In the participation with the Chronicle's latest zealous campaign for a Public Defender's Office (which has already been approved), writer Lise Olsen assisted with this article over the weekend talking about indigent defendants spending inordinate amounts of time in jail. As usual, the Chronicle is missing their mark on the cause of the over-lengthy stays, but in this case, Ms. Olsen seems to have gone really overboard with some mischaracterizations and outright inaccuracies throughout her story.
The first problem with her article is that it flat out just misses the boat. If the Chron was looking for why Defendants remain in jail for so long they can blame one main factor -- the enormous caseload of pending cases in each and every court in Harris County. It's been awhile since I last looked at the actual case counts for the individual courts, but before I left the D.A.'s Office, most courts were running between 900 to 1000 cases pending, on average. When you start dividing that up to how many cases can be on a daily docket, you start to realize that the average setting for each case is probably going to be at a minimum of one month intervals.
In other words, a Defendant is only going to get his or her turn to go to court about once a month. If the case isn't resolved on that date, they are normally going to be waiting for another month for something to change with their case. The reasons for a case not being resolved on a setting can range from a flat-out assertion of innocence to something as simple as a prosecutor not being able to reach a Complainant yet.
If a case is headed to trial, a Defendant is typically in for a good wait of anywhere from 9 months to 1 year (or more) before they get their day in court. If they can't afford to bond out, they are going to be sitting in jail. A court can only try one case at a time. Some courts try two cases a week, but the vast majority only have time for one a week. If you are keeping up with the math at home, this means (at the most), each court can try between 50 to (ballpark figure) 70 cases a year under the most ideal circumstances.
That isn't going to happen. So, when cases set for trial start hitting about 100 in the courts, you are going to have Defendants cooling their heels for awhile.
But according to Ms. Olsen and the Chronicle, rather than try to get more money and approval for more courts, the answer is a Public Defender's Office -- because dammit, those attorneys taking appointments right now just aren't getting the job done.
Um, okay. Let's look at some of the things that Ms. Olsen erroneously asserts in her article:
1. "None of the lawyers are routinely required to document the hours or provide details on how much they worked on each case" -- Oh really? Because the last I looked there was a form that had to be filled out for all out of court hours done by an appointed attorney on a defendant's case. An attorney has to keep up with that if he wants to get paid for the work he has done. Whether it be legal research, talking to witnesses, or jail visits, they all have to be documented before the case is disposed of and the attorney is paid.
And guess what! Attorneys do like to get paid.
And by the way, a Public Defender's Office would alleviate this how, exactly?
2. "Harris County's court-appointed indigent defense attorneys often are paid a flat daily rate regardless of how much time they spend on cases in or out of court." -- That's just a flat out load of crap. I don't know who Ms. Olsen was talking to, but she got some bad information. It is true that an appointed attorney does get a flat fee when they are working a Term Assignment (aka Attorney of the Day/Week) and that there is a set fee for appearances in court, but there is absolutely an amount where attorneys are paid for their out of court hours.
Again, don't you anticipate that the individual Public Defender's are going to be paid a flat salary? If so, there will be even less incentive for them to document their out of court hours.
3. "The bills don't usually provide details on the hours worked, with the exception being capital cases." -- Seriously, Ms. Olsen, where are you getting this information from? You couldn't be more incorrect. On every appointed case that I have handled, it has been documented on all billing what I've done on the case.
4. "Any poor defendant with complaints about a lawyer generally must appeal to the same judge who appointed him or her." -- Yep, they can certainly start out with complaining to the judge and asking for a new lawyer. And judges will listen. But they typically won't remove an defense attorney just because the attorney can't get the defendant the exact deal they wanted. It isn't unusual for attorneys and their clients to butt heads, but if a defense attorney's representation is really egregious, the Judge of the court isn't the only person they can complain to. There's this little-known organization called the State Bar . . .
And once again, I ask the question, how does a public defender's office help this? A judge can remove an attorney from a case if he or she appointed them. Do you really think they will be able to do the same for a public defender who is actually assigned to the case?
I'm in complete agreement with what Judge Michael McSpadden said about the topic in the article: "The people who think the public defender system is going to cure all ills in our system are crazy."
He's absolutely right.
I wonder if the Chronicle has thought that part out yet, while they are busy revamping the criminal justice system.
There are some other things that can be done to alleviate the amount of defendants who are languishing in the Harris County Jail, including revamping the bond schedule. I've got a few thoughts on that, as well, but I'll save them for another post. In the meantime, maybe the folks over at the Chronicle ought to be spending more time working on how to boost sales revenue rather than sponsoring an ill-written and poorly researched article like Ms. Olsen's.