Thursday, July 11, 2019

Discretion and the MAC System

Like many criminal defense attorneys who work in Harris County, my law practice is a division of both retained and appointed cases.  In the ten and a half years that I've been on the defense side of things, my retained cases have increased, but I still take appointments on cases when my caseload can manage some new material.

For those of you unfamiliar with how the appointment system works in Harris County, an attorney who is approved to take appointments has the ability to go on the Harris County website and list himself or herself as available for either an individual appointment and/or a "term" appointment for a day or a block of days on the calendar.  If a court needs an "Attorney of the Day" (a lawyer who will work in the court and represent up to five defendants needing lawyers on any given day) and the attorney has checked the "term" appointment box, that attorney will be eligible to be called up.  If a court needs an attorney for just a case or two, the attorney who put in for an individual appointment would be eligible.

When the coordinator of the court needs an attorney for either "term" or individual appointment, the computer will generate the names of ten different attorneys who have listed themselves as being available.  The coordinator or the judge will then select someone from that ten-person field.  Additionally, the Harris County Public Defender's Office could also pop up as one of the ten options.

It should come as no surprise that the amount an attorney is paid on an appointed case is generally significantly less than what we routinely charge for retained cases.  That's not a complaint -- Harris County pays better than most other counties that I'm familiar with and there was a noticeable increase in the pay scale that went into effect in March.  But the bottom line is that indigent defendants in Harris County get some pretty damn good legal representation for a significant bargain to the County on a daily basis.

Attorneys who take appointments in Harris County find themselves in trial quite often and the more an attorney goes to trial, the better he or she becomes as a litigator.  Some of the very best lawyers that I tried cases against during my time at the D.A.'s Office were appointed and I think that if you ask any prosecutor or judge, they would express the same sentiment today.

Judges and coordinators know what defense attorneys do a good job, and more importantly, they know which ones don't.  Although the Court must select a name from one of the ten names that are provided to them from the electronic "Wheel," the Judges still have the discretion to avoid an attorney that isn't up for the case they are being considered for.  In that regard, discretion is definitely a good thing.

Critics of the current appointment system, however, point out that this discretion is also something that can lead to cronyism and potential abuse, and that is certainly a valid point.  In my earlier days at the D.A.'s Office, there were some judges that I saw appointing mind-numbingly bad attorneys on a routine basis.  I also saw attorneys who were powerful in the Republican Party or big donors that got a lot of mind-boggling appointments.  That being said, I saw that taper off significantly as new judges were elected to the Bench over the past fifteen years or so.

The critics of Harris County's current appointment system, led by County Commissioner and former-State Senator Rodney Ellis, are pushing hard to replace it with a new program known as the Managed Assigned Counsel (MAC) Program. This program would take the power of appointment away from the Judges and Coordinators and give it to a newly created entity that made the appointments in a rotation.   The County Court judges have largely agreed to it, but there is some debate amongst the District Court judges.  The District Court judges have been regularly meeting with each other and members of the Defense Bar to iron out potential details.

The MAC is something that would require a grant from the Texas Indigent Defense Commission (TIDC) and the TIDC is an organization near dear to Rodney Ellis' heart.  His former policy advisor, Scott Ehlers, is Special Counsel to TIDC and would doubtlessly play a large role in bringing the MAC to Harris County.  It is my understanding that the District Court Judges have requested more time from TIDC to research the project, but apparently, Ellis was not on board with this delay.

Today, I was provided with a copy of TIDC's Recommendations for a Unified Harris County Managed Assigned Counsel Program, a 22 page write up of TIDC's ideas of how the new MAC should be implemented and run.  Although it is doubtlessly well-intentioned, I have numerous concerns about how it would work in Harris County.   In no particular order, here are some of the biggest ones.

1.  The MAC should oversee the appointment and payment of counsel in all misdemeanors and non-capital felonies, as well as appeals and post-conviction matters.  A MAC can also oversee appointments in specialty courts.

So, two big things jump out in this particular recommendation.  The first being that the MAC system will oversee not just the appointment of counsel, but also the payment of counsel.  As it currently stands, when an attorney submits a voucher for the work done on an appointed case, the Judge of the court must approve it, edit it, or reject it.  Generally, that's a pretty good system because, you know, the judge actually observed the attorney handling the case in his or her court.  The MAC system is going to turn over what payments are made to an entity that isn't in court handling the case.  In essence, this is pretty much the same premise as a person's insurance company deciding what medical procedures a person needs, rather than the doctor.

The second issue is that TIDC also wants the MAC to decide who can do specialty courts (i.e., Mental Health Court, Veteran's Court, Responsive Interventions for Change Court, etc.)  These particular courts rely on a stable of attorneys who practice solely in those courts on a daily basis.  These are courts that can be complicated as they are designed to rehabilitate rather than incarcerate defendants.  In these courts, it is absolutely critical that there are long term attorneys who are handling the caseloads and are familiar with how the courts work.  A MAC System that assigns a revolving door of appointments to random defense attorneys would be extremely counterproductive.

2.  Attorneys will generally be assigned to cases on a rotational basis, taking into consideration attorney experiences and expertise.  Investigators will be assigned to cases when requested by attorneys.  Experts will be approved by the MAC when requested by attorneys.

Attorneys being assigned on a rotational basis ensures that every attorney on the appointment list actually gets an appointment every now and again.   The rationale for this being that some attorneys get appointed on more than their "fair share" of cases, while some are never getting called.  This rule is designed to be fair to all of the attorneys.

Here's a spoiler alert:  the Indigent Defense System is not designed to make sure that attorneys are treated fairly; it's there to make sure that the CLIENTS are treated fairly.  Attorneys who get more appointments just might be getting more appointments because more judges have confidence in those attorneys' abilities.  If an attorney is on the list and never getting an appointment, one might want to know if the reason is that judges don't have faith in the attorney to do a good job.  Appointed attorneys are taking a client's life into their hands -- it isn't time to make sure that everyone gets a participation trophy.  Would you be comfortable going into heart surgery and being told "Well, Dr. Smith is the best heart surgeon in Houston, but we're giving you Dr. Jones because he hasn't gotten to do heart surgery lately."

As it currently stands, when a defense attorney wants an investigator or an expert on his or her case, he files a motion with the court for approval of funds to hire an expert.  Those are routinely granted and the defense attorney may then pick the investigator or expert of the attorney's choice.   I've been a lawyer now for 20 years and 11 of those have been as a defense attorney.  I tried a lot of investigators over several years before settling on the one I now use on ALL of my cases.  I've also identified and continue to use DNA experts, psychological experts, mitigation experts, and other experts that I know do a good job and I can trust.

Under this proposal, the MAC would have the power to deem whether or not I was worthy of an investigator or an expert.  If I was to be so blessed by this government entity to receive approval to have an investigator or expert, the MAC would then assign me one of their choosing.

This falls under the category of "are you f'ing kidding me?"  As a lawyer, my duty is to the client and to provide the best defense possible.  This includes me using my knowledge and discretion to choose the personnel needed for the case.  What if I have a personal conflict with the investigator?  Or I just know that investigator doesn't do a very good job?  Tough luck.  The relationship between an investigator and an attorney is absolutely critical.  My investigator (although obnoxious) does an amazing job for me on all of my cases and he's self-directed.  I couldn't get by without him and I don't want to work with anyone else.  That's not a slight to other investigators that I've worked for.  We just work well together.  (Don't get a big head, Roy.)

The idea of the MAC being the decider of "if" and "who" on investigators and experts is obscene.  Period.

3.  [The MAC will employ] Supervising attorney [to] assist assigned attorneys and ensure assigned attorneys are providing high-quality defense services.  Supervising attorneys should do such things as:  observe attorneys in court and trial and provide feedback on their performance; assist attorneys in preparing for trial, strategizing elements of cases and answering legal questions; serve as second-chair; respond to an investigate complaints about attorneys from judges, clients, and client family members; ensure attorneys are visiting clients at the jail; and conduct annual attorney performance reviews.  Supervising attorneys should also document attorney performance deficiencies, complaints, and disciplinary matters in the attorney's file, as well as begin any necessary proceedings to move an attorney to a lower level appointment list or remove an attorney from the appointments list due to not meeting the MAC's standards of attorney performance.

I don't even know where to begin with this part. So, the MAC will be staffed with "supervising attorneys" who will, in essence, serve as employers for all of the attorneys who take appointments.  They will give performance evals and keep a disciplinary file on us.  Um, a  disciplinary file?  Isn't that what the State Bar is for?

And the Supervising Attorney is going to investigate complaint's from the "client family members?"  Here's a newsflash, TIDC.  Lawyers don't owe a duty to a client's family members -- many of whom are verbally abusive, unreasonable, and not entitled to know a damn thing about a client's case without the client's permission.

More troubling is that the MAC's Supervising Attorney will be an appointed attorney's de facto second chair.  So, not only does an appointed attorney get a random investigator and expert shoved down his or her throat, he or she also gets a mandatory second chair that he or she may or may not even know.  Sounds great!  I look forward to seeing what supervisor I'm going to get.  I wonder who will be supervising Skip Cornelius or Tyrone Moncriffe or Danny Easterling.

I find this portion to be so amusing because the whole idea of the MAC is to make sure every lawyer on the appointment list gets an appointment, but the ones who will be appointed on every case will be the MAC lawyers.  Nice.

At the risk of sounding like the kid who is threatening to take his ball and go home, I've got no interest in continuing to do appointments under the MAC System.  I can't imagine any attorney with a significant amount of experience agreeing to work under those circumstances, either.  If the System runs off the experienced attorneys, guess who that leaves?

If the MAC System is implemented in a manner that even vaguely resembles these suggestions, the quality of Indigent Representation will fall and fall dramatically.


Anonymous said...

The current system is grossly abused by a few lawyers and judges. It has been since SB7 passed. Some judges only appoint buddies. Some lawyers embellish bills. Something has to change. The juvenile system is grotesque. Appointing lawyers to kids that aren’t even arrested or indigent.

Murray Newman said...

Anon 7:07 p.m.,

I would agree with you completely about SOME prior judges and wholeheartedly about the juvenile system.

However, I think that the new juvenile judges have turned it into a whole different ball game. And I think things are far better than they used to be.

Also, what's really to stop the MAC from promulgating it's own form of cronyism?

Anonymous said...

Nothing. Judges can be voted out. MAC replaces that with a layer of bureaucracy.
Understand the bigger picture. This is about pushing everything into the PD’s office in one form or another. Whatever the motivation, these steps are move the power from the courts and private bar to an entity under the direct control of the commissioners court. The MAC oversight process makes it particularly clear what is going on.

Glenn Dodson said...

I’m not an attorney, so some might say my opinion doesn’t matter. I have, however, been working as a Spanish/English interpreter in the District courts for over 28 years. I’ve seen all kinds of attorneys on both the defense and the prosecution side. I’ve seen those I thought were great, good, average, poor and terrible, on both sides. And I’ve seen some of the best attorneys “appointed” by judges on some of the worst most difficult cases. And I’ve seen many of them get great results. I think the worst thing about this system would be taking the management of the case away from the attorney. I certainly wouldn’t want some board of bureaucrats telling my doctor what to do and how to go about it.
I know that those of you that know me know I’m politically outspoken, and thank God some of you are friendly to me anyway, so here goes my political opinion. This is a Democrat idea for bigger government. It will be a detached govt. bureaucracy, that knows nothing about what’s going on in the courts on an everyday basis. Another bureaucracy for which tax payers bear the cost. Definitely a democrat idea. And a bad one. Pray I never need a court appointed attorney if this system is put in place.

Jefe said...

Murray, you have done a service in reviewing and commenting on TIDC's MAC proposal. However, the tone of your analysis is a bit like the Republican response to Obamacare -- that these are "death panels." The plan does not call for the MAC to choose your investigators or experts. The only difference from current practice is that --instead of a judge who has an interest in how quickly and cheaply the case is resolved -- the approval will come from those who appreciate the need for resources. The idea is to promote the use of investigators and experts, not discourage them. The average cost for investigation in a misdemeanor in Harris County is about 82 cents. That comes from a history of parsimony by judges and self-censorship by lawyers. That culture does not change by an election. The fact that there are good lawyers like you, Skip, Tyrone and Danny, who push for resources, investigate and research their cases, is not the end of the story. There are still lawyers who file one-page appellate briefs, who consider a client interview to be shouting a plea offer into a holding cell and who keep no files. A MAC alone will not assure that cultural change, but it will limit the lawyers to those who are competent and apportion the work by them to reasonable caseload maximums.

Anonymous said...

I've only taken a couple of CA cases because I wanted to concentrate on the type I knew I'd be specializing in, but all of my first partner's cases were CA. She quickly learned that going to trial was frowned upon by most judges who preferred that CA cases be pleaded thereby freeing up valuable docket space for those who could afford to pay costs, especially in the felony courts. That was back in the late 80's but I assume it's still the same way or is even worse now. I think MAC will be blind to those who take cases to trial thus actually insuring indigents receive better representation.

Tom said...

For what it's worth, I've heard the Travis County managed court appointment system has been an absolute disaster. I don't know a lot of details but I understand a few lawyers are getting tons of appointments, far more than they can competently handle.
Sound familiar?

Anonymous said...

Anon 11:41. That is total bull Shit! Nobody , I mean nobody gives a damn about court costs. They are NEVER paid. You sound like aRodney Ellis TOADY. You are misinformed. I have been there since the late 80’s.

Anonymous said...


You are right about court costs but judges definitely give a damn about overburdening courts with crowded dockets so they most certainly are biased against trial attorneys. I'll have to agree with 11:41 in regards to MAC not having the same bias.

Anonymous said...

Many of the current judges whine about their trial dockets but NEVER go to trial. If you never go to trial you will have a big trial docket. This will be true with or without MAC. Also some judges will still try to coerce pleas with MAC in place.

Anonymous said...

Who is paying for all of this?

I live in Harris County. I pay taxes in Harris County. I get robbed in Harris County. You're saying that by paying my taxes, I am unwittingly paying to defend the man who robbed me?

Any everybody is okay with that?

Anonymous said...

An overplanned, underdeveloped bureaucracy that doesn't remotely consider unintended consequences and has the opposite effect of the intended purpose? Say it isn't so!

Paul J. Smith said...

I used to practice in Harris county, Texas and part of my practice was court appointed clients. If one thinks that the pay is enough to justify the hours and hours put into the work, they are sadly mistaken.
I can say that most, but not all attorneys are conscientious about the work they do. Of course, there are exceptions as you know.
A couple observations I might make after being away from the Harris County appointment system are simple these:
1. Most of the time, the attorneys that give a damn are grossly underpaid, and
2. I felt this way before when "tort reform" came into being in the 90s.
I am wondering who will tell the best lawyers that they spend too much time on a case, or too little time on it, when the "overseers" probably wouldn't know their way around the courthouse, let alone have tried any cases.
A glaring example is the Paxton prosecution coming to light. It kinda reminds me of Texas vs. Cullen Davis, except the prosecution's hands are tied without adequate resources to counter the "Billion Dollar Defense Team".
I remember running into this problem when facing the resources of Texas and no money for our experts.
Anyway, I see substantial problem with this system, not just for the lawyers, but for the defendants.
Who will the defendants claim ineffective assistance of counsel against? The overseer or the attorney who signs on the pleadings?
All in all, a terrible idea in a society where prisons for profit are the norm.
Remember, this is the first step in destroying the 7th amendment, right to trial. It happened in divorces, worker's comp, etc., and it can happen here in our criminal system.
I wonder if the overseer will qualify for immunity and the defense attorney is left holding the bag, or whether the rules committee will say the trial was lost because the overseer wanted to save a few dollars?
I highly doubt it. Ake will loose its meaning entirely.

Anonymous said...

How many defense lawyers out think, "Know what I need in my life? A supervisor!" Being your own boss is a huge perk of the profession, and the freelance nature of defense lawyering is a defining element of the defense bar. If the Harris County defense bar rolls over and accepts government employee supervision, my opinion of them will plummet. Then they'll be just like prosecutors, minus the ethical obligations to society.

Anonymous said...

This is just great I just got out of this special new RIC COURT as a defendant who was released on a PR BOND last week. I am disabled and asked for court appointed attorney. I have been downtown every day since released now today is day 3 standing in over crowded court of mass confusion to be told they don't have attorney yet and I was reset for thursday. Let's remember I am innocent until proven guilty and have no attorney to represent me. I got on internet to see if I could find friend that's attorney tell me where to start and ran across this blog. I was planning to fight this till very end now I'm no attorney that's for sure but had I just sat in jail for week I would probably already be done with this ane moved on with my life. Of course that would mean say I'm guilty plea to lesser charge I didn't commit so I could just get out of jail as soon as possible. I would not be able to come up with bond money or pay for attorney to help me AND ISNT THAT THE REASON FOR THESE "Specialty program's" in first place? I'm not a threat to society I do have mental health issues and I do like smoking marijuana so I will sign anonymous and wish like hell I didn't get caught up in this BULLSHIT. It looks like now I will need a attorney AND a bondsman to get me off this PR BOND and put me on regular bond where I know I can meet their condition??
Is this a joke? They say I'm the crazy one Lol go sit in B Thomas court no I'm sorry stand because there's nowhere to sit it's over crowded with.poor minorities, mentally ill and veterans all in need of attorneys and real help cause that is a disaster that's only going to put them in jail at the end anyway.
I was arrested last week and nobody could tell me what I was being charged with untill today??