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.