Saturday, September 26, 2009

The Public Defender Debate Continues

The tabloid we all love to hate, the Houston Chronicle is again spreading their wisdom of how to best administrate the Harris County Criminal Justice System with today's editorial piece calling for a Public Defender's Office in Harris County. The article is co-authored by Cynthia Hujarr Orr, a defense attorney out of San Antonio who is the president of the National Association of Criminal Defense Lawyers, and Norman Lefstein, who is a professor and dean emeritus at Indiana University School of Law.

Now, as much as I just thoroughly enjoy people who don't practice criminal law in Harris County telling us how to run our business, I'm afraid I'm going to have to disagree with their assessments.

The idea of a Public Defender's Office has always appealed to critics of the Harris County Criminal Justice System, because those who don't understand the system seem to believe that a new bureaucratic agency with investigators and secretaries, etc. would put the Defense Bar on a more level playing field with the District Attorney's Office.

And, in principle, I would be inclined to agree -- to a point.

One of the things I miss about working at the District Attorney's Office is the support network. Although often unappreciated, the work of the Administrative Assistants and the Investigators provides prosecutors with priceless assistance. In the world of private practice, an attorney can certainly have a secretary, an investigator, and hell, even a paralegal, but these personnel are usually really needy and want things like paychecks and insurance.

So from the aspect of a Public Defender's Office with support staff with investigators, paralegals and administrative assistants provided, I will concede that this particular element is a good idea.

After that, however, is where the plan goes astray for a couple of reasons.

First of all, I'm absolutely astounded that Orr and Lefstein (and the Chronicle) would actually try to say with a straight face that a P.D.'s office would actually save money for Harris County. I mean, come on. How in the hell would creating an entirely new bureaucratic agency with personnel from top to bottom that need insurance, retirement plans, and office space end up saving taxpayers money? Sure, you can argue all day long that it is the right thing to do, but when you start asserting that it's going to be some sort of bargain, you're undermining your own credibility.

Make no mistake about it. If a Public Defender's Office is going to be created, it's going to cost money -- a boat load of money. And in the big scheme of things, it's probably going to cost a lot more money than even Orr and Lefstein are contemplating if they want to make it any good.

In the comments to the Chronicle's editorial, a regular commenter under the name of "Helpful" astutely points out several other issues that would come along with a new P.D.'s Office. The one that should be most concerning to the general public is the type of attorney that would be drawn to work for this bureaucracy:

". . . a public defense office will mostly employ newly minted lawyers without much experience and pay them at such a rate that the best of the batch will leave once they get enough experience to compete with their seasoned counterparts. The resulting government body will still demand ever-increasing amounts of money each year, all supported by people like Orr that tell us how ill-funded it is and the horrors of underpaid defense attorneys fighting against those mean old prosecutors."

Right now, there are Defense Attorneys who accept appointments in Harris County that could dance circles around other attorneys across the Nation when it comes to trying criminal cases. The indigent defendant who gets an attorney appointed to him like, say, Skip Cornelius or Tyrone Moncreif, just hit the freaking mother lode when it comes to quality representation. Skip and Tyrone won't be headed to work for a government agency any time soon.

The ones that will be going there are going to be attorneys who either 1) just got out of law school, or 2) are not successful enough to survive in their private practice.

As the current appointment system works, a Court needing an attorney to represent an indigent defender will get a computer generated list of ten attorneys that they can select from. Court coordinators aren't going to select an incompetent attorney. I'm sure that the last comment will draw comments from the skeptics, but the bottom line is that the current system does give a Court a choice in what attorney they are getting. Under a Public Defender system, they are going to get stuck with a certain attorney assigned to the court, regardless of their skill.

Think about it. Skilled attorneys in the defense bar aren't going to stick around with a governmental salary for very long. In fact, the majority of good defense attorneys are typically veterans of the D.A.'s Office who left, not because they didn't enjoy the job, but because it didn't pay enough. The creation of a Public Defender's Office ultimately is just a call for a Bureaucratic money pit that recruits mediocrity (at best).

Right now, to accept felony appointment in the criminal courts, attorneys have to take a test, have trial credentials that reach the standards for appointment, and then be approved by the District Court Judges. Under a P.D.'s system, they'll have to do none of those things before representing defendants.

The Chronicle likes to insinuate that the current system is prone to cronyism and appointments being given solely to campaign donators. That's pretty damn insulting, but it's also lazy reporting in my opinion. If they want to start doing some hard fact writing about an incompetent attorney who is getting appointments solely because he delivered a hefty campaign donation, then let's see it. Otherwise, this is just idle griping about what they feel may be behind a high conviction rate in Harris County.

Now, before I close and the commenters start bringing in their usual banter of insults, I acknowledge that I take felony appointments, and I am happy to do so. I was a prosecutor for nine and a half years, and from a business standpoint, appointments are how one builds a defense practice. I make absolutely no apologies for that. I will also freely admit that I would hate for there to be a Public Defender's Office because it could potentially cut into my business. I have no intention whatsoever of going back to work for a government agency.

That being said, I also know that I bust my butt for all cases I get appointed to and work on them with the equal amount of zeal and effort that I do for the retained cases I have. I've been happy with the results so far, and more importantly, so have my clients.

If Orr, Lefstein, and the Chronicle want to do something to increase the level of effectiveness of indigent representation in Harris County, there are plenty of things that can be done.

Creating a new bureaucracy that appeals to the lowest common denominator of the legal practice isn't one of them.

28 comments:

Anonymous said...

Surely the system created would have some manner of progression from juvie/misdemeanor to the felony courts. This quote of yours below is a ridiculous assumption:

"Right now, to accept felony appointment in the criminal courts, attorneys have to take a test, have trial credentials that reach the standards for appointment, and then be approved by the District Court Judges. Under a P.D.'s system, they'll have to do none of those things before representing defendants."

You think the county is going to dole out millions to create an ineffective assistance agency? I know it's HC, but come on.

A Harris County Lawyer said...

Anon 6:08 p.m.,
I'm sure at some point (under a theoretical situation) that there will be a system of progression, but as anyone who has ever worked for a government agency can tell you, incompetence can arise at pretty much any level of the work food chain. Also, once this program begins, which recent law grad are we going to make bureau chief? I'm assuming the P.D.'s Office would ultimately mirror the structure of the D.A.'s Office, but the actual beginning of it is going to be horrible for the defendants.
And do I think the county would dole out millions for an ineffective assistance agency? My answer to that is simply "not intentionally". But the Road to Hell is paved with good intentions.

Anonymous said...

I have to disagree. I think that Houston could very well develop a good PD system. The qualifications you speak of could easily be accomplished through a vetting process, particularly the trial credentials portion and test.

Just like the DA's office, no one in charge of a new PD agency would be assigning a 2 yr lawyer with few trials to a murder case or appeal.

Do the judges not like this plan because it removes their control of who practices in their court on appointed cases and for some, reduces the pool of already slim contributors.

It's coming I think. Maybe they could get Roland Dahlin to administer it for a few years, since he ran the Fed PD's office for so long.

Bob said...

I think all lawyers should not be paid more than 400 dollars a case unless its a capital case maybe up to two grand. Lets visit this we are in a recession look around. Just my thought. peace

Anonymous said...

Roland Dahlin is running for judge as a Democrat.

Anonymous said...

These self richeous professors who applaud this system should try a case against Skip Cornelious, Tyrone Moncrief, or a series of other appointed lawyers. In my experience as a prosecutor, some of the best trial lawyers I have faced have been appointed. And it is unlikely that the indigent defendants could ever afford these lawyers on their own, or that these lawyers would work for a PD office.

Anonymous said...

Anon 6:08 said:

"You think the county is going to dole out millions to create an ineffective assistance agency? I know it's HC, but come on."

Anon 6:08... better read about the poor performance of Dallas Public Defenders Office before forming a final opinion.

Anonymous said...

How much do you think public defenders will contribute to the judges campaign funds?

Anonymous said...

Have you seen the white paper put out by the Texas Fair Defense Project - it doesn't say who wrote it - it presents anecdotal information and emirically researched information:

http://www.texasfairdefenseproject.org/

Rage Judicata said...

Anon 6:08... better read about the poor performance of Dallas Public Defenders Office before forming a final opinion.

In Dallas, the commissioners have intentionally stacked the odds against the PD's office. They have reduced their budget and increased their case load to the extent that it is no different from an appointment system, in an intentional attempt to set them up for failure. As long as we do it honestly, we won't run into the same problems.

But I'm sure you already knew that...

The greatest savings in costs will be in reducing the jail population. Not only will it eliminate the need for a new jail, but it will eliminate the need to house prisoners in other counties or even other states. So if we funnel the millions that we were going to pay on prisoners into an effective PD office, it very well may save money when you consider the millions and millions of dollars we waste on housing inmates. Of course, the same could be accomplished with intelligent bonding procedures, but we'll have a PD office long before we have intelligent judges.

As for the claim that a "PD's office will only be staffed by people who weren't good enough to get a real job...", well, I find that laughable. That's what the rest of the world thinks about the DA's office already.

Anonymous said...

Rage - How would it decrease the jail population? People who know nothing of how the criminal system works in Harris County keep saying this, but no one has explained how. Clearly, you know everything. So please enlighten the rest of us.

Anonymous said...

As usual, shit speak from the master.

"The greatest savings in costs will be in reducing the jail population. Not only will it eliminate the need for a new jail, but it will eliminate the need to house prisoners in other counties or even other states." How??

"That's what the rest of the world thinks about the DA's office already." Actually, only assholes who think they know everything think that. But surely you knew that, right?

Rage Judicata said...

I probably know more about jail populations than any two of you chumps combined. All you know is that that's where people go after a conviction.

PD offices have reduced jail populations across the state. It's widely known, and easy to find. I can't do all of your work for you.

Anonymous said...

Grits did the work asshole, not you.

"For example, the Hidalgo County Public Defender Office reduced the average number of days between arrest and disposition of an imprisoned misdemeanor defendant's case from 15 to 11 days." In Kaufman County, officials attribute reducing the county's average jail population from 306 to 246 inmates their new public defender."

BorkBorkBork in the comments section has a lot of good counter arguments, but since they are well reasoned and counter to your position I am sure you didn't read them.

You remain, a douche.

https://www.blogger.com/comment.g?blogID=8597101&postID=1741555056599580514

Rage Judicata said...

8:56, even Grits quotes the work of others in that post, genius. Still, it's undeniable that PD offices in those counties alone has reduced their jail population. Combine that with realistic bonds, and we may get to save a few tax dollars--with an increase in public safety in the process.

You remain, a moron.

Anonymous said...

I used to work at the Dallas DA's office. This was 11 years ago. At that time, the commissioner's court hated the DA's office and it was severely underfunded (remember they borrowed attorneys from civil practice who wanted trial experience but were being paid by the firms just so they could fill their courts with attorneys). Some of the commissioners in Dallas had been arrested/charged of crimes, so they bore ill will towards any law enforcement agency. Since then, politics in Dallas has only gotten more lefist, so I have a hard time understanding why they would underfund the PD system.

Having said all this, I think our system in HC works fine most of the time. And the worst defense attorneys I saw as a prosecutor here in Harris County? Hired defense attorneys who were over their head or attorneys who were civil attorneys who were doing a "favor" (i.e., disservice) for a friend.

Murray, you forgot to mention that the "test" you have to take to get appointed at the felony level is a damned hard test. And you have to have a lot of trials to do high-level felony stuff. In sum, you have to have smarts and lots of criminal trial experience and you have to have the approval of the majority of judges.

Finally, I don't think it's fair to say all judges are looking for campaign contributions either. Several of my friends who do criminal defense appointments have spoken highly of judges who begin appointing them once they are on the list. Judges may be politicians here in TX, but they're not idiots. They want good attorneys practicing in their courts.

Joel Rosenberg said...

You've just proven, I think, that there can't be a good PD office. That said, folks in other areas who have had dealings with PD offices -- in Minnesota, say -- say that there are such things.

Is there some way to reconcile your opinion and theirs?

Anonymous said...

The Dallas County Commissioners Court is leftist?

That's a bigger misconception that Artur Seaton's parents had.

Anonymous said...

Several suggestions to reduce the jail population:

1. Only 5 District Courts allow personal bonds at the PC level. All of the judges should allow the PC court judge to give personal bonds for SJF cases.

2. Tickets for class B misdemeanor POM cases.

3. 3 for 1 time at the jail.

Just a few thoughts.

BLACK INK said...

Like it or not, Harris County will have a PD system soon and should.
The inconsistency of a defendant's representation supports extensive amounts of incompetence; misrepresentations inherent in judicial cronyism is corrupt at its core and unchecked support staff abuses cost the taxpayers untold amounts of wasted dollars and results in an inappropriate rendering of judicial outcomes.
In these troubled times, governmental fraud and abuse and inefficiency need to be reigned in just like the private sector.

Anonymous said...

A Public Defenders Office is a good step and well overdue.
We also should have a public integrity investigation into the criminal District Court system generally to curb the blatant self serving bullshit from the Judge down to the bailiff. The whole system is fraught with abuses that result in excessive expenses as well as lost revenues for the citizens of Harris County.
Who monitors the actual hours worked by the judges and their staff? Some of the judges actually make the US Congress look like hard working ethical folks.
There is no correlation for the monies paid out from the county coffers for the work performed by these county employees or their staff or cronies.
When a government employee is compensated by a 3rd party for work performed based solely on his government position, that individual should be held to the highest standard of ethics to avoid even the appearance of impropriety or conflict of interest and the rules of unjust enrichment should be strictly applied. Further, when a district Judge appoints an attorney or allows anyone else to be compensated with tax dollars, those same standards should apply as well.
Everyone is so quick to criticize the ADAs ethical behavior; perhaps it is time to scrutinize the other players as well.

Anonymous said...

It's no longer a debate, it's reality. I say step up to the plate, Murray, and apply for the head job as PD. This is going to put a big hurting on court appt attorneys incomes as well as the election funds of judges.

I agree with the former poster. Time to put the same steely eyed glare of evaluation on the jobs the PD's do that has been applied to DA's for years. unico

Anonymous said...

I too would not appreciate some out-of-town lawyer telling Houston lawyers how to do things better. I can say that in San Antonio, there is a public defender appellate section which handles all the indigent appeals. It only employs very qualified appellate lawyers and has definitely saved Bexar County money. Maybe Harris County might approach such a program first to see how things go before implementing a system-wide public defender's office

Anonymous said...

Come on Murray, you know you can do it, send in your resume to head up the new office. You can go head to head with the DA's office on every case. You gotta admit in might be fun to build a quality PD office.

This office in particularly needed for high misd, low felony cases which are just a money-grab right how by lawyers, bond folks etc. While I agree the cost will be higher than now, it can partly be paid for by reduced appointed lawyer fees.

Plus, your logic doesn't really work since the DA's office is also a government agency that doesn't pay as well as private firms but yet the DA gets some quality attorneys. The PD office can be just as effective.

I am not a lawyer but scored near perfect on the LSAT before coming to my senses.

HCCC Observer said...

I read the article on the Chronicle and agree that "Helpful" did provide a better counterpoint than any of the others there, or here for that matter. Seeing as how so many legal eagles populate this blog, it is no surprise that the arguments in favor tend to look at the situation conceptually while those against focus on the pragmatic aspects but I think a mix of both makes the most sense.

The office will spend a lot of its allocated funding on the top level of personnel, be it for political reasons or just to attract half decent people. The rest will be paid much like newcomers in the DA's office, resulting in a revolving door policy no matter how poor the economy. Given how tight HCCC is with money, I just don't see them approving salaries needed to keep competent lawyers capable of adequately handling cases like murder. I also do not see them fully staffing such an organization to the level where caseloads will allow the luxury of the time needed to properly handle such cases. Argue as you will but this is based on decades of up close observation that would put Rage to shame.

The falsehood of saving money via a PD office, at least one half as good as the current appointment system, is laughable too unless major changes are made in bonding, none of which appear to be on the immediate horizon. That $38/day per inmate shipped to Louisiana beats paying the HCSO overtime rates but the local jail is already so overstaffed that any marginal relief as smaller jurisdictions have felt won't help much unless you intend on opening up a half dozen more courts to boot.

I don't think a PD office will raise the bar in terms of overall representation either unless you consider it will lower the quality for the first several years. The people of Harris County have demonstrated time and again that they are unwilling to pay for the protection of rights to the level Rage seems to think, leading me to think this is all part of a plan to offer bare bones coverage on the cheap, just dressing it up differently.

Anonymous said...

Murray: It'll come down to dollars and a reasonable plan.

Some underfunded local defenders services have a rep for having inexperience and unprofessional staff. The old Orleans Parish PD that was closed down a few years back comes to mind. While others like the DC Public Defender Service, or the San Francisco PD, are nationally recognized as some of the best, most experienced criminal advocates around.

You hit the nail on the head when you mention money - because it'll cost to have a good office - but there is no practical reason why Harris County can't have a top notch PD's office. We have had a top notch DA's office for over 30 years, after all. ;)

Also, I think your knock on inexperienced baby advocates is a bit misplaced. Just as the HCDA's office took goofs who had learned a lot of bad habits working for certain defense lawyers and molded them into fine litigators [nudge, nudge], there ain't no reason a PD's office couldn't do likewise. The Southern District of Texas has a very fine Federal Public Defender office and none of those current or former AFPD's came from Mars (well, maybe George Murphy did :) ).

Why couldn't a properly funded local PD recruit just as well?

The current New Orleans situation is instructive on how to build a new office from scratch. The NOPD recruited experienced people from NY, DC, and other PD offices to fill all the top spots. For example, after Katrina, they brought in Ronald "Sully" Sullivan from Harvard's Criminal Justice Institute (and the former director of the DC PDS) to run the show.

But why would Harris County even need to do that? Why couldn't some of the decades of experience and talent that have recently "retired" from the HCDA's office people-up a new PD?

Also, I know some of these worries coming from the Harris County defense bar have to do with the very practical issue of dollars in their pockets. I feel y'all, believe me, but the PD will be conflicted out of enough of these cases for those who still rely on appointment work. Appointments will not disappear. Here in DC there is a healthy private defense bar in Superior Court (like County Court, District Court, and Kangaroo Court all rolled into one). And trust me, there ain't no paying clients getting snatched up for local offenses off the streets of the capitol city - except for the occassional drunken Texan. It's all appointments and the criminal justice panel attorneys in DC do just fine.

I'm not saying a PD's office "no matter what" would be best for Harris County. But a PD's office done the right way would be better. Because, let's be honest, for every Tyrone Moncrief there's at least one of those fellas on the list who should have stayed over in Houston City Court working tickets. Not everyone is a former ADA or AUSA with actual trial experience - or even somebody like me who at least had enough sense to know when I was in over my damn head. Your trust in all of Harris County's fine judges to choose the pick of the litter is probably well placed most of the time - but not all of the time.

-Eric M-

pfsedita said...

If the goal is to reduce jail over crowding, a PD's office will not do it.

That goal can be met in other ways. People are in jail for either 1) because they have a pending case and can't afford to make bond or 2) they are sitting and waiting on a bed for treatment or 3) they are serving a sentence.

So to get more people out of the jail- 1) reduce bonds and get judge's to grant more PR bonds, 2) get the DA's office to lower the recs or the sheriff to give more credit or 3) have more beds for treatment and rehab.

If Comm Court really is itching to spend money, fund more beds! I cannot say I am privy to the numbers but I have many clients waiting 4 and 5 months for treatment, both rehab and mental health. I have clients who choose HCJ time over treatment for drug cases because they can do math: five months to wait on a bed or five months to serve the case out.


I am a former HC ADA and a defense attorney for more than 12 years. I do a lot of appointed work. A PD's office certainly will cause me to restructure my practice. I won't go to work for a governmental agency either. It is really not the money it is the freedom. I like to work up my cases my way. I like to choose what cases I take and those I turn away.

If it is gonna happen, so be it but I do not want the non-criminal justice public to be under misconceptions to do it. It won't save money for sure. If it does save money it is because it is underfunded.

It is not going to reduce the jail numbers.

BTW- I work my butt off for all my cases, appointed and retained. I cannot think of a single lawyer that is in my orbit who accepts appointed work who does. I don't practice in any court where a judge puts crappy lawyers on cases. Maybe it happens somewhere in the courthouse but I know that 9 times out of 10 when I get subbed out I fear for my client's case.

Anonymous said...

What are the requirements to get appointed felony cases and appellate cases.