Friday, October 20, 2017

Quick Additional Thought on Indigent Defense

One thing that I thought of after I finished last night's post was the timing of vouchers.

Since I've been practicing on the defense side, the rule was that an attorney could not submit a voucher for payment on a case until that case was disposed of.  Theoretically, an attorney could work on a case for well over a year and never get paid for it until it was over.  Under that same theory, an attorney could have no money in his or her bank account, while the County owed him thousands of dollars in fees.

This made a bit more sense prior to vouchers becoming electronic.  Previously, attorneys would have to handwrite out the case number, name, court, and manually write down all hours and court appearances.  That voucher then got submitted to the Court for approval and then sent on to the Auditor's office (who would presumably enter the dates into a computer).  Once entered into the system, the computer would check to make sure that an attorney had not double-billed or tried to claim payment for too many cases in a single day.

That was a pain in the butt, so it was understandable that the rule was that vouchers only were to be filed once the case was disposed of.

That being said, judges routinely allowed for interim vouchers to be filed upon request of the attorney.  If a case was set for trial, but not for another several months, for example, every judge I ever spoke with had no problem at all with allowing me to file an interim voucher.  All I had to do was ask.

But vouchers are now electronic, which makes life easier for all involved.  Attorney seem to like it better.  Conflicting time entries are caught instantaneously.  Judges can approve them easily and ship them over to the Auditor's office electronically.  It has drastically improved the efficiency and ease of keeping records straight, and it has probably saved a few trees in the process.

In the aftermath of Hurricane Harvey, trials are now routinely being pushed into 2018.  Dockets are also staggered further out.   

I would propose that attorneys be allowed to file interim vouchers whenever they need to, without having to first seek judicial approval.  It is my understanding that those attorneys who take appointments on CPS cases get "paid as they go," and there is no reason that can't be the same for criminal defense attorneys.  Electronic filing of vouchers should have eliminated any confusion or logistical argument against that.

If I'm working on a complicated murder case and I spend two weeks straight going over records and interviewing witnesses, it defies logic that I would have to wait months before being able to seek payment for work already done.  I'm not familiar with any other industry that works that way.  There is no real reason that indigent defense should be handled differently.

Thursday, October 19, 2017

Rethinking Indigent Defense

Tomorrow, the Indigent Defense Committee of the Board of Criminal District Court Judges are having an open meeting to discuss potential changes for "reforming appointed attorney fees."  This is huge news.  Mainly, because I had no idea that there was an Indigent Defense Committee of the Board of Criminal District Court Judges.

The meeting is at 2 p.m. in the Ceremonial Courtroom of the Civil Courthouse on the 17th floor.  Sadly, I will not be able to attend due to a prior commitment, but I did want to share a few thoughts that I had about the way things are currently running in a post-Harvey world.

First, a little background.

The way payment works for attorneys who represent indigent defendants depends on what degree of crime the indigent client is charged with.  Those attorneys representing defendants charged with State Jail and 3rd Degree Felonies get paid $125 for every court setting they appear for, and $40 an hour for all out of court work.  Second degree felony cases merit a $175 fee for court settings with a $60 an hour payment for out of court hours.  First degree felonies get $225 for a court setting and $85 for out of court hours.

The scuttlebutt is the the Indigent Defense Committee (IDC) is strongly leaning toward increasing the pay schedule for out of court hours, but eliminating the flat fee for court appearances.  That is not an unheard of proposition.  It is my understanding that Ft. Bend and Galveston counties do things this way, although I don't know if that is accurate because I don't handle appointed cases outside of Harris County.

My guess is that if this truly is the plan the IDC is looking at, it will meet with some resistance from those who take indigent appointments.  Appointed attorneys tend to like having those court settings because they obviously give larger payouts for less work.  For instance, an attorney can walk into a courtroom on a 3rd degree case, talk briefly with the prosecutor, sign a reset and leave in 20 minutes or less.  Under the current schedule, he or she would make $125.  If he or she was being paid on the hourly scale (at the current rate), he's get paid less than $20.

Just because the appointed attorneys won't be fans of the hourly basis, however, doesn't mean that it is necessarily a bad idea -- especially when it comes to "in custody" cases under the flood conditions.

Right now, things are getting relatively back to normal when it comes those Defendants who are out on bond.  Courts are rescheduling them at intervals similar to those before the flood.  Unfortunately, things are far from normal when it comes to the in custody cases.  Due to safety concerns, all court appearances for "in custody" defendants must be held at the jails.  The males have their appearances at the 701 N. San Jacinto facility while the females are at 1200 Baker Street.

To describe these "jail dockets" as chaotic is a massive understatement.  Due to jail personnel and space constraints, only two courts at a time may operate a jail docket.  Two have a morning shift and two have an afternoon shift.  To make matters utterly confusing, these dockets rotate every several days, so there is no set day of the week when an attorneys knows a certain court will be holding docket. 

The dockets are crowded.  The attorneys typically pool in the infamous Law Liberrry Library, down the hall from the rooms being used as "courtrooms.  In the Library, defense attorneys discuss the cases with prosecutors before stepping out and asking one of the bailiffs to bring an inmate to the courtroom for discussion.  Understandably, there is a backlog.  Only a handful of defendants can be brought out of the holding cells at a time, and the attorneys are not allowed to speak to them anywhere other than the makeshift "courtroom."   Some attorneys wait for hours to talk to their clients.

Attorney Vic Wisner works his triceps in the Law Library while waiting to 
talk to his client.  NOTE:  This was taken before the bookshelves were all 
covered with tarps due to a mold outbreak.

In my opinion, the idea of having regular dockets for in custody defendants at the jail is a foolish waste of time, unless there is a strong indication that a case is going to plead out.  Standing around, waiting to talk to a client, only to reset him is not a productive use of time, nor space.  Unfortunately, due to the bigger payout of a setting fee, attorneys who represent indigent defendants have no financial incentive to reschedule these settings.  Regardless of whether or not anything is accomplished, a setting fee is a setting fee -- even if you are just signing a reset.

If the IDC does change to the hourly fee structure, attorneys representing indigent defendants are more likely to reschedule these non-productive settings, because they will make the same amount of money by working on the case outside of the courtroom.  They can do a jail visit, some legal research, witness interviews, or something that might actually help resolve the case.  Unless a defendant needs to see a judge, there is almost no reason to have them at these jail dockets.

One suggestion, that I do have is that the District Courts have actual settings for these in custody defendants in the courtrooms without the Defendants being thereJudge Velasquez recently scheduled one of my in custody cases on her docket in the 183rd District Court without having my client present and it was extremely productive.  It was not a hectic pace.  I actually had a chance to speak to the prosecutor on my case and go over some evidence that I wanted him to look at.  He had the time to make note of what I showed him and write down some specific discovery requests I had.  

I relayed everything that happened in court to my client later that day, and he was happy to hear about it.  That meeting with the prosecutor never could have happened in one of the jail dockets.  I wish more courts would do this.  If the meeting results in an agreement that resolves the case, it can be set on the next available plea docket.

Back to the fee schedule topic, I do believe that the hourly system will encourage attorneys to do more work out of court to resolve their cases.  It will also discourage attorneys from taking on too many cases for the sole purpose of increasing the number of their appearance fees.

But that may also be a double-edged sword.  

Attorneys who no longer have a financial incentive to increase their court appearances will spend more time in the office, working on the cases that they already have.  As a result, I predict that attorneys will put their names in for new appointments less frequently.  If the money paid for working from the comfort of my office is the same as going to that God-forsaken jail docket, I know which one I would choose.

So, basically, I see pros and cons to changing the payment system.

But, I do hope that the powers that be will consider doing more cases like the 183rd.

Friday, October 6, 2017

Just a Suggestion . . .

Dear D.A. Ogg,

Would you please please please make an office roster that is up-to-date and available on the Harris County D.A. Website?  Those of us in the Defense Bar are doing what we can to reach out to prosecutors off docket, but the people keep moving around.

A nice page added to the website that just stays current with everyone's assignment would be super duper helpful.  If you add e-mail hyperlinks to everyone's name, that would be super cool, too, but I'm not being greedy.

If you could get this up and running as soon as possible, I will be your best friend.

Thanks in advance,
Murray Newman

Wednesday, September 27, 2017

Fun with Securus

In the wake of Hurricane Harvey, I sat down and wrote letters to every client that I was representing who was incarcerated in the Harris County Jail.  In my letter, I gave them a brief summary of the current situation with the courthouses, told them of their current court date setting, and I told them that those dates were highly likely to change in the days to come.  I told my clients that due to limited space, there was going to be little opportunity to talk to them during court settings.  It would be far more practical to discuss their cases outside of court, and if it did not appear that anything would be accomplished during an upcoming court setting, we should reset it.  There was no need for them to be inconvenienced by being brought to court, just to sign a reset and leave.

In the letter, I also reminded them of my policy of accepting collecting phone calls from my clients.  I gave them my phone number as a reminder and asked them all to call me prior to their next scheduled court date.

"Creepy" stock photo of me on the phone.  Published in tribute to my 
social media consultant who really really hates this picture.

And it worked.  My phone started ringing off the hook with collect phone calls, provided by Securus, from my clients.  Sure, it was expensive -- $14.99 for up to 20 minutes, but it was more convenient (not to mention cost effective) than driving to the jail, going through security, and waiting for an attorney booth to open.  I could talk to them about evidentiary issues, plea offers, and scheduling.  Pretty much all of my clients seemed very happy to be able to reach me by phone.

The pre-recorded message that began every call started with something along the lines of this:
You are receiving a collect call from [INMATE'S NAME], an inmate in the Harris County Jail . . . 
It then went on to state the price of the call and how long we could talk, and let me hit a button to bill the credit card that I already had on file. As soon as I was done hitting all the requisite buttons, I was connected to my client.  We could talk court settings and logistical issues, but I cautioned my clients to not discuss the facts of the case over the phone.  Securus doesn't have the best record for honoring that whole "attorney/client privilege" thingy that we all find to be so important.

For the first few weeks after Harvey, things were going pretty smoothly.  Almost all of the clients that I had on imminent dockets were calling.  Communication was good.  I had offers to convey from prosecutors.  If it looked like the case could work out, we put it on a plea docket.  If not, we took it off the docket.  The communication helped get some people out of jail and home.  

That's a good thing.

Two days ago, I got a call from the Harris County Jail, and I answered it.  This time, the message was different.
You are receiving a call from [INMATE'S NAME], an inmate in the Harris County Jail.  If you would like to set up a pre-paid account for this inmate, please press 1.
Well, um, paying for an inmate to talk to me, his or her attorney, is great.  Setting up an account for them to talk to whoever they want to . . . not so much.  Quite frankly, in many cases, enabling a client to talk to non-lawyers is very detrimental to that client's case.  Despite recorded messages warning inmates that calls are recorded and monitored, they still go right ahead and say things that screw up their cases on a regular basis.

But I digress.

Initially, I assumed that the inmate must be dialing out wrong, so I hung up the phone to see what the next call said.  The requirements to set up a pre-paid account persisted.  Eventually, I pressed 1 to see what setting up a pre-paid account actually entailed. I was connected to an actual real person to walk me through it.

I asked the lady on the phone why I could no longer accept collect calls.  I told her I didn't want to set individual slush funds for my clients to call whomever they pleased.  She told me that I had the option of setting up a fund for calls just to me, or I could set up a fund on a per inmate basis.  She said that I must have received "too many collect calls" for a time period and that was why I was being required to set up a fund.

Wait.  What?  I was receiving "too many collect calls"?  Says who?  I'm pretty sure they all went on my office credit card, and the good folks at Securus were being paid what was due.  If anyone had a right to complain about too many collect calls, surely that would be me, right?  She mumbled something about company policy and said that a pre-paid account for me "might" save me money.

Uh huh.   So, I told her that I would agree to set up a pre-paid account for calls to me.  And that's when things got fun.

When I gave her my office number, she told me that number was already on file with another account so I would be unable to set up a pre-paid account.  What's the name of the account that has that number? I asked.  She said she couldn't tell me because it was private.  I assured her that my office number had belonged to me and only me for eight years now.  She told me that I would need to provide proof of my phone number by faxing them a copy of my phone bill in my name.

I told her I would do that immediately and asked her how long that would take.  She told me at least 48 hours.  Securus would "investigate" why someone else would set up an account in my name.

"So for the next two days, my clients can't call me from the jail?"

"No."

"You can't switch back to letting them call me collect?"

"No."

"So, they're just screwed?"

"Until we can investigate and determine that you are the correct number and figure out what happens, we cannot set up an account, sir."

So, basically, I have a number of clients that can't reach me by phone, despite the fact that I sent them all letters instructing them to call me.   I have no doubt that the other account that Securus has linked my phone number to was a mistake made by them. I called Securus this afternoon to make sure that they had received my faxed telephone bill.  The question clearly annoyed the lady who answered the phone.  Faxes go to another department, she said.  The issue would be resolved in 48 hours at the earliest.  She couldn't provide me with any additional information.

In the time that it has taken me to write this post, my office phone has rung with calls from the Harris County Jail no fewer than twenty times -- all of them are calls that I requested, but can't accept. It is frustrating and it's embarrassing.

But Securus is the only game in town.  They have a contract with the jail as they do in many other counties and states across the country.  If you want to use the phone from jail, you gotta go through them.  In doing some background research on Securus, I stumbled across this article, published just two days ago.  Apparently Securus was recently purchased by the owner of the Detroit Pistons.  That's interesting.

What's more interesting were these two paragraphs:
The election of Donald Trump has already given an economic boost to those profiting from mass incarceration. The stock prices of the two biggest private prison builders -- CoreCivic (formerly Corrections Corporation of America) and GEO Group -- doubled after Trump took office.
Companies that charge for expensive phone calls from prisons and jails also won big after Trump's victory. One of the president's first appointments placed Ajit Pai at the helm of the Federal Communications Commission (FCC), who promptly rolled back the agency's 2015 decision to regulate the prison phone industry. The companies hailed it as a victory.
An incarcerated inmate's inability to reach his lawyer by phone may not seem like that big of a deal to those not directly affected by it.  Yes, I'm aware that they can still write me and I can go visit them.  But there is something so fundamentally flawed about a private company not only having the ability to charge exorbitant amounts of money for phone calls between an attorney and a client, but to stop those calls altogether.

It is a sad day when the 6th Amendment gets trampled on -- not by a judge, a prosecutor, or police officer -- but by a price-gouging private company handed a monopoly as part of the Prison Industrial Complex.

Jury Assembly Room, We Hardly Knew Ye

I was kind of surprised to read that the powers that be in Harris County have already decided that the (relatively new) Harris County Jury Assembly Room cannot be salvaged.


Don't get me wrong, I had no doubt that the building got severely damaged in the flooding from Hurricane Harvey.  The geniuses that decided to put a major facility underground in an area that flooded during Tropical Storm Allison basically drew up the plans for the State's largest in-ground jacuzzi. 

I'm not surprised at all to learn that the building is a total loss.  I'm just surprised that Harris County is acknowledging the building's lack of salvageability so quickly -- throwing away a 6-year-old structure that cost $13 million is a bitter pill to swallow. 

My hope is that while the County is in such an "admitting-we-screwed-up" mood, they might turn their attention to the embattled Harris County Criminal Justice Center.   Under optimal conditions, the building is terrible -- narrow hallways leading to elevators that sporadically work.  No escalators or public stairwells.  It was shut down for a year after Tropical Storm Allison in 2001 after only being occupied since November 1999.  

But the damage to the building from Allison appears to be nothing compared to what happened in the CJC during Harvey.  Not only did it flood, apparently there was some mechanism in place that caused pipes to supercool quickly and subsequently burst, leaving raw sewage throughout the building across multiple floors.  

Now, I'm not an architect or builder.  Maybe there is some reason why buildings need mechanisms to supercool things.  I don't know what that reason might be, unless it is to freeze Rebel Scum in carbonite before having Boba Fett transport them to Jabba the Hutt.

Whatever the reason, the CJC is now, literally, a shit show.  And it's been a shit show since the day it was opened.

It's time to start over.  Harris County should take some notes from the Ft. Bend Criminal Justice Center and create a shorter and wider courthouse that is more conducive to having escalators and stairways for people to reach the courts.  The elevator system at Harris County CJC is grossly inefficient and dangerous.  Angry (and sometimes violent) people are scrambling into small places to make it to court on time.  It is truly astounding to me that no one has ever been beaten to death one morning.  

The CJC needs to be completely scrapped and started over.  Demolish the damn thing and spread the new construction across the site of 1201 Franklin and 1301 Franklin (the old jail).  Hell, if you hold a $100-a-ticket raffle for attorneys to see who gets to press the demolition button on the CJC, you might be able to pay for the whole thing outright.  There is nobody that comes into that building, from prosecutor to judge to defendant, that doesn't hate it.  

If Harris County can justify scrapping the Jury Assembly Room after six years, then there is no excuse for not razing that 18-year-old hell hole of the CJC.