Monday, April 14, 2014

'Private defender' model suggested for Travis County

Travis County is considering big changes to the way it delivers indigent-defense services, taking most decisions out of the hands of judges and giving them to "a new office of Travis County Private Defender — an estimated $670,000 nonprofit under the control of the private defense bar," which "would assign lawyers to indigent cases, determine compensation for their work and derive a set of standards to evaluate their performance, the Austin Statesman reported Friday.

Travis County judges have already given up most authority to appoint attorneys - all of them use a "wheel" system that "has evolved into an electronic process under the Office of Court Administration, which takes applications from lawyers who wish to receive court-appointed referrals." Though "judges decide who stays on the list and what level of cases they are equipped to handle, an evaluation of now more than 250 attorneys that they say is cursory and happens only once a year."

As described the system aims to address the plea mill scenario created by high-volume legal representation:
There are no regular measures to review attorney caseloads, while judges have disparate methods for providing compensation and resources, and some decline to pay for more work, defense lawyers said. The result is a treadmill, on which lawyers are pushed to take quick plea agreements rather than taking more time on investigations or going to trial and on which defendants, many of whom are minorities, become trapped in the system, attorneys and legal officials said.

“I have had judges deny me the right to an investigator. I’ve had judges say, ‘Whatever you need,’” defense lawyer Jackie Wood said. “I would hope that one person or one office making the decisions would be better and more consistent than six or seven different personalities.”
That sounds good on its face, but in the end the question will come down to the amount of resources devoted by the county to indigent defense. A bureaucracy can deny funding for investigators as easily as a judge if the money isn't there.

Opposition to the idea, wrote reporter Jazmine Ulloa, comes from criminal defense lawyers afraid that "judges are simply looking for a way to trim attorneys who they believe are unqualified from the court-appointment wheel," complaining that "such cuts wouldn’t help those lawyers improve and would only lead to higher caseloads for others who remain on the list." That aspect of the change doesn't bother me, I must say, though I wish our elected judges would take care of the problem instead of outsourcing it to a nonprofit. However, I've worked my share of judicial elections and know judges are loathe to threaten the income of their most reliable source of campaign contributions. So I understand why it's difficult for them to manage that part of the process.

Even so, personally I'd prefer the county fund a full-blown public defender office to handle a significant chunk of its regular caseload, a model that has worked well in Dallas and Houston. From all I've heard, the parts of the Travis County system with public defenders (juvenile and mental health cases) work just fine. Why not expand the concept to handle more of the regular adult caseload?

The private defender model aims to fix only one aspect of the problem - appointment of unqualified attorneys - but cannot resolve two other issues that PDs are better suited to addressing: Resource allocation and providing an institutional counterweight to the District and County Attorneys Offices. Though PDs often get short-changed in the budgeting process, I feel like a formal division of government has a better shot at pushing for its fair share than a disparate group of private, self-interested attorneys running a couple hundred separate small businesses milking the government teat.

Which brings me to my second reason for favoring a public defender: On county-level policy issues, they provide an institutional presence that the private bar cannot muster. From pretrial detention policy to post-conviction SNAFUs like the Jonathan Salvador case, prosecutors tend to dominate local criminal-justice decision making. But counties with public defenders automatically have someone at the policy making table when important issues are discussed. And PDs provide a pool of expertise that becomes a resource for the entire criminal defense bar. The proposed private defender model - even if it's adequately funded - cannot meaningfully fulfill that institutional role.

Usually my (admittedly low) bar for whether to support a public policy change of this sort is whether the suggestion would be an improvement over the status quo. The suggested Travis County Private Defender probably meets that standard, but not by much. They'd be better off creating a full-blown public defender office to handle part of the adult caseload. It sounds like this process is pretty far down the road so I don't know if that can still happen, but it'd be my preference.


Unknown said...

I concur with the author. Law enforcement is more like a large, unified army against a scattered bunch of mercenary criminal defense lawyers. The institutional advantage is huge.

Phillip Goff, attorney

Anonymous said...

If I could have gone to work for a true Public Defender’s office when I started practicing law then I would have. Alas, none existed in Travis County. I have been taking court appointments in Travis County for over ten years. Aside from all the smack talk about court appointed attorneys I hear, I believe the system we have is not broken and does not need fixing. The vast majority of attorneys who take court appointments are not looking to line their wallets. If anything we get paid about 10 cents on the dollar for what we would make on a retained case. But I believe we have an obligation to take court appointments. There is some satisfaction in providing representation to an underserved community. Then too there is enlightened self interest. You do right by a court appointment and you will get referrals. Referrals do not flow from substandard performance. Referrals pay. Reputation is everything in this business. My philosophy has always been to treat every client the same. I don't trust bureaucracy. The current MAC program is just that. It adds another layer where none is needed. I don't see how the proposed scheme will improve the quality of indigent defense in Travis County.

Marti said...

I believe that the benefits of a PD's office cannot be emphasized enough!

Anonymous said...

Your article and some of these comments are a bit off the mark. There are three types of criminal defense lawyers in Travis County.1.) Those who have a private practice and take some court appointments; 2.)Those who primarily take court appointments in their practice; 3.)Bottom feeders who don't qualify for the court appointment list. The danger of sub-par representation comes not from those who have the requisite qualifications in the form of experience and judicial evaluations (#1 & #2), but the high volume, cheap, inexperienced, and often incompetent #3 bottom feeders who gain their business by perpetuating the myth of the "lousy" court-appointed lawyer. They are not allowed on the list because they are inadequate yet they troll the jail at night waiting for family members to pay them for a jail release when the arrested could get out anyway on personal bond if they waited another hour or so. They are the lawyers whose desk is the trunk of their car. They charge sometimes less than a court-appointed lawyer makes on an appointment and does nothing for their client afterward. They are a joke and yet people focus on the court-appointed lawyers who have the most experience with the most difficult clients (especially at the Felony level), the most serious trials, and sometimes are Board Certified (fewer than 10% are). A Public Defender will do nothing to stop this fraud perpetrated on the public every day by the bottom feeders who fuel these myths about court-appointed lawyers. Quit taking the bait, Grits.

Anonymous said...

Let me add one more category: The lawyer who practices personal injury, family law, and other categories, then decides to dabble in criminal law on the side. Look at the online criminal docket and you will see that it is replete with lawyers with 1-8 cases which should tell you that they practice law as a hobby or side area. They are not court-appointed, yet nobody is policing their methods and abilities. Check out the web sites of some of the personal injury firms in town and you will see criminal on some. They know nothing of criminal law yet they take money and wing it. They are worse than the letter writers who send letters to the arrested and tout cheap fees who sometimes get in over their head. Court-appointed lawyers are categorized by abilities, knowledge, experience, and credentials. It's about time the propaganda stopped.

Jefe said...

There are many ways to fund indigent defense. Any system that provides adequate resources to the defense and manageable caseloads is good. Bidding out contracts is the worst because it guarantees neither. An underfunded, overworked PD is little better. Once you have addressed resources and caseloads, autonomy and independence are next in order of importance. That is why the Comal County experiment (allowing defendant to choose appointed counsel) would be fine if it also meant all choices were adequately compensated and did not do volume work.If Travis County thinks managed assigned counsel is a way to cut costs, it will fail. If managed assigned counsel only deals with autonomy and independence and not resources and caseloads it will not be an improvement, but it will be no worse.

Anonymous said...

Low-quality representation will continue until schools like TSU and S. Tx. stop pumping out graduates, and until there are serious mentor efforts made by local bar associations. HBA is useless, but HCCLA gives it half a shot, at least. Instead of looking down on lawyers who troll the jail (which is not a good thing), how about helping them improve? Bring them into the fold, instead of alienating them further.


rodsmith said...

someone might also want to let the judges know that belive it or not. the south LOST the civil war. Therefore slavery is dead. You don't get to order me to work or what cases I take.. Most especially if your going to be a penny pinching twit.

Anonymous said...

The Private Defender model was implemented in Lubbock County a couple of years ago. As someone that does strictly criminal defense (both hired and appointed), I believe that the level of representation for the indigent has improved. You don't have an issue with conflicts like the PD does in multiple-defendant cases. It provides a central figurehead to watch over the work of the attorneys and provide assistance when needed or requested. But most importantly, the person making the decisions about the money (experts, etc.) is a person that knows what it takes to successfully defend a case.

Anonymous said...

It should take the Lubbock County Model and improve upon it. The Private Defender Office there does a good job of making sure the attorneys are not 'just dabbling in criminal law' and the 'panel attorneys' are also members of the local criminal defense bar (LCDLA), which is a tight knit group that takes care of its own when it comes to training, education and making sure the attorneys do a good job.

Anonymous said...

all defense must be private defense - private lawyers funded with private dollars. why? because lawyers employed and/pr paid by the gov't (aka taxpayer) creates a conflict of interest in the court room. when all the lawyers/judges in the courtroom have all their bread buttered by the same source (the gov't the taxpayer) - that is a conflict of interest. its time to eliminate this conflict of interest. only when all defense in handled by private lawyers privately funded will real justice be delivered. all gov't sponsored public defense is a sham on its face. when gov't pays for the judge, the prosectutor and the defense lawyer - thats a conflict of interest. this conflict must be eliminated - yet the lawyers and the judges look the other way - money trumps conflict of interest. gideon never ordered the state aka the taxpayer to provide funding for defense counsel, yet the supreme courts of all the states looked the other way when the states ponied up the dough as this taxpayer money provided their number one source of election/reelection support - the lawyers - with lucrative incomes. stop the conflict and eliminate taxpayer funded defense lawyers.