Judges as Grantmakers: Sharon Keller's secret soft side on indigent defense

Brandi Grissom at The Texas Tribune describes an underreported aspect of Sharon Keller's role as Presiding Judge of Texas Court of Criminal Appeals: Chair of the Texas Task Force on Indigent Defense, which has spearheaded over the last decade a remarkable expansion of public-defender offices around the state. Reports Grissom:

Lawmakers created the task force in 2001 when Texas was a national laughingstock for its dismal provision of legal representation for poor criminal defendants. Now, counties must meet minimum standards for legal representation, thousands more poor defendants get qualified attorneys, and 91 counties — many in rural areas with few public resources — are served in some capacity by a public defender. Both critics and supporters of the Texas criminal justice system agree the task force has overseen a sea change in defense representation for people who can't otherwise afford it. And despite the roiling controversy over her judicial conduct, most seem to agree that Keller’s leadership has been instrumental. “We started at ground zero,” said state Rep. Pete Gallego, D-Alpine, a member of the task force and chairman of the House Criminal Jurisprudence Committee. “We were one of the worst states around, and as chairman of the task force, she’s really been in a real sense responsible for building the whole thing.”

Among the major initiatives that have improved representation for the poor is increased funding for counties to provide defense services. Before 2001, the state gave counties no money to provide indigent defense. Lawyers who did the work often received a pittance, making it difficult for courts to find qualified lawyers to take the cases. Last year, the task force awarded counties statewide $31 million to run public defender offices and provide indigent defense. Andrea Marsh, executive director of the Texas Fair Defense Project, said Keller has worked not only to give counties funds they need for indigent defense, but also to give them incentives for new and innovative programs. Task force grants have helped launch programs like Travis County’s Mental Health Public Defender Office. “She has been supportive of giving more of that money to program improvements and not just giving that money for the same old thing that isn’t working,” Marsh said.

Having judges like Keller on the indigent defense task force isn’t ideal, Marsh said. Oversight of defense lawyers, she said, should be independent of the judiciary in the same way it is for prosecutors. Despite general concerns about potential conflicts of interest, Marsh said Keller has been an effective leader of the task force, knowing that qualified lawyers at the beginning trial stages mean fewer cases for appellate judges to wade through down the line. “The court system doesn’t work if defendants don’t have competent representation,” Marsh said. “It creates all sorts of problems that a court like hers has to deal with later.”

It's absolutely true that the Task Force on Indidgent Defense under Judge Keller's leadership has made  remarkable strides, and also that she doesn't get as much credit for that as she might and perhaps even should. IMO that's in part because so much credit is universally given to the lead staffer on the task force, Jim Bethke, whose likable, mild-mannered, mostly behind-the-scenes approach has succeeded in weaving together cooperation from an impressive and influential array of unlikely allies. Bethke's leadership has allowed the defense bar to some extent to trust the TFID process even if they don't trust Keller, which arguably has been the secret behind the organization's success. I've always admired Bethke's ability to earn trust across the spectrum. (Clearly Grits has not accomplished that feat, though perhaps there's a reason Mr. Bethke, a fellow Tylerite, offers his opinions far less freely!)

But as a practical matter, Bethke works for Judge Keller - he was sitting behind her at the recent removal hearing along with other supporters like Judge Barbara Hervey - and there's no doubt he couldn't do what he does if she did not endorse it. What's more, when I've heard her speak on the subject (rarely and briefly - she typically lets Jim operate as front man), she's seemed genuinely informed, engaged and supportive about improving the quality of indigent defense. I've had this conversation with quite a few folks over the years: It's a strange contradiction, with the only common denominator with her judicial stances possibly being her generally low estimation of the defense bar.

Judges as Grantmakers?
Grissom's story raises a larger issue I've intended for a while to focus on when I have more time to research it: The Court of Criminal Appeals' secretive, little discussed role as a major criminal justice grantmaker. According to Texas Courts Online:

Texas is one of four states in which the administrative office of the courts has no responsibility for judicial education. In Texas, judicial education is administered by the Court of Criminal Appeals, pursuant to Chapter 56, Texas Government Code, and Appropriations Act riders applicable to the Court of Criminal Appeals. Chapter 22, Texas Government Code mandates certain topics of judicial education: family violence, sexual assault, child abuse, diversions from prison, and guardianship.

The CCA most prominently doles out tens of millions each biennium for continuing education, but as Grissom notes, Keller also basically controls (or at least has substantial input on) grants from the Task Force on Indigent Defense, which among many other worthy causes gives grants (if I remember correctly, $200K annually apiece) to innocence clinics at Texas' four public law schools. However, a little-discussed 2009 report from the state auditor lamented that the CCA "lacks formal, written policies and procedures for awarding and administering grants."

There's also a seldom discussed political aspect to this grantmaking function that's always left me a little uncomfortable. For example, here's the list of current grantees for the CCA's Judicial and Court Personnel Training Fund:

• Texas Association of Counties
• Texas Center for the Judiciary
• Texas Council on Family Violence
• Texas Criminal Defense Lawyers Association
• Texas District and County Attorneys Association
• Texas District Court Alliance
• Texas Justice Court Training Center
• Texas Municipal Courts Education Center
• The Center for American and International Law

Of those, the Texas Association of Counties, the Texas District and County Attorneys Association, and the Texas Criminal Defense Lawyers Association are significant political players at the capitol on criminal justice topics, so there's an appearance the CCA judges are giving fat grants to powerful legislative insiders. It can be intellectually justified because the grants go mostly for continuing legal education and fulfillment of those professional organization's basic roles, but the perception continues to hover there, persistent, inevitable. It's made me wonder in the past whether it's wise for the CCA to double as the state's second biggest source of criminal-justice grant funds after the Governor's Criminal Justice Division, or whether that function should be shifted to the Office of Court Administration as it has been in all but four states?

Sharon Keller does indeed deserve credit for grantmaking on her watch, but that has nothing to do with her judging, and there's an argument to be made that such grantmaking functions shouldn't either.