'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.