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.