Harris Co. public defender achieves much better outcomes than assigned counsel

Tony Fabelo and Carl Reynolds of the Council of State Governments Justice Center have produced a new report analyzing the work product of the Harris County Public Defenders Office, reported the Houston Chronicle yesterday. See a 2-page overview (pdf) and here's the full report (pdf). Summarized the newspaper:

In general, the report found that the public defender's office does more investigation, which leads to better results in court, advocates for the defense bar in community issues and offers free training, mentoring and advice that was not available before.

Those courtroom results include a greater proportion of dismissals, deferred sentences and acquittals. The report also pointed out that the office sees a smaller proportion of "guilty" verdicts than appointed lawyers. Overall, the public defender office secured acquittals at three times the rate of appointed or hired attorneys, according to the report.

The Chron's coverage quoted county GOP Chairman Jared Woodfill criticizing the higher cost per case at the PD compared to assigned counsel, but there are several mitigating factors behind those numbers that weren't fully clarified. First, HCPD enforces caseload caps consistent with American Bar Association guidelines while some assigned counsel far exceed those numbers. Plus, a disproportionate number of HCPD cases involve mentally ill defendants and are typically more complex than the average case. Finally, overhead costs are counted against the PD that are subsumed in judicial budgets for court coordinators, etc., for assigned counsel, making the comparison apples and oranges.

Otherwise, looking through the report, here are a few highlights that jumped out at me:

"[W]ith few exceptions, public defender attorneys delivered better defense results than assigned counsel attorneys."

In Harris County as a whole, "plea bargaining is even more prevalent than elsewhere and sentencing outcomes are more costly for the state, with Harris County overrepresented in prison and state jail commitments and under-represented in probation commitments."

For mentally ill offenders accused of misdemeanors, HCPD's mental health division "achieves significantly higher dismissal rates (38 percent versus 10 percent) and lower conviction rates (70 percent versus 92 percent) compared to assigned counsel."  "Dismissals were five times more likely for HCPD clients than for the match group" of assigned counsel, even though HCPD is assigned "more severe cases" than the typical assigned counsel.

"HCPD's total caseload is set at 5,075 while the total Harris County indigent caseload for FY 2012 was almost 72,000."

On felony cases, "Not only did HCPD clients have fewer findings of guilt than appointed attorneys, the office was far more likely to take its cases to trial than appointed counsel or retained counsel. And once at trial, HCPD clients were more likely to get acquittals for all changes, 22 percent of HCPD clients who were tried were found not guilty and did not face a new trial."

"HCPD and retained counsel are more likely to achieve dismissal of weak cases, where appointed counsel is more likely to plead them down."

"Competent and diligent representation demands more effort than minimal per-case or per-docket payment tends to support. Anecdotal reports suggest that in many court-appointed cases, particularly misdemeanors, counsel reads the offense report and takes a plea offer back to the client. Absent a glaring defect in the state’s case, the attorney recommends, and the client usually accepts, the prosecutor’s offer. Simply calling a witness, or doing some basic legal research, may make the difference between this result and a dismissal, further investigation, or a better plea offer. Small acts of due diligence in defending a case can dramatically change results." (Emphasis in original.)

Among cases processed through the county's "wheel" system, "the top 10 percent of attorneys were assigned over 452 cases annually (with an average of 632 cases and the highest at 952 cases). There were 32 attorneys who received more than 400 cases, 6 of whom received more than 400 in one court." About 45% of assigned cases are handled by attorneys whose caseloads exceed American Bar Association standards. By contrast, HCPD has established caseload caps consistent with ABA standards.

"[T]he public defender office can bring specific, targeted expertise to the table, such as representation of the mentally ill, successful appellate advocacy, advice to the criminal bar on issues such as a conviction's impact on immigration status, as well as the ability to help respond to systemic issues" such as the Jonathan Salvador debacle at the DPS-Houston crime lab.

Harris County pays assigned counsel "considerably less per case than other urban counties in the state," especially for misdemeanors where "the payout per case is about two-thirds of the large county average." Here's a chart depicting rates in Texas' five largest counties.


"Evaluation of assigned counsel is needed," declared the report. While "there has been a marked emphasis on evaluating public defenders, [there has been] very little focus on the workload or performance of the assigned counsel system." Given the preponderance of cases with assigned counsel, their "performance should be subjected to comparable or greater evaluation effort. As stated by Professor Lefstein (see text accompanying footnote 1), 'When adequate oversight of assigned counsel programs is lacking, the lawyers, in an effort to maximize their incomes, sometimes accept too many cases because they are poorly compensated on a per-case basis for their services.'"

"HCPD has presented a total of 63 accredited Continuing Legal Education (CLE) programs since its inception: 7 programs in 2011, 39 programs in 2012 and 17 programs so far in 2013. Total documented attendance at the programs was 1,868 attorneys at no cost to attendees."