but that if you got a dismissal at trial you’d be paid regular trial rates which are more than the plea rate.

So it’s not necessarily that the rates favor pleas over trials (though that certainly could be the case if you flip fast pleas and get paid the same as someone who really works up the case), but that judges and defense attorneys don’t see eye to eye on what goes into obtaining a dismissal. Defense attorneys will tell you that it takes them a lot more work to get the DA to agree to a dismissal than to a plea, whereas judges seem to think that dismissals occur as the result of unilateral DA case file review – the DA decides that the police didn’t send them a good case, and the low flat rate for the dismissal is sort of an inconvenience fee for the defense attorney who got appointed to the case and maybe interviewed the client but didn’t really have to do much work.

This latter view of how dismissals come about is echoed in complaints we sometimes here about the Texas Fair Defense Act requiring appointment of defense counsel “too fast,” i.e. before the DA has even decided whether to proceed, resulting in unnecessary attorney expenses in bad cases that the DA will reject anyway. The Texas Task Force on Indidgent Defense has tracked those numbers, though, and not that many cases really fall into that category. And before the FDA, when many counties did wait until the DA accepted a case before appointing counsel, defendants often spent months in jail without representation because in some counties the lag between arrest and indictment/information can be quite long (due to delays on the police or the prosecutor side of things).

One thing to look at is speeding up the police and DA review prcesses, so that bad cases are identified and dismissed quickly, before significant defense expenses are incurred. The Task Force did a recent study on this, which should be on their website. (Also, note the high DA rejection rates in at least some of the counties. El Paso’s was 19%. Better police training to reduce the number of bad cases that enter the system is something else to look at.)

On the fee side of things, one approach might be to distinguish between cases dismissed because the DA rejects them and dismissals that are obtained after the prosecutor accepts the case. A lower flat rate may make sense for the former (though I would argue that in systems where police/DA review is slow, the defense attorney still has an obligation to work up the case while waiting for prosecutorial review), but the current fee structure in Travis and Bexar doesn’t make sense for the latter category of cases.

A valid argument defense attorneys can raise against the suggestion that dismissals before DA acceptance should be paid at a lower rate: sometimes the DA decides not to file because of work done by the defense attorney, not just because there are gaps in the police file. So even in cases that the DA never accepts, charging lower rates for dismissals than for pleas is problematic and creates bad incentives/potential conflicts between the attorney and client.

Thanks, Andrea. I believe this is the study she refers to. Anybody else with more information on the topic, chime in with a comment or shoot me an email.

NUTHER UPDATE: Here's a slightly different perspective from Kristin Etter, a respected Austin criminal defense lawyer:

I can tell you that from my experience, in the hundreds of appointed cases I have handled, I can think of only 1 or 2 that were dismissed as "bad" cases sua sponte by the DA or CA. The dozens of other dismissals I have received have been the result of tons of work and resetting the case multiple times to investigate, get witness statements, do legal research, etc. In Travis County, they appoint w/in 4-5 days of arrest usually if the person requests. Here is the break down in numbers of what they pay for dismissals vs. pleas:

• -Felonies: Plea - $350; Dismissal - $200
• -Misd: Plea - $175; Dismissal - $150

Also, the best time to work a case is early on when witnesses are still available and before they are tampered with by the State. It is also a crucial time because cops will go in and get a confession before counsel is appointed and they really take advantage of that window knowing the person is not educated enough to invoke on his own. I sometimes think that the cops are in on a conspiracy with the courts to toll the time of an appointment while they go in and get a confession. It is a HUGE disservice to not appoint counsel immediately in the hopes that the DA will sua sponte dismiss - they definitely do NOT do that in Travis County and I can't imagine in other counties either.

Thanks, Kristin, that information helps a lot.