Taking a stand

The very existence of public defender offices highlights one of the greatest contradictions in our criminal (in)justice system. We like to put up the facade that our system is fair because everyone, not just those who can afford it, has the right to legal counsel if they are charged with a criminal act.

But not everyone can afford to hire an attorney. So some sort of safety net has to be erected so that those folks have the benefit of legal counsel when facing the almighty power of the state. In some places courts contract out with private attorneys to represent indigent defendants in exchange for a paycheck. In some places judges appoint private attorneys to represent indigent defendants. In some places there is a public defender's office who represents those who cannot afford to hire an attorney.

Of course someone has to foot the bill. And that is usually the county or state. In some places, such as Galveston County, if a defendant is convicted or pleads guilty he or she is charged the reduced fee paid to the attorney by the county.

Here's where the inherent problems a public defender system being. In a criminal prosecution, the government initiates the case against the defendant. The judge, however, is also a government employee who, in places like Texas, faces public scrutiny over his or her decisions (well, that, of course, assumes that the people who vote in judicial races know anything more than what party the candidate is a part of). And, for an indigent defendant, his attorney is also a government employee whose office depends on the government for funding.

In Missouri, Gov. Jay Nixon made the decision to cut funding to the public defender's office. He has repeatedly slashed funding for the office - despite reports that the attorneys are overburdened with their case loads.A 2014 study found that the office needed an additional 270 attorneys just to cover the existing case load. The state spends less than half of the national average in per capita public defense spending. The state ranks 49th of 50.

In a time of budget cutbacks, just who is going to stand up and demand more money for the public defender's office? Who's their constituency? What governor would ever listen to those who advocate for indigent criminal defendants when it comes time for allocating government funds?

But Michael Barrett, the director of the state's public defender office, had an idea. Relying on an obscure Missouri law, Mr. Barrett ordered the governor, an attorney, to represent indigent defendants in Missouri. That took some balls.

We'll have to wait to see if Mr. Nixon actually has to get his hands dirty dealing with the public. But, even if he finds a way to wiggle out of his obligation under the law, the symbolism of Mr. Barrett's actions speaks volumes.

One way to reduce indigent defense bill

So you think it's hard to get a court-appointed attorney in Harris County. There are judges who will tell defendants who have been able to scrape up enough money to post bond that they have to sell everything they own before an attorney will be appointed for them.

Nevermind that in most cases the bond money was put up by family members or friends and not by the actual defendant. In Harris County, if you're not wearing an orange jumpsuit when you ask for an appointed attorney you have a very hard road to hoe.

The judges know there are plenty of attorneys who will take cases on the cheap and plead their clients out on the first or second setting without ever investigating the case. The judges seem to have no idea what it actually costs to hire an attorney in Houston who's actually going to work on your case. The result is a whole lot of folks with convictions on their records who may have stood a good chance of having their cases dismissed or the charges reduced after a little bit of legwork on the part of their attorneys.

But, hey, it clears another case of the docket and that's a good thing. Right?

In McLennan County (that would be Waco for those of y'all not familiar with the lay of the land), they have taken the denial of counsel one step further. If you want to have an attorney appointed to handle your case you have to fill out an application. That application will then be investigated by a sheriff's deputy who's going to come to your house and take a look around to see if you're really as indigent as you say you are.

Now, just a word of warning here. There are those of us who practice criminal law on a regular basis who would be very hard pressed to come up with a retainer fee on a felony case. I know plenty of attorneys who do quite well who would be considered indigent if they were charged with a felony in federal court.

What's really going on up in Waco is the courts are trying to make it harder and harder for those accused of serious crimes to defend themselves. Just because someone was able to borrow money from their parents or their grandparents to post bond doesn't mean they have the money to pay an attorney. Parents and grandparents will often do whatever they can to help out their wayward children and grandchildren - but you can't expect them to pick up all the bills.

In sending out a sheriff's deputy to investigate those seeking appointed counsel, the courts are doing their best to intimidate those who are able to post bond not to ask the county to pick up the tab for their lawyer. To make matters worse, officials like to brag about arresting folks on felony charges of falsifying government documents when they make a questionable statement on their application.

As I said yesterday, if the county is concerned about the amount of money they're spending on appointing lawyers for indigent defendants, then maybe law enforcement officials and prosecutors should think twice before arresting folks or filing charges. A little discretion here and there can go a long way to reducing the county's legal bills.

Now I don't think I'm going out on a limb here but I would imagine that the number of black defendants asking for appointed counsel is probably disproportionate the African-American population in McLennan County which means this investigation program is just another tool for the state to discriminate against blacks.

The worst thing about the article is the way in which the writer is all rah-rah with the police and court officials. Nowhere in his piece does he even raise the question of whether this program serves to deny folks their constitutional right to counsel when the state is attempting to take away their liberty. I guess being a sycophant is much easier than being an actual reporter.

For those of y'all who wish to let the reporter know what a great job she did regurgitating the Sheriff's PR release, her name is Stephanie Butts and her e-mail address is sbutts@wacotrib.com. Here's her LinkedIn profile.

Too good for your own good

A public defender's office is a strange bird. It's created and funded by the same entity that is doing its damndest to restrict the liberty of the citizenry. Its lawyers are often idealistic and dedicated to the notion that everyone is entitled to a vigorous defense - yet its administrators must answer to county or state officials.

If a PD's office is "too good" at doing its job, many will walk free thanks to their efforts; but that won't sit well with government officials who must oversee the office. All it takes is a little less funding her and a smidge less over there and suddenly the work load is too much for the attorneys.

If the courts have any say in the matter they damn sure don't want more cases clogging their dockets. Judges want to move cases so they can get out of the courthouse in time to make cocktail hour before dinner. The last thing they want is the prospect of more cases going to trial.

To find out what happens when a public defender takes his oath, and his duty, seriously, all we need to do is look to Couer d'Alene, Idaho, where John Adams has been told that his services aren't needed anymore. Apparently providing a vigorous defense to those charged with criminal acts up there isn't part of the new job description drafted by county officials.

And, as if to add insult to injury, the decision to tell Mr. Adams to take a flying leap was made after he informed county officials that he had cancer and would need to take off one day a week for chemotherapy.

You see, that's the way to emphasize the point that the public defender's job isn't actually to defend the accused who can't afford to hire an attorney - the job is all about making it appear as if the county is abiding by the Fair Defense Act. For, while Gideon says that everyone accused of a crime in which jail time is a possibility is entitled to a lawyer, it certainly doesn't say how competent or effective that attorney must be.

That's why every jurisdiction around this country has sought ways to reward those who do the bidding of the local masters. Whether that be by hiring contract attorneys to handle indigent cases or by bidding contracts to the lower bidder; whether that be by ensuring that the "wheel" spins to those willing to move cases by the bucket or by cutting funding and staffing in PD's offices - state and local governments want their convictions on the cheap.

The sad thing is there is no solution to the problem. So long as indigent defense is provided and funded by the state, there will always be an inherent conflict of interest. The same government that arrested and locked up a defendant has no interest in seeing that defendant released from beneath the state's thumb. Unfortunately there is no alternative method of funding indigent defense. We should look with suspicion at the indigent defense plans of every jurisdiction in this country because that conflict cannot be made to vanish with the waving of a wand or a print out of a case.

See also:

"John Adams, meet John Adams," Gamso - For the defense (March 24, 2013)

The reality of Gideon

If there is one thing we like to do in this country it's celebrate numbers. This week marks the 50th anniversary of Gideon. Of course the problem with Gideon is the Supremes didn't specify what kind of representation the indigent would get and it left it up to local jurisdictions to figure out how they would comply with the mandate.

Gideon  also failed to address what relief a defendant would have should he not feel his court appointed lawyer was providing competent and effective representation. What it means is that beggars can't be choosers - in other words, those who can afford to retain counsel can switch attorneys at the drop of a hat but that indigent defendant sitting behind bars is stuck with the one the court appointed to dance with him.

The decision also left us with a patchwork quilt of methods for appointing counsel. In Harris County alone there are some courts who appoint private attorneys to represent the indigent off a list. Other courts contract out their indigent defense. Still others utilize the services of the public defender's office.

Yesterday on Talk of the Nation was the current crisis in indigent defense. The guests were Stephen Bright of the Southern Center for Human Rights and Colorado state public defender Douglas Wilson. The clip below is from the show and is quite enlightening about the failures of our criminal (in)justice system in the 50 years following Gideon.



For those of y'all who've never practiced criminal law in Harris County, the reality of Gideon is jarring to the conscience. Each and every day in the misdemeanor courts up to two dozen men, mostly black and Latino, are placed in a holdover cell behind the courtroom. Generally each court has two attorneys designated to handle the indigent cases each day. The basic definition for indigence in Harris County is not being able to post bond prior to the initial settings (generally 48-72 hours after arrest).

The attorneys grab their files and shuffle through the paperwork. Then, sometimes before even going back to talk to their clients, they sit down with the prosecutor and try to work out pleas on the cases. Then the dog-and-pony show begins as they try to sell their "client" on the deal. There's no investigation. There's no thought to challenging the state's case. It's all about trying to get the client out of jail in the shortest amount of time.

Now I don't mean to impugn anyone's reputation and I certainly don't mean to imply that this is how every court appointed attorney in the misdemeanor courts acts.  But this is the reality of Gideon.

Then, once all the pleas are agreed to and the paperwork is signed, it's time for the parade. Defendants are brought out into the courtroom, all handcuffed to one another. There are generally at least half a dozen defendants standing before the judge - though I have seen them lined up in two rows before. The judge then begins the assembly line process and each defendant dutifully admits guilt and accepts his punishment.

They are then marched back to the holdover and the whole process repeats itself the next day. And the day after that. And the day after that...

In practical terms what Gideon has become is the gloss we use to cover up the imperfections. It's a show. There's no effective representation. It's a game to see who can clear the most cases and who can get out of jail the quickest.

The judges don't mind because it clears their dockets. The county administrators don't mind because it's cheap. And, hell, the plea papers the defendants sign already state that the defendant is satisfied with the representation he received. It's a complete fucking sham.

Over at Sentencing Law and Policy, Doug Berman had an interesting piece (well, he quoted extensively from someone else who wrote an interesting opinion column) asking whether Gideon ushered in the new era of the drug war and mass incarceration.

Now the argument strikes me as an almost doctrinaire libertarian approach to government involvement in anything - government steps in to solve a social problem, creates a moral risk and the world goes to hell in a handbasket because of it. Who's to say if these things wouldn't have happened anyway. Whether Gideon enabled them is neither here nor there. What Gideon has done, however, is put a shade of legitimacy on our government's continued war against the poor and minorities.

As a result of Gideon, our criminal (in)justice system resembles the storyline of one of the myriad of movies detailing the social breakdown in suburbia (American Beauty comes to mind). Everything is all glitzy and beautiful at first glance - but god help you if you take a closer look.

The numbers don't lie

Thanks to Robb "The Czar" Fickman, a constant pain in the side for the established order in the Harris County criminal (in)justice system, we know the caseloads for every lawyer who accepted a court-appointed case in Harris County in 2011.

We also know how those caseloads compared to the National Advisory Commission's recommended guidelines.

What we see is a pattern of certain attorneys commanding a lion's share of appointed work. Harris County supposedly uses a series of methods to appoint counsel: some courts have contract attorneys, some courts use the Public Defender's Office (not an option in 2011) and other courts use "the wheel." The wheel is supposed to assign attorneys randomly to courts and/or cases.

The numbers revealed, as Mr. Fickman points out, that it's the judges who control the appointment list in Harris County. And, as anyone who has ever practiced criminal law knows, the most important priority for a judge is to move cases off the docket. And those cases don't get moved by taking them to trial and holding the state to its burden of proof. Those cases get moved by pleading them out - one after another.

Those who play the game are rewarded. As Mr. Fickman puts it

The Harris County Criminal Appointment system is controlled by the judges. It is their creation and it is a wretched creation.  Favored lawyers who are known to move cases are given an obscene number of court appointments.  Lawyers who work hard on cases, who do their job are given a much smaller number of cases.  The result is a small group of lawyers, handling an exceedingly large number of cases.  Likewise, the result is a large group of lawyers,  who are competent, are not given enough cases.  This is not a matter of opinion. This is a matter of fact. The fact is demonsrated by the link that I am providing. Look AT IT!! It will show you lawyers that are handling 2, 3 and even 4 times the national recommended number of cases. 

Gerald G. Acosta had the highest caseload in 2011. He received 255 juvenile appointments, 387 misdemeanor appointments and 278 felony appointments. That works out to a total of 920 appointments during one calendar year. If Mr. Acosta worked year-round that means he received just under 18 criminal appointments per week and 3.5 per day.

According to the NAC, that caseload is more than four times the recommended maximum caseload for an attorney. There is no way that anyone can convince me that it is possible for one attorney to provide effective representation to that many clients over the course of one year.

David L. Garza came in a close second with 599 misdemeanor appointments and 295 felony appointments for a total of 894 appointments in 2011. That works out to just a shade over 17 appointments per week and just under 3.5 a day.

His caseload was 3.5 times that recommended by the NAC.

In third place was Ricardo N. Gonzalez who received 44 misdemeanor appointments and 463 felony appointments in 2011 for a total of 507 cases. That would be almost 10 appointments per week and just about two per day.

His caseload was 3.2 times that recommended by the NAC.

Humberto Trejo was number four. Mr. Trejo received 470 misdemeanor appointments and 278 felony appointments for a total of 748 appointments. That comes out to a little over 14 appointments a week and almost three a day.

Mr. Trejo's caseload was three times that recommended by the NAC.

And rounding out the top five is Kerry H. McCracken. Ms. McCracken received 419 felony appointments in 2011 which works out to eight appointments a week and a little over 1.5 per day. Her caseload was 2.8 times that recommended by the NAC.

Given those caseloads, just what do you think the odds are that a case is going to receive a proper investigation? It is physically impossible for an attorney to do the work necessary to defend that many clients in a year. The result is a parade of pleas every day down at 1201 Franklin.

The system is broken beyond repair. The judges cannot be trusted to manage it. They have a built in conflict of interest. The decision who to appoint must be taken out of their hands and placed in the hands of someone who has no interest in who is appointed. As things now stand, if you are poor and cannot afford to post bond, you are more likely to be pressured into pleading than fighting.

So long as the system remains as is, there will be no justice for indigent defendants in Harris County.

The assault on indigent defense down on the island

For the latest assault on indigent defense we go down the road to Galveston County where judges will vote on changes to the county's indigent defense program this month.

According to scuttlebutt, the new policy will include a strong suggestion that three hours is appropriate for a misdemeanor case resulting in a plea. That means three hours to consult with the client, review the state's file, investigate the facts, interview witnesses, consult with the prosecutor and appear in court for the plea.

If the judges intend to question vouchers should an attorney ask for more than three hours compensation for a plea bargain case, they are taking direct aim at the notion that an indigent defendant is as entitled to a vigorous defense as a client who can afford to hire counsel.

If the idea is to cut the amount of money the county spends on appointed counsel in misdemeanor cases, the result will be a much more efficient plea machine on the second floor of the county courthouse. If attorneys are going to have to fight to be compensated for more than three hours on a plea bargain case, the plan creates an incentive for a race to the bottom.

Why spend the time working up a case when you can be paid just as much sitting on your ass doing nothing just waiting for the next court date to plead your client out? Everyone who has practiced for any time in Galveston knows that when the basis of the stop is criminal trespass or not walking on the sidewalk, that something foul is afoot.

I once had a minor dope case in which the reason for the stop was my client walking in the street and not on the sidewalk. After viewing the area of stop on Google Maps and then driving through the neighborhood, imagine my surprise that there wasn't a sidewalk to walk upon. My client's case was dismissed, but, with another attorney and the presumptive three-hour rule, what fate might the young man have faced?

Of course the adequacy of defense that an indigent client receives isn't of much concern to the judges. Indigent defendants don't make up a political bloc that candidates have to attract in order to win the election. The judges are aiming for higher income voters in the suburbs in the northern half of the county - and those voters don't give a damn about poor black or hispanic youth on Galveston Island or just over the causeway.

With the new Republican majority in Galveston County, there is no constituency that will be in arms about the state of indigent defense. And with no one to stand up for the poor, there will be no one to challenge the judges as they push to gut indigent defense.

Since around 90% of criminal cases end in plea bargains, this race to the bottom will only serve to eviscerate further indigent defendants' right to (effective) counsel.

Indigent defense under attack again

You know the drill.

You have the right to remain silent. Anything you say can and will be used against you. You have the right to an attorney. If you cannot afford an attorney, the court will appoint one for you...

And who pays for those attorneys? The taxpayers do. And with counties and states looking to slash budgets due to reduced revenues, fees for court appointed attorneys are among the first to go. And local governments have to find ways to pay for those tax breaks and other goodies they toss at corporations to set up shop in their backyard.

Down in Florida the legislature decided to move away from paying appointed attorneys by the hour and to institute flat fees for certain criminal cases.

Not that there's anything inherently wrong with flat fees. Most of us charge a flat fee because we know it's about the only way we know we're going to get paid. Of course we charge what the market will bear.

Not so for court appointed attorneys. The state set the fees low. Very low. So low, in fact, that the fees serve only to discourage appointed attorneys from defending an indigent client with the same level of vigor as a paying client.

The Palm Beach Post gives us the story of Joe Walsh, a criminal defense attorney who took over a case when the original attorney appointed to handle the matter became ill. Mr. Walsh spent 40 hours on the case and his client ended up walking out of jail with time served on an aggravated battery charge.

Mr. Walsh's reward from the State of Florida was a check for $1,000 that he will have to split with the original attorney.

Normally, Walsh would have charged a fee for his work as a private attorney who takes court-appointed cases when other lawyers cannot. But now, because Florida this year created a small registry of court-appointed attorneys who will be paid flat fees, Walsh must split $1,000 with the previous attorney assigned to the case — taking home less than a third of what he would normally make. 

“It’s sad, because the legislature is putting financial concerns over a defendant’s constitutional right to representation,” sadi Walsh, whose offices are in West Palm Beach. He would have been paid $5 to $10 per hour for his work if he applied the new fees to some of his old cases. The state’s minimum wage is $7.67 per hour. 

The push behind the new law, which lawmakers passed in March and went into effect July 1, was to lower the amount of state money paid to private defense lawyers. State records show the state paid $6.5 million over its original $3 million budget.

No one can afford to work under such conditions. And that's exactly what the Florida legislature counted on. The low flat fee serves only to encourage appointed attorneys to plead their client's cases out as soon as possible. After all, if you're already being underpaid on a case, why go any further than you have to?

The Florida Association of Criminal Defense Lawyers knows this and that's why they filed an objection with the head of the Miami-Dade County Circuit Court. Such a scheme makes a mockery out of a criminal defendant's right to, not only, counsel, but effective counsel.

As Karl Marx might have said, this is the inherent contradiction in the state providing attorneys for criminal defendants who can't afford to hire one on their own. Indigent defendants have a right to be skeptical of their appointed counsel knowing that their attorney is being paid by the same people who are prosecuting him. As long as we leave the cost of appointing attorneys to state and local government there will always be a tension between the state's desire to prosecute and that state's obligation to appoint counsel. And we all know who comes out ahead in that fight.

When states and counties talk about improving the efficiency of their indigent defense programs they are really talking about reducing the cost of appointing attorneys and increasing the number of pleas. And whether this be accomplished by low flat fees, ridiculously low hourly rates or increasing caseloads on public defenders is quite immaterial to those who control the purse.

Juvenile judge critical of public defender

Well here's a surprise - a judge who doesn't care for the Harris County Public Defender's Office. Could it be that Judge John Phillips (presiding judge over the 314th Judicial District Juvenile Court) doesn't like not being the one pulling all the strings in his courtroom?

His argument is that it costs more money to use the PD's office to represent an indigent juvenile that it does to use a court-appointed attorney. That statement may or may not be true. Alex Bunin, the head of the PD's office, claims the numbers Mr. Phillips is using were based on a feasibility study and that the actual numbers are comparable.

Maybe the real issue is that with a fully funded PD's office there is a real check on the power of the bench and the DA's office in juvenile court. No longer can the DA and the court gang up on a defendant and force him to enter a plea.

Of course Judge Phillips can no longer favor his friends and supporters with court appointments and that seems to have the surprising effect of reducing the number of quick pleas in his court. Mr. Bunin has assembled, quite possibly, the best criminal defense firm in Texas over the past year and they have the time and energy to fight against injustice. And, for at least the next three years, the funds.

I have never believed that the Harris County PD's Office was set up by county commissioners to provide a powerful advocate for indigent defendants. I believe the office was set up because enough questions had been raised about both the level of competence and cost of the appointed system used in most Harris County courts. The PD's office was seen as a more economical way of obtaining mass pleas while providing cover for the county under the Fair Defense Act.

With the staggering number of reversals on appeal and trial wins by the PD's office, it will be interesting to see what happens when the county is left footing the bill for the office. How enthusiastic with county commissioners be to write a check to pay for a group of attorneys who will actually put up a fight? Is the purpose of the PD's office to provide an effective defense for the indigent - or to plead more cases on the cheap?

We'll know the answer when the grant money runs out.

Buddy, can you spare some time?

Recently a member of the Harris County defense bar penned an article taking a critical look at public defenders' offices. And, somewhat predictably, those employed by the Public Defender's Office were up in arms about the perception that indigent defendants might not be getting the legal representation they deserve.

Clay Conrad wrote that public defenders are too overworked to provide the level of representation called for. Mr. Conrad points out that the main problem facing public defenders is caseloads that are too heavy.

Overloaded defenders are forced to triage, exchanging quick pleas in some cases for the ability to fight in others. They have to decide which cases will benefit from extra attention and which will not. Cases are "pied out" without time to conduct a real investigation, interview witnesses, or even determine whether there are grounds to challenge the police version of the facts.

Per ABA Guidelines, attorneys should not handle more than 150 felonies a year. But what does it mean to handle that many felony cases a year? That works out to three felony cases a week -- each and every week. Assuming a 40-hour work week, that means just 13 hours per case. That thirteen hours includes court time, jail visits, witness interviews, research and motion drafting. It doesn't take into account trial prep and trying cases. It also doesn't take into account meetings, continuing education, lunch, vacation and sick time.

Does that sound like enough time to handle a case adequately?

The lack of time to work a case puts pressure on everyone to dispose of other cases as quickly as possible. Which cases just get the "once over" and which cases get further work? How are those decisions made? Whose lives are affected because there aren't enough hours in the day?

But it is not always easy to know which cases are the hopeless ones if all you do is read the offense report and spend a few minutes talking to the defendant and the prosecutor. Without putting in the time required to investigate the facts, the law, and the witnesses, it is unethical to recommend that a client accept a plea bargain. Maybe the offer represents the best possible result, but maybe the client is completely innocent and just too frightened to disagree.

I know many of the lawyers in the Harris County Public Defenders' Office and they are very good at what they do. They care and they want to make a difference. But idealism and energy can't make up for lack of time and money.

What happens when Harris County decides it's time to cut the budget? Indigent defendants aren't a large voting bloc in Harris County. Trim a little here. Cut a little there. At some point the ABA Guidelines will be tossed aside in the name of keeping the operation within its allotted budget. At some point there will be pressure to "work out" more cases in order to keep costs down.

It's hard to serve two masters.

Let's make a deal

I ran across this tasty morsel on a listserv to which I subscribe...

A fellow lawyer advised me today a district attorney offered to dismiss his client's case if the lawyer would waive his court appointed attorney fees. Lawyer has put in a lot of time and energy on the case. Lawyer feels like he has been put in a bad spot by the district attorney and doesn't know what to handle this. 

Any suggestions?

Here's a suggestion. File an ethics complaint against both the prosecutor who made the "offer" and the district attorney. By making such an "offer," the prosecutor is violating his ethical duty to see that justice is done. If the case deserves to be dismissed, the case should be dismissed. End of story.

Would this prosecutor have made the same "offer" to the attorney if it were a retained case? If, as I suppose, the answer would be no, then you have an argument that the prosecutor and, by extension, the district attorney are violating the Equal Protection clause of the 14th Amendment as the indigent client is being discriminated against because of his economic status.

Such actions also violate a persons's 5th and 6th Amendment right to counsel. By placing such an "offer" on the table, the prosecutor is creating a disincentive for attorneys to accept appointed cases in that county. If the competent and experienced attorneys refuse to accept court appointments, the right to counsel becomes a hollow promise.

Maybe the district attorney should take a closer look at the cases the office chooses to prosecute. Maybe the weak cases need to be cast aside. Trying to balance the county's budget on the backs of indigent defendants is just plain wrong.

Keeping the prosecutor who made the offer on the county payroll is just as wrong. Hell, allowing him to continue practicing law is wrong.

At what point does a budget crisis morph into a constitutional crisis?

According to an article in this week's Texas Lawyer, the bickering between Demopublicans and Republicrats over funding the federal government has put a stop to the payment of vouchers for attorneys taking appointments in federal court.

"Notices prominently displayed on the websites for the Northern District of Texas and the Western District of Texas let lawyers know that the two-week continuing resolution President Barack Obama signed into law extends federal funding until March 18, 2011, but it only provides enough funding to pay for vouchers that were processed but not paid during a recent suspension. 

The government will be unable to pay vouchers received after March 7, 2011. the notices on the Northern and Western Districts state that 'all vouchers that are submitted will be paid when funding is available.'"

At what point does this funding crisis infringe upon an indigent defendant's right to appointed counsel? At what point to private attorneys decide not to take on new federal appointments because of the uncertainty of getting paid?

"There is no doubt in my mind that this development will discourage criminal defense attorneys from accepting criminal appointments in the federal justice system going forward. We have overhead, we have staff, we have rent, we have families, we have health insurance, and to ask a private practitioner to forgo payments for services rendered for an indefinite period of time is untenable." -- David Finn, Dallas criminal defense attorney

The federal courts rely on private attorneys to take on cases so that the federal public defenders aren't swamped with too many cases. Without private attorneys willing to take on federal appointments, los federales would have to increase the number of public defenders -- something that is more costly than doling out cases to private attorneys.

Of course it doesn't help that there is no effective lobby for indigent defendants across this country. My guess is that, give a choice, most Americans would cut back on funding for indigent defense before cutting back on any programs near and dear to their hearts.

But this isn't just politics as usual. We're talking about our Sixth Amendment right to counsel - a right that belongs to all of us, regardless of our economic or social status.

Just another cover up

A Florida judge approved a cosmetologist's $125 per day charge for covering up the tattoos of a man accused of murder. Mr. John Ditullio has acquired multiple tattoos, quite a few on his head and neck, since being jailed  for a 2006 murder.

Among the pieces or art needing to be covered up were a large swastika on the right side of his neck, a crude insult on the left side and barbed wire running down his face. Said his defense attorney, Mr. Bjorn E. Brunvand,

“It’s easier to give someone who looks like you a fair shake.”

Mr. Brunvand has a very valid point. I think it would be quite difficult to get a jury of twelve folks to disregard the elephant in the room at trial. No matter how you dress Mr. Ditullio up and no matter how much you build up his reputation, those tattoos are just screaming out that he's one bad dude.

Everyday at the courthouse I see people with tattoos on their necks. I see folks milling in the elevator lobby dressed up like gangbangers and dope fiends. I'm sure that some of them really just don't give a damn about what's going on. No one inside the courtroom is going to take them seriously. Their pleas will fall upon deaf ears.

I know an attorney who had a client with a shaved head full of tattoos. He told his client he was going to grow his hair out and leave it that way until his case was resolved.

In an era when states and counties are trying to keep down the cost of indigent defense by slashing vouchers and denying requests for funds for investigators, why did the court approve this expense? Mr. Ditullio certainly wasn't attacked by a mob of inksters, he chose the art and he chose his canvas. His appearance was his own creation.

Maybe the argument is that a defendant who could afford to retain private counsel could also afford a makeup artist who could cover up the tattoos and that should the court deny the request, Mr. Ditullio could have grounds to appeal a conviction (a mistrial was ordered the last time the case was tried).

The only thing is some wounds are self-inflicted.

County approves hybrid public defender's office

Harris County commissioners yesterday approved a proposal to create a hybrid public defender's office that would handle felony appeals and misdemeanors involving mental health issues. The creation of the office is dependent upon the county getting a $4.4 million grant from the state. According to Ms. Caprice Cosper, director of the Criminal Justice Coordinating Council, within two years the PD's office should be handling about 6400 cases. That figure would include about half of the felony appeals filed, a quarter of the juvenile cases and a smaller share of other felony and misdemeanor cases.

The new office would not replace the current hodge-podge system used in the county for appointing counsel for indigent defendants in which some courts use a "wheel" to assign attorneys while others use contract attorneys (shall we talk about the appearance of a conflict of interest?).

Precinct 1 Commissioner El Franco Lee praised the new proposal as a tool to ease jail overcrowding. Someone might want to let Mr. Lee know that this new plan won't have any affect on speeding up cases. The only possible  outcome that might ease overcrowding is getting defendants with mental health issues out of the county jail and into a treatment facility.

County Judge Ed Emmett said the new office could result in savings to the county in the event that fewer defendants are convicted due to poor representation. But wait just a minute - the new office won't take over defending indigent persons in Harris County. I guess that's just a minor detail that slipped Mr. Emmett's mind as he plans his next speech from Transtar headquarters during hurricane season.

The county plans to ask the state for a grant to fund the office through 2014. After the grant phases out, the county will pick up the tab, estimated at $7 million a year. So the county can't (or won't) foot the bill to create the office but four years down the road will set aside enough money to keep the office operational? No one on Commissioner's Court has any idea what the economic conditions will be like in 2014 or beyond. What effect will the economy have on property values and tax collections? How long until the county tells the head of the PD's office that the budget needs to be cut, case loads need to be increased and dockets need to be reduced?

Harris County seeks funding for PD's office

Harris County Commissioners have requested a $4.4 million grant from the State to fund a public defender's office that would handle appeals on felony cases for indigent defendants and misdemeanor cases involving mental health issues. The plan calls on the PD's office eventually to take on all felony and juvenile appointments.

Proponents of a PD's office say it will upgrade the quality of representation for indigent defendants in Harris County and will remove some of the abusive practices currently seen at the Harris County Criminal (In)justice Center. Gone would be the days of defense attorneys pleading out their clients in order to curry favor with the court (and secure more appointments). The public defender will fight more aggressively in defending his client that a court appointed attorney would. While they're at it, the PD's office should be able to reduce greenhouse gas emissions, implement universal healthcare and cure cancer.

Well, not exactly. A PD's office will be at the mercy of Harris County Commissioners who will decide how much funding is needed for indigent defense -- and let's not forget, the political power in Harris County resides largely in the right-leaning Republican suburbs; hardly a breeding ground for discontent over the violation of the constitutional rights of a person alleged to have committed a crime.

Then there's what happened up in Dallas County in 2008 (See "Common Clashes: Politics, Pressure and the Public Defender's Office" Texas Lawyer, July 7, 2008).

Let's see... the State of Texas brings criminal charges against an individual alleged to have done something wrong. The prosecutor is employed by the Harris County District Attorney's Office -- funded by Commissioners' Court. With a PD's office, the same entity that is prosecuting indigent Johnny Rotten will also be employing Mr. Rotten's attorney. What happens when the county needs to cut its budget? What happens when the Harris County Jail is packed to the gills with indigent defendants who can't post bond and who won't plead their cases?

I'm not thinking indigent defendants make up much of a constituency in the 'burbs.

See also:

"What, Price justice?" Dallas Observer, July 10, 2008
"Broken Cogs" Dallas Observer, Sept. 11, 2008

Welfare, Harris County-style

So it looks like Harris County and the City of Houston have agreed on a plan to foot part of the costs for a stadium for the Houston Dynamo just across US59 from Minute Maid Park. The stadium will also be used for TSU football games (seriously, they still play football over there?)

Now it's all nice and good that the city and the county have each agreed to spend $10 million on infrastructure improvements in the area - but isn't this the same county that just cut funding on indigent defense? Somehow the county can find the money to build a sandbox derby track, a man-made lake in Katy and a soccer stadium, but they insist on reducing the amount of money paid to attorneys to represent indigent defendants.

Oh, the deal also calls for a financing district to be created in downtown that will fund the construction of a new inmate processing center -- even though the voters of Harris County have consistently voted against building a new jail.

Welfare? Well, hell, we're all for it in Harris County -- only we take the money from the poor and hand it over to the wealthy.

You say you want a PD's office...

So you want a public defender's office in Harris County, do you? Who's going to fund it? Who's going to decide on the level of funding? Who will decide how many cases a public defender can handle?

The state of New York has a public defender system that entails local Legal Aid Societies, public defender's offices and private attorneys who take criminal appointments. That system is under fire and facing a class action lawsuit alleging that indigent defendants are not be given adequate, competent legal representation.

The New York Court of Appeals is scheduled to hear arguments on whether class-action status should have been granted in the suit. Ironically, the state of New York is now defending a system that the state's own Commission on the Future of Indigent Defense Services found did not provide adequate representation in 2006.

The ultimate question with public defender's offices is whom do they serve? Their clients are indigent criminal defendants, but the very entity seeking to take away their freedom is funding their operation. Is the job of the public defender to insure that indigent defendants receive adequate and competent representation - or to manage a budget?

Stadium trumps indigent defendants' rights

So while Harris County commissioner decided the county did not have enough money to continue funding indigent defense at its current levels (see "Indigent defendants take a hit"), the county was able to find enough money to go into a joint venture with the City of Houston and the Houston Harris County Sports Authority to build a new stadium for the Houston Dynamo.

Now I'm a soccer fan. I watch it, I coach it and I play it. But, if the county insists that payments to attorneys appointed to represent indigent defendants must be reduced, how does it find the funds to help build a stadium for a privately-held entity?

I've heard all the arguments about how it will revitalize the east side of downtown and create new jobs, blah, blah, blah. Those are the same arguments trotted out anytime someone wants to build a new stadium. The truth is the building of a stadium just takes money out of one set of hands and transfers it to another set. A more glaring truth can be seen down at Reliant Park - where, oh where, is the promised economic development along South Main and the South Loop? The only difference I've noticed is the huge empty lot across the freeway where Astroworld once stood.

If building stadiums made economic sense the owners of the franchises would have no problem rounding up investors to buy the land and build the playground -- the very fact they are asking the city and county to get involved tells me that the owners of the Dynamo couldn't convince enough people in the private sector to put up their own money.

And when the choice is made that it is more important to help build a stadium for a professional sports franchise than it is to see that indigent defendants are provided their Sixth Amendment right to counsel, that tells you something about the priorities of the politicians and their constituencies.

All in the name of judicial economy

Former State District Judge Robert Gill had a novel method of moving his docket along. In a 14-year period, Gill handled almost 8,000 probation revocations. His method? As he would say, cutting out the middleman.

And who was the middleman? The prosecutor from the Tarrant County District Attorney's Office.

Tarrant County criminal defense attorney William Ray testified under oath in federal court that the judge would negotiate his own plea deals and if a defendant rejected the offer he would hear the case and, if the allegations were proven, order a more severe sentence.

Mr. Ray's testimony came in a habeas hearing that resulted in a conviction being vacated due to ineffective assistance that he rendered.

According to the chief of the criminal division in the DA's office, Alan Levy, the district attorney was well aware of how things operated in Judge Gill's court. He said that even though the practice was not the norm in Tarrant County, the case load moved rapidly and "the sentences seemed to fit the offenses." As it turns out, about 60% of probationers brought before Judge Gill had their probations revoked.

Apparently not too many attorneys complained about the practice, least of all Mr. Ray who pocketed over $1.3 million in court appointments over the last five years. Mr. Ray was also Judge Gill's largest campaign contributor in 2004 -- even though Gill was unopposed.

Robert Gill retired from the bench in 2007 and is a deputy chief with the Tarrant County DA's Office.

For fourteen years defense attorneys allowed this to continue. Why? Was it fear of not getting appointments? Was it fear of pissing off the judge? Was it laziness? Or was it pure cowardice?

Injustice continues only because we stand aside and let it. This is how we've always done things. Don't rock the boat. You've got to go along to get along. This injustice only came to light because Sandra Wilson, a defendant with a history of mental problems, stood up and fought.

Indigent defendants take a hit

In its infinite wisdom, Harris County Commissioners' Court has decided to balance its budget on the backs of indigent defendants. The new policy on compensation for appointed counsel represents a one-third cut for attorneys taking court appointments.

The old policy allowed appointed counsel to bill the county for up to three cases a day. The new policy states that appointed counsel will only be paid for two cases a day. In addition, if an indigent defendant retains other counsel, the appointed attorney will not be paid for an appearance if he is substituted out. Nevermind that the attorney had no knowledge of the substitution at the time he entered the courthouse that morning.

Oh well, it's not like indigent defendants comprise a large voting constituency for county-wide elections.

Who is indigent in Harris County?

It is a rarity in Harris County for any defendant who is out on bond to receive appointed counsel. There is even one judge in the Criminal (In)justice Center who will tell a (bonded) person seeking appointed counsel that he must sell every non-essential item in his possession and show that he still cannot afford to hire an attorney before the judge will appoint one.

Nevermind that the purpose of bail is not to punish a person but is, instead, a means of guaranteeing his appearance in court.

On December 3, 2008, the Harris County Criminal Courts last amended their Standards and Procedures [for] Appointment of Counsel for Indigent Defendants pursuant to the Fair Defense Act.

1.0 Financial Standards for Determining Indigency

The indigency standards adopted by the judges shall apply to each defendant equally, regardless of whether the defendant is in custody or out on bail.

1.1 A judge shall consider the following criteria as incorporated by the form adopted by the board of judges in determining whether a defendant is indigent:

1.1.1 defendant's income;

1.1.2 source of income;

1.1.3 assets;

1.1.4 property owned;

1.1.5 outstanding obligations;

1.1.6 necessary expenses;

1.1.7 the number of ages of dependents; and

1.1.8 spousal incomes available to defendant.

1.2 The judge shall not consider whether the defendant has posted bail, except to the extent that it reflects the defendant's financial circumstances.

In Galveston County I have been appointed to represent many a defendant who has posted bond, yet is still eligible for "appointed" counsel (much more on this topic later); yet in Harris County most of the client's for the appointed attorney are still donning the orange jumpsuits of the Harris County Jail.

Many of the misdemeanor defendants were charged with nonviolent offenses yet were denied personal bonds due to the magistrates' strict obedience to the Harris County bond schedule (misdemeanor and felony). The denial of personal bonds (and the subsequent refusal to request one) lead to the mass plea in which defendants "voluntarily" waive their rights to trial by jury, confrontation and appeal in exchange for time served so they can get out of jail and back to their families or jobs.

Convictions based upon expediency and judicial economy -- not on the merits. That's not justice.