Saturday, January 26, 2013

Too Much for Too Few

Every couple of years or so, the issue of the Harris County Criminal Justice System's methods of appointing attorneys for indigent defendants comes under scrutiny.  I'm glad that it does.  Scrutiny leads to improvements (hopefully) and in the past, those improvements have ultimately included testing qualifications for appointed attorneys as well the establishment of the Harris County Public Defender's Office.

Robb Fickman
However, problems -- massive problems -- persist and we are, once again, taking a hard look at the way criminal court appointments are made.  Most recently, Robb Fickman published an article on his blog about the massive number of cases being handled by a relatively small group of attorneys.  He linked to this list which gives a top-to-bottom listing of the distribution of appointed criminal cases from 2011.

I find the list to be extremely interesting because it is very well done.  There is a breakdown between misdemeanor, felony and juvenile appointments by attorney. Also included is the ideal number of attorneys each caseload should require as recommended by the National Advisory Commission.  The numbers are startling and unsettling.

Before I delve into the numbers, I'd like to point out a couple of things about how appointments work in Harris County -- specifically how Felony appointments work.

First off, all attorneys who accept felony appointments in Harris County have to take a test to be on the list.  Once they pass that test, they are certified to handle either State Jail/3rd Degree cases, 2nd Degree cases, or 1st Degree cases.  Those who are appointed on Capital cases have more stringent requirements that I'm not going to address for the purposes of this particular blog post.  In my case, I am 1st Degree certified, which means I can be appointed on any non-capital felony.

As an attorney who will take felony appointments, I have access to a calendar where I can put in a request or notice of availability to take appointments.  I can mark on the calendar that I am available to take an individual case appointment or that I am available to be the "Attorney of the Day" for a court.  A court coordinator who needs to bring in a court appointed attorney will bring up a computer screen with (I believe) ten attorneys' names and the coordinator can then make a selection out of those names to give the appointment to.

If you are assigned to take on an individual case appointment, the maximum number of new cases you can get assigned to each day is two.  If you are working on pre-existing appointed cases, the most you can get paid for is four a day (NOTE:  you can have more cases on any given day, but you will only be paid for four of them).  If you are signed up to be an Attorney of the Day, you are paid a flat daily fee for handling up to five cases for the court per day.  More often than not, courts appoint attorneys for the entire week, meaning a lawyer could end up with 25 new cases in one week.

A few weeks ago, Robb Fickman announced that he was highly concerned about the number of cases some attorneys were taking appointments on.  At that time, he said he would be "naming names" of attorneys who were overloading themselves with cases, and I wondered where I would fall on that list.  I take a pretty even split of retained cases and appointed cases and I generally try to keep my active number of cases somewhere around 50 at any given time.  If I'm getting too far ahead of that, I take my name off of the appointments list.  If I get significantly below, I put my name back in.  I never really pay attention to how many cases I handle a year.  I pay attention to having a workable amount at any given time.  Some cases don't take very long to work out.  Some can pend for over a year.

As it turns out, I'm doing just fine on the list.  I came in at under the recommended levels for how many cases any given attorney should be handling.  Many of my brethren and sistren in the Defense Bar did not do the same.  The top four most-appointed attorneys are each working caseloads that are recommended to be handled by 4.1, 3.5, 3.2 and 3 attorneys respectively.  Number one on the list received over 800 cases in 2011.

The common denominator in those Top Four attorneys is they are all Spanish-speaking attorneys.  Eight of the Top Ten are Spanish speakers, as well. As my friend and colleague Jackie Carpenter pointed out in an e-mail, I believe that a tremendous contributing factor in why so few attorneys are receiving so many cases is due to the relatively low number of Spanish-speaking attorneys on the appointed lists.

Living in the largest city in Texas means that there is going to be a large number of crimes committed by people who don't speak English.  To effectively represent a person, in my opinion, you absolutely must be able to communicate to them in a language you both understand.  In my conversation with Robb about this latest crisis, he offered the solution of having more interpreters available.  I respectfully disagree that this solution would work.  It is easy to have an interpreter meet you in court to talk to your client.  However, it is not easy to have one join you every time you want to go talk to your client at the jail or go interview witnesses that require a translator, as well.

The real answer is that there is a tremendous need for more Spanish-speaking attorneys who are willing to take court appointments.  It is my understanding that there are currently less than ten Spanish-speaking attorneys who do 1st Degree appointments in Harris County.  Given the size of our county, that is staggering.

There needs to be a push to get more attorneys qualified to handle serious cases where there is a language barrier.  There is already a small financial incentive for attorneys that speak a foreign language (I believe).  That incentive should be increased.

Additionally, those Spanish-speaking attorneys who thus far are not qualified to handle higher-level felonies should be given the opportunity to get on that list by retesting or sitting second chair to get enough trial credit to qualify.  The rules of appointments in Harris County aren't unchangeable.  Recently, a judge who lost her bench in November was allowed to be on the First Degree appointment list despite the fact that she never passed the appointment examination in the first place.  If an exception can be made to help out a former judge, surely something can be done to increase the number of qualified Spanish-speaking attorneys on the list.

Furthermore, careful attention needs to be paid to what kind of cases those attorneys who do, in fact, speak Spanish are being appointed to.  For instance, if a 1st Degree qualified Spanish-speaking attorney is being appointed to an English-speaking State Jail Felony defendant, resources are being wasted.

Fickman suggested there be a change to the way appointments are generally made, and I don't disagree with the majority of his plan.  However, in my opinion, the language barrier issue amongst appointed attorneys is the largest contributing factor of overloaded attorney appointments.

Ultimately, it is a supply and demand issue.  Until it can be resolved, I don't think there is going to be a significant change in the stats we have been seeing.

55 comments:

Anonymous said...

Excellent post, Murray! Hopefully will start some good dialogue on this important matter. In my layman's opinion your suggestions are excellent.

Anonymous said...

I agree with Robb Fickman,there is something seriously out of whack with the present system. I am qualified from Capital murder on down and also on the Spanish speaking bilingual list. From 2002 through 2010 I had a steady amount of appointments, though not excessive. Since 2010 I 've been lucky to get an appointment every 6 weeks to two months from any court, even though I sign up religiously every month. I had a grand total of 4 Spanish speaking appointments last year, even though I am one of those ten Spanish speakers who are qualified for the top level cases. Some counties like Fort Bend have a true wheel, where one qualifies to handle a certain level of felony and then the appointment coordinator goes down the list appointing attorneys until they reach the bottom and then start over again.
I'm not alone, there are others I talk to whose court appointments seem to have all but vanished while others get work week after week.

Anonymous said...

The lawyer with the most cases on the list is not first degree certified.

Anonymous said...

I'm curious as to why the numbers set b the national advisory counsel are to be taken as gospel. Just wondering.

A Harris County Lawyer said...

Anon 2:50 p.m.,

I wish you would contact me or Robb off blog to talk. I think you information might be very helpful to the changes that need to be made. I promise I won't tell anyone who you are without your consent.

Anon 4:20 p.m.,

You are absolutely correct.

Anon 4:23 p.m.,

I understand your point, but that is the stat that Harris County seems to keep. I will say that I came in at a lower amount of appointed cases than advised and I felt quite busy with work. Granted, I had a significant amount of retained work as well, but I don't know that the numbers given by the National Advisory Counsel are all that outrageous.

Anonymous said...

Do these numbers include appeals?

I couldn't find Fickman's name on the list. How many appointments does he take a year?

Anonymous said...

The average Felony 2 handles three times these caseload recommendations. The average Felony 3 handles literally hundreds of cases at any given time. Just food for thought when members of the defense bar believe a lawyer can only handle a few cases at a time.

Jela said...

Anon7pm, for appeals, the recommendation is not more than 25 cases per year.

Anonymous said...

Murray-
Good post.A couple of points:
1. I agree that The language issue contributes to the overall problem. More first degree certified spanish speaking lawyers is a good idea. In federal court non Spanish Speaking lawyers are routinely appointed to Spanish speaking clients because of the shortage you allude to. In Federal court the attorneys are given full access to court certified translators and it works quite well. So having a lot more translators would help. I Believe the primary criteria in appointing counsel should be the lawyers skill as a lawyer not his or her language ability. I would rather have a good lawyer & a translator than a crappy lawyer who speaks my language.

2. Either way, I think the language issue is secondary to the primary issue. After 29 years I believe the primary issue lies in the courts' priorities. The courts' priorities all too often are moving the Almighty docket. The courts' historically have leaned heavily in favor of appointing lawyers who move the docket. These favored lawyers are always well-fed and get more cases than anyone can reasonably handle effectively.
At the same time, many good lawyers do not get appointed enough. The lawyer who posted at 2:50 has been in touch with me. His story is unfortunately not unique. It seems a good number of good lawyers are not being given appts even though they are available. . It would be much better for defendant's if they were represented by competent counsel who had reasonable case loads. I favor a redistribution of ct appts so that the good lawyers who are not fully utilized are fully utilized.

3. The ABA standards are the result of detailed studies and they are relied on nationally.


4. The judges have created this problem. The solution lies in taking appointment power away from them & entrusting it to an independent agency that has no connection with the PD. This is the only way to rid the system of the judges' agenda dictating appts and creating this sorry system. An independent agency that actually fairly made appts would eliminate the problems that have plagued the system for so long.

5. I will not be found on the list. I was certified to take First Degrees but I have not done State appts in some time. I do appts in Federal Court. I have no personal financial interest in this matter. But the system is wrong and it will stay wrong until we make it right.

Robb


Vic W said...

On one hand I am far from impartial since I am high up on the appointment list. On the other hand I am about 95% retired and would truly for this to be an honest discussion and for the right result to occur. I do not understand if the point of Rob's complaint is to get the best defense for indigent defendants or to equalize employment for attorneys. Those are two completely separate and distinct issues. If Rob wants to fairly utilize statistics why not utilize all the numbers? Lets start with trials and trial results including guilty, guilty of lesser, NG and average sentence. Thats only a fraction of the cases. To really be really fair on such an important topic lets break out every appointment by degree of felony and by result. Include guilty, guilty of lesser, dismissal and average sentence for each level of felony. If there is a correlation between attorneys with the most appointments getting the worst results than Rob has a point, if not than he is couching an equal employment discussion in the guise of fair defense. You can use me as the example. I went off the appointment list for 2 & 1/2 months last year. Did I get better results in 2012 than 2011 because I handled less work?
If I am a judge and lawyer A consistently gets good results, pleads his bad cases and fights like hell when he can win why souldn't I keep using him? Do I need to keep appointing lawyer B seems to be padding his time in every case and gets shit results? Forget about the Judges, lets use Rob's stats. Lets say attorney X handled 400 cases last year and it is 2x the prescribed minimum but he gets statistically better results over several years vs. attorneys Y & Z with 100 cases each. Should he give half his business to Y & Z? It's really nice of Rob to burden those indigent defendants with no choice of their counsel to suffer with convictions when they could have gotten nolles, TDC time when they could have gotten SJ, more time when they could have gotten less just so he is happy that work is divided evenly.
I think there are 6 maybe 7 courts I have never gotten an appointment in. Should I write an op/ed claiming that I have xyz qualifications and 1/3 of the courts haven't appointed me even once in 3 1/2 years and the system isn't fair? I think the better solution is that if the judges and/or court coordinators don't value my abilities than why do I need to be there? I can do so much better for my clients in the courts where I am liked and respected and my service is valued.
I do court apointment in Ft. Bend and do not get me started on the "fairness" of a wheel. I have had clients in jail for 3-4 months totlaay abandoned by their previous court appointed counsel. If I were cynical I could suggest that this happened because their lawyers would cherry pick the judges there who pay well and could give a shit on the poor defendants who fall out in the other courts.
I understand that this is an important issue but Rob taking one statistic out of many to make his point is that is disingenuous.
I'm tired and can't write or self spell check any more. Rob(b) is a good man, my quarrel is not with him but with his blog and I hope my response is taken in the same vein.

Anonymous said...

Everyone knows Defense work is more difficult and time consuming.

A Harris County Lawyer said...

I hope this doesn't digress into who has a tougher job - prosecutors or defense attorneys. Both have their individual challenges that ultimate cancel each other out.

However, I will point out that defense attorneys are the one and only lawyers held accountable when a trial goes badly for a defendant. That's a lot of pressure.

And as Bert Graham once wisely told me: "The good news for you is that case law says that a defendant isn't entitled to a competent prosecutor."

He was joking. I think.

Anonymous said...

Vic
1. I am tired too. Tired of this system.
2. The ABA std for 150 felonies is nationally accepted. 150 felonies a year is a lot of defendants to interview, witnesses to locate, scenes to visit, motions to file. It's plenty of work. I can only think of one reason for a lawyer to take more than 150 felony appts in a year and that reason is green.
3. I have not relied on one number as you suggest. The data compiled by the Texas Indigent Defense Commission is reliable and compelling. Nothing disingenuous about it.
4. Do any of us really believe a lawyer can provide effective assistance on 500, 600, 700, 800 or 900 cases a year? Anyone really want to argue that. Even the greatest lawyer among us could not provide effective assistance on that many cases.
5. I am sure there are 5 billion other statistics we could dig into on Every case. That inquiry is not necessary for me and only serves to dilute the painfully obvious point demonstrated by TIDC Data.
The fact is some lawyers are appointed to more cases than they can reasonably be expected to handle effectively.
5. My point is simple. This system is wrong. It creates scenarios where ineffective assistance is all but guaranteed. So I oppose this system. I am not an employment advocate for appt counsel. My suggestion that cases be spread out more fairly is my suggested solution to problem which is evidenced by the data.
6. The suggestion that I am trying to stick an indigent defendant woukd hurt my feelings if I had any. Nothing could be more inaccurate. But I realize that attacking the messenger comes with the turf. That's ok and expected. But attacks on the messenger do not effect the truth of message. This system stinks.

Vic I know you are a gentleman & fine lawyer. On this one we will likely never agree. So we can agree to disagree. I will keep speaking out so long as this system stinks to high hell,

Robb

Anonymous said...

Most appeals are now being handled by the PD's office.

Vic W said...

Robb, I was not attacking you I was trying to show that your arguments are naive, unworkable and unfair. If results aren't the measuring stick for an attorney than why do lawyers advertise "I get results" or "results matter, hire me"? Haven't seen one ad yet saying "hire me, I need the work, no one else will so I have loads of time to work on your case". Would you hire an attorney for a civil matter who needed the work or would be most effective?
Do you seriously think Cappy Cosper has the time to make hundreds of phone calls every morning lining up indigent counsel?
BTW, exactly how fair is your Federal appointment system? In mid 2009 when I was retired/unemployed I took the classes to be on the appointment list. I had been licensed in the Southern District since 1984 and the lawyer chair of the panel, who was my friend, told me I was a "shoo-in". Not only was I not a shoo in but a lawyer who left the DA's office as a #3 with about 1/20th of the trial experience I had made the list and I didn't. Obviously I got blackballed for some reason.
Needless to say I didn't think it was fair that Lykos fired me. Even more unfair was Lykos and Martha Montalvo screwing me out of my HPD teaching work. It was really rewarding, a great retirement job and I would like to think I did a good job at it.
Life isn't fair and no system is perfect. I am sure that there are many fine attorneys that are not getting their fair share of work. They will have to deal with it just like I had do deal with my setbacks. They aren't any more entitled to appointments than I was to my DA job, federal appointments or my HPD gig. You are impliedly disparaging the lawyers high on the list you published with no proof that they are ineffective other than the suggested guidelines and your subjective beliefs. If they/we were ineffective as you claim simple statistics derived over thousands of cases would bear that out.

Anonymous said...

I'm not an attorney and I've got a couple of questions. I couldn't help but notice that 3 of the top four on that list have majority misdemeanor caseloads so my first question is do misdemeanor cases typically go faster than felony cases and my second question is is the NAC recommended case load for any type of case? I ask because it would seem that a misdemeanor theft charge like shoplifting could be fairly dispensed with much faster than a felony case like murder.

Anonymous said...

I was probably not clear--does the number of felonies listed for a person include any felony appeals they have had? Or are these numbers just trial/MAJ/etc. cases?

The other question was pretty clear: How many appointments does Fickman take?

Anonymous said...

The judges set case load numbers for attorneys when the Fair Defense Act was created. All the judges have to so is abide by their own guidelines.

Anonymous said...

God bless Fickman for exposing corruption at courthouse. Lots of donuts,baseball tickets,free use of vacation condo and who knows what else.That moves you up on list to get appointments.Judges arrive late and leave early.Pay 500 per day we heard for visiting Judges. Look to Judges not lawyers for the problem and solution.Judicial commission does nothing.

Anonymous said...

Waaaa. Quit wining.

Anonymous said...

There has been talk of Judges taking things improperly.Judges are human too. They get tempted to help their friends.In the 1970s a police office who is now a lawyer found a Judge taking bribes.Are little bribes the same as big bribes?

Anonymous said...

Murray,
If you take an even number of appointed and retained cases, you would be at the top of Robb's list. With 106 disposed felony cases in 2011, you were below the NAC guidelines. With 212 cases, you would have been far above the case count ratio suggested by the NAC.

Anonymous said...

The CJA Panel is a good old boys club that tries to limit those "not in Fickman's circle" from defending cases in federal court. It is ironic that Robb is focusing on the state system and not his own.

Robb,

How much money do you make on average from federal appointments?

Anonymous said...

here is a link to the Harris County plans

http://tidc.tamu.edu/public.net/Reports/IDPlanNarrative.aspx?cid=101

Anonymous said...

I'm starting to like this Robb Fickman guy. He writes like a stupid kid in need of a dictionary and a thesaurus, but he seems to be the bomb-throwing defense lawyer that Bennett likes to portray himself to be.

Rage

Anonymous said...

Fickman is becoming the role model for a whole generation of us newer lawyers. He seems to be fearless of the dead beat establishment in Harris County.

Anonymous said...

I'm an outsider and just curious, do those on the top take cases in surrounding counties? If those cases were added in, I bet some in the middle would rise up.

Anonymous said...

Executive brach of the State of Texas;
Thousands of cops;
Hundreds of sheriff's investigators and deputies;
Hundreds of deputy constables;
Easy and virtually immediate access to forensic employees, tests, and results;
A building full of ADAs, together with all of their support staff, administrative assistants, office budget, and even more investigators just in case the hundreds of other officers missed something;
A virtually unlimited number of expert witnesses and the budget for them;
Judges who were former prosecutors;
The ability to use junk science in a criminal courtroom that civil cases would have (or did) thrown out years ago;
Texas grand juries that will indict a ham sandwich; and
Texas petit juries that will, without a second thought, convict said sandwich.

VS.

One Defendant and, as a general rule, his sole lawyer.

Who has the harder job again?



Rage

Anonymous said...

And by the way Vic W., do you think the judges do all of that calculus when considering who to appoint? Of course not.

It seems to me that the only relevant statistic Fickman left out is campaign contributions.

Rage

Anonymous said...

Follow the Money and You will See

Richard D. Brewer said...

Regulators, mount up.

Anonymous said...

So, when we gonna hear something out of that carry over grand jury working with the Texas Rangers?

Anonymous said...

@ Rage 12:57,

As a former DA I don't often agree with you but this post is 100% accurate.

Luci Davidson said...

@ Rage 12:57...I was a prosecutor for 23 years and I tried a lot of serious capital murders. When I was let go in 2009, I was appointed as a special prosecutor on a capital murder since the new Lycos administration had a conflict. Although Judge Mendoza appointed me an investigator, it wasn't the same. I realized I had no real help at all. I had to drive to 601 Lockwood to check out the evidence, etc. Judge Mendoza had to make special arrangements for me to store evidence. I didn't even have anyone that could run the jury panel for me. It was probably the most difficult thing I ever had to do. I agree. State vs. Defendant discussions aren't even close when you talk about the resources. It gave me, truly, a whole new understanding of the system. When the County is in a budget crunch, you don't see the State losing many resources. It's indigent defense that gets cut and that should stop.

David Ryan said...

Anon 10:42:

The ABA guidelines for caseloads and funding have been endorsed by the federal courts, including the US Supreme Court (capital defense). The guidelines are quite clear - NAC Standard 13.2: 150 felonies OR 400 misdemeanors OR 200 juvenile OR 200 mental health OR 25 appeals.

Anonymous said...

I will be the 'independent agency' to oversee fair appointments. Pat Lycos

Anonymous said...

Luci--it's not just an indigent issue, although that's the volume of cases affected. Sure, the Rusty Hardin clients can afford a fair fight, but even moderately well-heeled defendants can't go toe to toe with the experts and resources and infrastructure, and it's going to take a revolution to get junk science out of the criminal courthouse.

Glad you have a new perspective though--and you were even doing the DA's dirty work for her. Those who are adverse are completely on their own.

Rage

Anonymous said...

Rage,
The reality is that most people who get charged with a crime actually did it. They just want to claim the facts are not quite as alleged and therefore, they shouldn't be found guilty even though, they did it. They want their attorneys to throw every roadblock they can think of (or make up) in the path of Justice hoping to get out on some legal technicality. There are some folks (in the major minority) who are actually innocent, usually because of eye-witness misidentification. I submit that because most individuals who are charged actually did it, but have their lawyers interject wildly unbelievable scenarios that would exonerate the guilty party, the State does everything in their power to keep said guilty party from escaping Justice (by hook or crook) thereby making it harder for truly innocent people from being convicted.

Scott C. Pope said...

6:17 I submit you are dangerously stupid

Anonymous said...

Checked Mr. Fickman's list. I noticed there were a lot of Spanish surnamed attorneys on it.
I am Latino.
Just have to believe that many of these attorneys were appointed to represent Spanish speaking Defendants.
What saddens me is the Spanish surnamed judges, the African-American judges and so called liberal judges who allow(ed) this to happen.










Anonymous said...

6:17,

You have a valid point to some degree. However, there are countless cases in the system where the individuals are innocent of the alleged criminal acts each is charged with.

The one variable in each case is glaringly obvious, simple: incompetent investigations and offense reports coupled with ADAs not doing any due diligence prior to grand jury presentation. The lack of exeperience on both ends of law enforcement only brings the innocent to its knees.

Pope,

Settle down. Quit taking everything so personal. : )

Anonymous said...

Is that you John Bradley?

Rage

Anonymous said...

Rate,
Convicting innocent people is an abomination and goes against the fabric of Justice in America. I wish you were as concerned about how many guilty people you have freed as the few innocent that have been wrongly convicted.
And no, I am not John Bradley. He is an embarrassment to all prosecutors.

Anonymous said...

Hey Rage,
Attempting to out a fellow anonymous commenter is not cool especially in light of how often Murray has covered your identity.
At least you're not trying to self promote your fabricated military fantasies anymore....geeze!

Anonymous said...

"I wish you were as concerned about how many guilty people you have freed as the few innocent that have been wrongly convicted. "

And which people are "guilty" that have been freed, exactly? What guilty persons have been let go after being duly convicted and sentenced? Please be specific.

Anonymous said...

Attempting to out a fellow anonymous commenter is not cool especially in light of how often Murray has covered your identity.

It was pure snark. Get a sense of humor.

Rage

Anonymous said...

10:17-
Quit being so self-righteous and disingenuous. As a defense attorney 99% of the time you know whether your client committed the offense. Your job is to make the State prove the case and look for ways to keep facts from coming into evidence. If that fails, you try to create error so the conviction can get reversed. As you well know, our Justice system operates according to certain rules of evidence in court. Establishing the truth is not always the outcome of a trial. A "legal victory" doesn't always mean the defendant is morally innocent. Glaring examples would be Cullen Davis and O.J. Simpson.

Scott C. Pope said...

"self-righteous and disingenuous"

This from the guy who KNOWS that 99% of those charged are absolutely guilty of whatever tehy are charged with.

No wonder you post anonymously.

Anonymous said...

Pope, you are a little slow this afternoon. I said 99% of the time the defense attorney knows whether their client actually committed the offense charged, not that 99% of their clients are guilty.

Anonymous said...

Pope the English teacher. Can write but can't read.

Anonymous said...

Is this Fickman man a real person? He seems to very out spoken and not afraid to fight the establishment.

Anonymous said...

We heard part of Channel 13 investigation is the mis use of county cars for personal use by employees. Could that be a form of dis honesty or misuse of county funds?

Anonymous said...

The form of dishonesty in the news is two of Lykos Incestigator hires in trouble over comic books. More evidence of her hiring unqualified people.

Anonymous said...

Lets not forget an extensive back groung check was done on those two investigators and the individuals whom conducted the backgrounds are still employed with Anderson.

Anonymous said...

Some of them need to be checked out what what we are seeing here...Lot of cronyism there.Channel 13 running it again.