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 there.  Judge 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.