Harris County needs an independent Public Defender office

Even as Dallas County commissioners' new caseload quotas and heightened bureaucracy gutted their Public Defender office (I learned over the weekend a 6th felony attorney turned in their resignation on top of the five mentioned earlier on Grits), in Harris County the commissioners court today will hear the details of a preliminary plan on how to create a PD office in Houston. The idea is still in the early stages and would require approval of the commissioners court to proceed. Reports the Houston Chronicle ("Harris County to review plan for public defenders office," Sept 23):

A public defenders office would represent some indigent defendants in four criminal district courts and one juvenile court under a proposal to be presented to Commissioners Court today.

Public defenders also would be assigned to some defendants with mental retardation or significant mental illnesses in the four district courts and all 15 county criminal courts under the plan crafted by the county's budget and management services office.

The plan, submitted as part of the court's annual mid-year budget review, offers a long-awaited but early look at the kind of system Harris County could adopt. A final vote is not expected until shortly before the court adopts the 2009-10 budget in March.

It remains unclear if supporters of the proposal could muster enough support on the five-member board to prevail.

The only step court members are expected to take today is authorizing further studies by a team of representatives from county and district courts, the county attorney's office, each Commissioners Court member's office, the criminal defense bar, the Texas Fair Defense Project and the Texas Task Force on Indigent Defense. ...

State Sen. Rodney Ellis deserves a lot of credit for pushing this idea in Harris County and getting the ball rolling. Generally I'm a big supporter of public defender offices. They not only save the county money on attorneys fees (thanks to economies of scale) but also help process defendants more quickly and to that extent even help with jail overcrowding. While some attorneys fear it will take money out of their pockets, that doesn't have to be the case. In Dallas about half of indigent assignments still go to private attorneys. And there's always the much-more desirable market of defendants who can pay.

Clearly, though, from Dallas' experience, part of any plan for a Harris PD should include ways to insulate the office from direct manipulation by the politicians who set their budget. With prosecutors it's easier because a District Attorney is independently elected, but nationally we see episodic problems with politicized interference by counties similar to what recently happened in Dallas. That's the crux of the concerns raised in the Chronicle story by the defense bar:

Criminal defense lawyer Tate Williams said the plan does not go far enough to eliminate the appearance of impropriety.

"If the judges get to control who gets what case, you're always going to have the allegations of bias and favoritism," Williams said.

He said he would oppose any public defender plan unless the legislature capped the number of cases each attorney could handle and required counties to provide those offices with the same money and access to resources given to prosecutors.

A 15-member Public Defense Board would oversee the whole system, setting those standards, appointing the director and approving the annual budget.

Commissioner Steve Radack said he opposes giving the Public Defense Board authority over a county department. He said the report submitted to the court raised more questions than it answered.

"If it can save the taxpayers money, that's one thing," Radack said. "If it actually provides something better than what we're providing today, we can talk about it."

County Judge Ed Emmett said he had some of the same questions. Commissioner Sylvia Garcia said the report is a step in the right direction.

I've found Commissioner Radack's comments throughout this discussion particularly interesting because he insists he'll base his decision solely on whether a PD office will save taxpayers money. Since there's literally no question at all that's the case, you'd think he'd be a supporter. However, the bigger sticking point may turn out to be whether the commissioners court is willing to cede enough control to make a PD office independent.