Tuesday, October 6, 2009

Lise Olsen's Weekend Article

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.


Anonymous said...

Murray, just out of curiosity, how many felonies are filed with the DA intake section each month on average? I was told a few years ago it was about 1500 per month, but have never been able to confirm that. Do you know?

Anonymous said...

Try 4,000 per month bro. Feb. had the lowest total so far this year at 4091. There are currently over 14,000 cases pending in the district courts, with an average of 666 per court. 40% of them are taken care of in a month, the rest obviously longer, with the average number of settings per case being 6.

For county courts, there are 12,740 cases pending, 850 per court.

Anonymous said...

Glad to hear you have alternative suggestions on bonds, of course, that doesn't mean we shouldn't do both things. Lots of people only want one little change, or really none at all, but if you make tweaks here and there the improvements will make a much greater difference together than any one thing on its own.

So, new bond schedule: good.
PD office and new bond schedule: better.

BLACK INK said...

PDs being paid the same way as ADAs should produce the same degree of work ethic. Each can argue that fulfilling a calling is more important than filling personal coffers with cash. What am I missing?

Anonymous said...

Murray, thank you thank you thank you for writing this! I was so mad when I read it this weekend because it was largely inaccurate. I also was mad because I didn't know many people as a prosecutor or as a defense attorney in Harris County who sat in jail for 17 months like the "example" the Chronicle highlighted -- of course they're going to pick a highly unusual and egregious case to make their illogical point. I've worked in four counties and Harris is both the busiest and the fastest at getting cases resolved. The wheels of justice may go slower than some would like, but a PD office isn't going to solve that! Has the Chronicle highlighted other counties in TX to argue they too need a PD system? For example, Galveston, where it takes three months alone to get a felony OFFER on most files? Or other counties I've seen that take three to four years to get a case to trial?! The whole story is crap. The writer ought to be embarrassed.

jigmeister said...

Black Ink, the problem with a PD is that it has to be funded equally with the DA to provide the quality that many argue is lacking with the present system. Particularly with capital appeals and other serious cases. That means equal salaries, support staff, training, appellate personnel and a proportional budget. Is the county willing to go there? If you are going to have 20 PD's and load 100's of cases on them as Dallas and other large cities have done, expect poor quality despite the best intentions of the PD's.

Obviously that has nothing to do with solving the jail overcrowding problems or the length of time a case takes to be resolved.

Thomas Hobbes said...

I have to disagree on a few points, Murray.

Defendants, as a group, do not remain in jail because of the size of the courts' caseloads. That explains why their cases take so long to resolve, but defendants generally remain in jail because they are unable to make bond.

I think you and I both know that one way to reduce the pending caseloads of the courts is to have all of the courts work full days. Often, while the other minions of the CJC are working to the late afternoon, the judges and their "employees" have long since departed the premises.

I don't agree that the judges need to revamp the bond schedule. I think they need to follow the law and do away with the bond schedule. They employ magistrates to do bail review, so let the magistrates do their jobs and give each defendant the individual review called for by statute.

Anonymous said...

Why is it we get better journalism on a blog than in the news? Does chron just higher the bottom of the barrel?

Anonymous said...

If the courts worked full days, there is no way that prosecutors and defense attorneys would be able to meet with clients, witnesses, and victims and do the work that needs to be done on each case in order to have it ready to be worked out or tried. This is not a complaint, but there is numerical proof that the HCDA has one of, if not the highest, caseload to prosecutor ratio. Comparable cities/counties across the nation have double to triple the number of prosecutors. And apparently there are court-appointed attorneys with a higher-than-recommended caseload. You can't move cases until due dilligence has been done on both sides. If everyone was in court all day, it would slow things down.

And as far as getting a trial if you want one, Murray is right... You can only try one at a time, and only so many per week. And you can't just bump trials up if everything set one week works out. Witnesses have to be subpoenaed, etc. Attorneys can only be in trial one case at a time, an often have courts book them on the same dates. Some of the cases have to be reset.

Revamping the bond schedule would get some people out of jail while waiting for their case to be over. That could make the wait better, but not necessarily shorter.

Judges can control their docket speed. Look at the 262nd and 185th, for instance. Those courts are in trial ALL the time and yet move their dockets as though they spent all day in court handling the cases. They are tough courts for the attorneys that are assigned there and attorneys that have clients in there, but it's manageable and for the most part, cases are resolved much faster. (I'm sure there's a few cases that are the exception that someone will point out, but overall I think this is accurate.)

If you look at the rise in caseloads over the past ten years, you'll find that it has almost doubled, if not more, yet the number of courts and prosecutors has remained about the same.

We need more courts, more prosecutors, and we'll need just as many public defenders to make a difference.

Anonymous said...

We need more courts and more prosecutors just like we need more Ricardo Rachells.

Anonymous said...

Ted Poe never had a backlog.

Anonymous said...

I miss the days of the heavy useage of visiting judges. Yeah, I know, many defense attorneys and some prosecutors don't like visiting judges, but it kept cases moving and hey, these retired judges need something to do.

I think the movement of cases has slowed dramatically statewide since the Leg reduced the amount of money available to pay for visiting judges back in the early part of this decade.

If Harris County dedicated the money they are contemplating for the PD's office to paying for visiting judges, do you think that would move more cases?

Anonymous said...

Visiting judges aren't the answer. They're for small counties where conflicts of interest cannot be easily resolved by transfer to another court. They're not a good ol' boy system for keeping retired judges employed.

Make the current judges stay til COB and dispose of cases quickly according to performance guidelines backed by a bonus system, and you'll see courts getting rid of some cases.

Anonymous said...

Anon 10:15,
Great idea. Bonus efficiency but also penalize inefficiency at the judicial level and problem markedly improved if not solved.
How dare judges and their staff work such paltry hours at tax payer expense; especially in these times.
Judicial work ethic would have been a better piece for the Chronicle to report on; but then again accurate and appropriate reporting is not their forte.

Anonymous said...

I often wonder how much of The Chronicle's reporting on criminal justice issues is colored by Jeff Cohen's relationship with Kathryn Kase. At times, the paper's lack of objectivity on matters related to law enforcement, prosecution and the courts is startling. Call me cynical but it's hard for me to believe that what starts as "pillow talk" at the Cohen house doesn't eventually make it into the pages of The Chronicle.

Anonymous said...

Anon 10:15

I'd love to hear more about this plan of keeping judges at the bench until the close of business. HA! Until the Chronicle does daily or weekly 5 pm sweeps to see which elected officials are at their desks or benches working at or near 5 pm, and they keep doing it, electeds will continue to feel that they can come and go at will.

And indeed, most judges work until COB. They know they have a good job, great benefits and retirement and they don't wanna lose it.

Of course, every county has it's lazy judges. I'm sure there are some in Harris County who need to have more dockets, more trials or just plain be more productive.

But making an elected do anything, is near impossible, unless public pressure is involved. Witness the current difference of opinion about the PD's office.

I suspect if the CC closes down the money trains to the judges that like their own independent fiefdoms of appointeds or attorneys for the day/week, they'll have no choice but to use the PD's office.

That could be one solution. Like an unfunded mandate. How many appointed attorneys will be on the gravy train if there is no money in the budget to pay them? I mean, yes, theoretically judges could refuse to participate in the PD system, but if CC said "too bad so sad", we're not wasting any more dollars on appointed attorneys, then the judges will sort of have no option.

Really, what could the judges do if CC refused to fund indigent attorney payments? If CC informed the judges it's our way (PD) or the highway, and that no more money would be paid to appointed counsel except in capital cases, boy howdy, that might create some judicial ire.

Because if I was on CC, I wouldn't want some judge telling me how the cow was gonna eat the cabbage. I think it would be hilarious to see CC unfund the appointed attorney payments, send notices to the judges and then stand back and see how many begin to use the PD's office.

These judges think that they can run the world. Someone needs to show them that they don't. They just run their little portion of the world, which is funded by taxpayers.

And defense attorneys are the last people we should be listening to when it comes to stopping the bleeding of tax dollars being paid to a few attorneys for appointed work.

Anonymous said...

Look at other counties that have a PD's Office and you will notice that about half of the cases are still referred to appointed attorneys. There are two reasons for this. One is that the PD's Office can only handle one defendant when co-defendants are charged with a crime. It would be a conflict for them to handle more. That means every time three or four defendant are charged together on a drug, burglary or capital murder case a private attorney will have to be appointed to represented a majority of the defendants (and I have yet to see the Chronicle mention this fact in their articles). Second, PDs place a limit on the number of cases they will handle (as opposed to prosecutors). I forget the exact jurisdiction, but a PDs office in Florida recently refused to handle any additional cases due to their caseloads. That decision about bankrupted the jurisdiction. If that were to happen here CC would be funding both a PD system and a large appointed attorney system. This is a real possibility given the rising dockets. And if you think the solution is to simply hire more PDs look at how hard it has been to approve, FUND and find additional prosecutors to fully staff the DA's Office.

Anonymous said...

These are the problems I see with the court appointed system. Lawyer gets a new case goes to the holdover and says sign here I have been assigned to your case. Client says ok what is going on with my case. Lawyer says I don’t know sign this reset. This goes on for 3-4 resets. Finally the lawyer says the offer is 3TDC, client says I’m not signing for that, is that the best you can do. Lawyer says ok you won’t sign I’ll set it for trial. Then lawyer goes outside and jokes with the DA about how dumb his client is and sets the case for trial. If you want to hear someone get talked to like a piece of crap then go hang out in the hold over and wait for some of these heartless court appointed lawyers. Murray I have seen you talk to your clients and you are nothing like what I have described above but you are the exception. Sometimes I just want to ask the lawyer what the heck they are doing.
The bond issue was already addressed how can the judges sit on the bench and make stuff up like a bond schedule, what happen to the law?
Finally if prosecutor would evaluate cases and give proper recommendation by the 3rd setting then cases would move faster. Real example, 35 year offer then moves to 18 year offer set for trial 7 year offer and client pleas. Where is the dang justice if the crime calls for 35 years then it is 35 years on the first day or the last day. So perhaps this case would not have sat on the docket had the prosecutor made a proper recommendation.
Our system is the best in the world so I am told. But we have some major problems and we all have to step up and try to fix the things. But since criminals are the ones suffering who one cares, and for the wrongly accused we will have a check for you if and when someone proves your innocence.

Anonymous said...

Anon 10:53, obviously you have never lost patience with a client, but those of us who have been around for awhile are guilty of doing so. I bet Murray will, at some point in time, lose it with a client. He just hasn't been doing this long enough yet. When you see some "heartless" defense attorney snap at a client, do you really know what has he has and has not done in a case? Do you know what the case is about? Do you know if there are multiple witnesses, the defendant's fingerprints and DNA were found at the scene and the defendant gave a written or videotaped confession, and is sitting there saying "I ain't taking no time on this?" How about if the defendant is double enhanced and you have worked out a 10 year deal, AND YOU HAVE NO DEFENSE. Do you think you might get a little snippy or frustrated at that point? Try putting up with that sort of thing for a few years, along with numerous members of the defendant's family calling you daily, and see if you don't lose it every once in awhile. Jackass.

Anonymous said...

"Where is the dang justice if the crime calls for 35 years then it is 35 years on the first day or the last day."

Yeah who cares about what an investigation might bring to light during the life of the case eh?


Anonymous said...

2:31 Dude, it's time for therapy or a job change.

Anonymous said...

"Where is the dang justice if the crime calls for 35 years then it is 35 years on the first day or the last day."

"Yeah who cares about what an investigation might bring to light during the life of the case eh?"



With 35 years we knew he was guilty but then we investigated and found he was only guilty for 18 years but with further thought and investigation we recognized he was only 7 years guilty?

"Sheesh" is right.