Thursday, May 02, 2019

In Austin, a reminder why indigent defense should be independent of the judiciary

Judges in Travis County later today will consider a public-defender proposal that became controversial when the local criminal-defense bar stormed away from the table like spoiled children. (The judges initially opposed a PD office outright, but some of them appear to have softened up.) Luckily, not all the defense lawyers on the working group quit, more were added, and the county-convened working group continued its work, producing this proposal for a public-defender office to handle 30% of the indigent caseload in Travis County criminal courts.

In a sop to the local defense bar (which, personally, I wouldn't have afforded them, after their self-righteous hissy fit), the proposal solicits new resources for the existing "Managed Assigned Counsel" system, which has been an embarrassing failure by any measure. But it would also establish a public-defender office in the largest American county not to have one. And over time, Grits has little doubt which system will prove more effective.

The managed-assigned-counsel system in Austin has been criticized for not promptly appointing counsel, and attorneys with the largest caseloads took on MORE cases under the CAPDS system than before. Inmates spent more time in jail. And in general, outcomes for indigent defendants in Travis county were worse than defendants with private lawyers, while national analyses have found outcomes for public defenders and retained counsel are much closer.

So if Travis County judges were making a decision based on the merits, they should absolutely support a public-defender office. But here's the thing: Ethically, it shouldn't be any of their business.

Texas law gives elected judges tremendous control over appointment of counsel for the indigent. However, the very first of the American Bar Association's 10 principles on indigent defense declares that the appointment, payment, etc. of defense counsel should occur independently of the judiciary. That's the county commissioners' business, not theirs.

That's necessary to avoid the appearance of conflicts of interest. You don't want a judge appearing to pick a poor attorney for a maligned defendant, nor choosing an exceptional one for a family friend. You don't want them hiring lawyers with a reputations for "moving cases" at the expense of asserting defendants' rights. Plus, criminal-defense lawyers who practice before local courts frequently are among the largest contributors to judges' electoral campaigns. So from the outside, an appearance of reciprocity may exist no matter what the individuals' intentions. (Occasionally, in Texas, it's more than just an appearance.)

All of this is a problem. Thus, the ABA's first "principle" of indigent defense reads: "The public defense function should be independent from political influence and subject to judicial supervision only in the same manner and to the same extent as retained counsel." Specifically, the ABA said "selection, funding, and payment" of attorneys should be independent of the judiciary.

As such, here's the bottom line: As politicians, Travis County judges legally can intervene to oppose a public-defender office. But as attorneys and custodians of the legal profession, they should refrain and support what the commissioners court wants to do.


Anonymous said...

One reason Texas continues to place indigent defense under the Judiciary is due to the historically conservative (some might say extremely conservative) nature of county commissioners courts. There is a legal history in Texas of underfunding indigent defense at the local level, which is why the system was reformed in 2001.

We're in agreement that there should be some distance in the overall appointment process, and more transparency is necessary at the individual appointment level to ensure that happens (similar to what the Lege did with ad litem appointments a couple years ago). What doesn't need to happen is commissioners picking the method of appointment. They'll pick the cheapest option 9 times out of 10, leading to higher caseloads, longer time to disposition, and lower quality of representation.

Disclaimer: I am not an attorney

BarkGrowlBite said...

I am all for a public defender system. The court-appointed system serves the attorney more than it does a criminal defendant. But for a public defender's office to be effective it must have all the resources available to the prosecutor's office. That means the PD must have investigators on its staff and funds to pay expert witnesses. Without those resources a PD system will be little better than the court-appointed system.

Anonymous said...

I don't think it's true that Travis County is the largest American county not to have a PD's office. Tarrant is bigger and uses court-appointed counsel.

Anonymous said...

The most recent report that was circulated among the Commissioners, defense bar, and other interested parties, pointed out that the managed system of appointed lawyers passed all of the standards and it was court administration that was slow to respond to the appointment of counsel. They are not one in the same. The managed appointment system (CAPDS) has met every standard it has been asked to, and the lineup of lawyers includes veteran trial lawyers, some Board Certified, that are as dedicated to their clients as any public defender.

The driving force behind this effort to create public jobs for a select few people, are disgruntled former employees of CAPDS, spoiled law students wanting a government job handed to them, and ideological non-practicing lawyers (like grits).

If some of the advocates of a PD system actually represented some indigent clients once in a while, did some trials, and put some real hours in representing an indigent client on a serious case, maybe it would not appear that they are just chronic complainers screaming from the cheap seats. If so, they might be taken a little more seriously by the legal community even if they are successful in bamboozling the Commissioners.

BarkGrowlBite said...

Anon 11:24, you don't know shit about a public defender system. The standards you keep yapping about were set by those who would most benefit from the managed system of appointed lawyers.

I have had quite a bit of experience with public defenders in systems like the one I described earlier. Let me tell you this ... I wish the criminals I busted would have been defended by a court appointed lawyer. They probably would have copped a plea instead of going to trial.

It sure sounds like you night be one of the lawyers benefiting from the court appointment system.

Anonymous said...

Anything to circumvent due process eh Bark?