At a truly excellent conference this week sponsored by the Texas Task Force on Indigent Defense, the indigent defense coordinator in Taylor County gave a description of the processes they use to ensure attorneys are promptly appointed for people in jail.
As mentioned earlier, the Supreme Court's Rothgery case now requires counties to provide lawyers to indigent defendants out on bond and many counties have not upgraded their indigent defense plans to accommodate that change. But processes for appointing lawyers for people in jail have problems too, and for those folks, Taylor County seems to have a good accountability system in place that goes beyond what most counties are doing.
Jennifer DeLeon Griffin, the Taylor indigent defense coordinator, pro-actively reviews the list of jail inmates who've not bonded out and do not have an attorney (if they have one, she emails the lawyer to let them know their client is back in jail). Then she visits the jail twice weekly to record requests for an attorney and gets them appointed ASAP. That's a pretty pro-active approach - lots of other counties just have requests go through the jailers which can cause unnecessary delay.
After counsel is appointed, Griffin periodically checks jail visitation records to find out if the lawyer has visited their client, which is supposed to happen according to county rules within five days. If the attorney hasn't visited, she contacts them with a reminder. If a second reminder is required, she also sends a copy to the judge so the lawyer knows the judge is aware of their delay. If that doesn't do the trick, she gets the judge to personally call the attorney telling them to follow up.
Griffin also created a county "complaint of attorney conduct" form for defendants to fill out if they're unhappy with their representation,, and those complaints are computerized so each judge can pull up all of a given attorney's complaints. Their county plan has a periodic review process for attorneys where judges look at complaints, non-compliance with attorney visits, etc., and make a decision whether to remove those who're not up to snuff.
Speaking of which, I heard a couple of interesting discussions at the event of processes for removing bad attorneys from the appointment list. The court administrator from Travis said their judges annually vet the list together and may decide to remove an attorney altogether, downgrade others to lower-level cases, and in some instances giving a reprimand/warning in lieu of removal. In some cases, judges told attorneys they needed to get a mentor to continue receiving appointments.
The first time Travis judges vetted the appointment list several years ago, targeted lawyers reacted with a howl of protest. In some instances their caseload was 100% appointed cases, so removing them from the list was essentially firing them as a lawyer and some were quite upset. As a result of that initial backlash, now when Travis removes somebody a county staffer meets with them to explain the judges' reasons and tell them what they need to do to regain their appointment status. By contrast, some counties just send them a form letter saying "you're off."
The Taylor County coordinator deserves a lot of credit for being proactive to ensure prompt appointment of counsel and that lawyers are visiting their clients. I'd definitely like to see other counties mimic her methods, and similar accountability protocols need to be developed after Rothgery to oversee appointed counsel for people who've bonded out.
The laws intention was great, sad that it is not followed.
ReplyDeleteIndigent inmates in one particular county jail often do not see their attorney until the day of pleading.
The attorneys have even gotten around seeing their appointment within the first 72 hours of appointment by sending a fax to the jail to give to the defendant. Seems this would violate some sort of communicatons privilege between the defendant and attorney.
The attorneys always get it on the court record from the defendant that they were satisified with the representation they received. What a joke.
One recent case in particular, a defendant was benched from TDCJ to answer a local felony charge. He gets a court appointed attorney, make numerous written requests to jail staff to call his attorney, jail staff says they make the calls for him and leave word for the attorney to call, the attorney never calls or visits his appointment and does not lay eyes on him until the day the defendant enters his plea.
Then the attorney bills the county for his services.
It get's better. The defendant gets time served on the local charge because he has been incarcerated in TDCJ. He has served all of his time at TDCJ and should have been released after making his plea. Instead, he remains in jail one and one half months for no reason at all. When he asks to get a copy of the judgement to show he is time served, jail staff tells him to call his lawyer!
We put a system in place to log all communications between the attorney and his appointment, including telephone, written, and in person. It was designed not only to see if the attorney was fulfilling his obligations, but to also have something for the county auditor to check the attorney's billing statements against.
No one in county government seems to care.
Promptly appointing attorneys is only part of the solution. It's good to have a lawyer, but a lawyer has be able to help, which they cannot do without information. In McLennan County, it often takes weeks to get the offense reports to the District Attorney's office. Without those reports, you can't get the charges dismissed or reduced, or work out a resolution. In the meantime, the defendant is sitting in jail if they can't afford to make bond.
ReplyDeleteIf the system is really going to work, something has to be done to compel the police and the State to act act promptly.
Art. 17.151. RELEASE BECAUSE OF DELAY.
ReplyDeleteSec. 1. A defendant who is detained in jail pending trial of an accusation against him must be released either on personal bond or by reducing the amount of bail required, if the state is not ready for trial of the criminal action for which he is being detained within:
(1) 90 days from the commencement of his detention if he is accused of a felony;
(2) 30 days from the commencement of his detention if he is accused of a misdemeanor punishable by a sentence of imprisonment in jail for more than 180 days;
(3) 15 days from the commencement of his detention if he is accused of a misdemeanor punishable by a sentence of imprisonment for 180 days or less; or
(4) five days from the commencement of his detention if he is accused of a misdemeanor punishable by a fine only.
Sec. 2. The provisions of this article do not apply to a defendant who is:
(1) serving a sentence of imprisonment for another offense while the defendant is serving that sentence;
(2) being detained pending trial of another accusation against the defendant as to which the applicable period has not yet elapsed;
(3) incompetent to stand trial, during the period of the defendant's incompetence; or
(4) being detained for a violation of the conditions of a previous release related to the safety of a victim of the alleged offense or to the safety of the community under this article.
Mr. Reaves,
ReplyDeleteIn felony cases, why do attorneys not use more often the right of their client to an examining trial before indictment?
That would force law enforcement to get their reports filed in a timely manner.
While there are good attorneys and good cops, I suggest that many attorneys are just as lazy as law enforcement.
Regarding violation of probation charges, many probationers sit in jail indefinitely because they failed to pay a probation fee or some other administrative violation.
ReplyDeleteI've often wondered why probationers just sit in jail for months when their attorney could file the following found under section 21 (b) Texas CCP, if the defendant has not been released on bail, on motion by the defendant the judge shall cause the defendant to be brought before the judge for a hearing within 20 days of filing of said motion, and after a hearing without a jury,may either continue, extend, modify, or revoke the community supervision.
This seems like it would help alleviate jail overcrowding, but more importantly get these people out of jail who are in for minor violations of their probation.
And probationers do have a right to appointed counsel if they are indigent.
Anonymous,
ReplyDeleteIn most counties, a request for an examining trial is called a request for indictment. Most DA's will get the file, and take it to the grand jury before going through an examining trial. You also have to get a judge to agree to set an examining trial, which is not always easy.
The right to an examining trial is one of those things that looks good on paper, but doesn't work the way it was intended.