Harris County (Houston) Commissioners have instructed the county's budget officer to examine public defender offices with the possibility of creating one for the county.
Let's begin with Liz Austin Peterson's news report in yesterday's Houston Chronicle, "Public defender office to get close look."
Commissioners Court agreed Tuesday to study whether Harris County should create a public defenders office and what kind of program might work.
The court voted 4-0 to instruct Budget Officer Dick Raycraft to conduct the study and report his findings by late September. Commissioner Steve Radack missed most of the meeting, but said he supported studying the issue.
Harris County is the largest urban area in the nation without a public defenders office. Instead, judges develop a list of independent lawyers who can represent indigent defendants.
After a lawyer is assigned a case, the judge decides whether to grant the defense's requests for investigators, experts and compensation.
Critics of the current system, including Democratic state Sen. Rodney Ellis, D-Houston, say poor defendants too often end up with incompetent or inexperienced lawyers or lawyers who lack the time and resources to effectively represent them.
And:
County Judge Ed Emmett said he would support creating the office if it would level the playing field for poor defendants, even if it costs more.
"This is about more than money," Emmett said. "At the end of the day we have to have the fairest system possible."
Radack said earlier this week that he would not support the creation of a public defenders office unless it saved the county money.
The county spent about $22 million on court-appointed defense attorneys last year to handle about 52,000 cases in county and district courts, Raycraft said.
A 2006 study by the Texas Task Force on Indigent Defense found the state's public defender offices improved the quality of legal representation for poor people while helping counties contain costs.
Raycraft said his staff will study programs in Texas and across the nation to figure out what might work in Harris County and how much it would cost.
Texas has 15 public defender offices.
Lisa Falkenberg has commentary in today's Houston Chronicle, "The voyage to defending the indigent." Here's an extended excerpt:
Indeed, a recent report on the juvenile arm of the Harris County system by the Annie E. Casey Foundation noted that it is "rather remarkable that a site this size does not have either an established Public Defender system," or similar options.
A well-run public defender office could only benefit a lopsided system with few quality control measures in which defense attorneys are appointed by elected judges worried about docket loads who decide how much, if any money, will be spent on investigators and experts to build a fair defense.
It's not like starting a public defender office is a highly risky endeavor. Even if an office is established in Harris County, Texas law gives each judge discretion on whether to allow public defenders in his or her courtroom. And any system would be inherently hybrid, still allowing private attorneys to be appointed to complex, capital cases or those with multiple defendants.
Experts I talked to said that, nationwide, few jurisdictions that go to a public defender office ever go back. Jim Bethke, director of the Texas Task Force on Indigent Defense, could only name one public defender office in Texas that approached failure (Wichita County), but even those folks have "righted the ship."
So, once the "if" question is answered, the conundrum will be "how?"
The options are plenty.
Is a wholesale reinvention of the criminal justice system in order, with a public defender office like Dallas' that would function in various courts, handling all levels of offenses?
Or is the incremental approach, taken by all large Texas jurisdictions, the right one? And if it is, which court should be the petri dish?
The clogged juvenile court system? Or should the office specialize in appellate cases, like the one in Bexar County? Or concentrate on mental illness, like the one in Travis County?
Proponents of a public defender office disagree.
The Rev. Robert Jefferson wants to see public defenders take on the whole shebang.
Jefferson, coordinator for the Houston Ministers Against Crime, said he envisions something similar to the full-scale Dallas model. And the office would maintain a relationship with churches to provide outreach to defendants who need it.
When I pointed out that Dallas didn't start out big — it took more than 20 years to grow from eight lawyers to 90 — Jefferson acknowledged that Harris County may have to begin with a smaller team, but that they should work in every court in which poor defendants are appointed lawyers.
Bob Spangenberg, whose Massachusetts consulting firm has been studying criminal justice systems for 20 years, said he'd start small, with young, eager lawyers. He suggested the county court level, where defendants facing less serious charges would have less at stake in a fledgling system.
"As those lawyers get experience, I would shift, gradually, to district court," he said.
That's a terrible idea, said Pat McCann, president of the Harris County Criminal Lawyers Association.
"The county courts aren't where the bleeding is happening," he said. "Where people need help and where we need resources are in places where you're getting hammered for 90 years in a sentence."
And I want to turn back to a March 13 Falkenberg commentary, "An idea whose time has come?"
As he pleaded his case to a group of Houston defense lawyers the other night, state Sen. Rodney Ellis knew he wasn't necessarily among friends.
"If you're not with me," the Houston senator sternly told members of the Houston Lawyers' Association, "I hope you figure out a way to be quiet."
There were doubters. Skeptics. Foes. People understandably worried about how the senator's grand idea would affect their careers.
And:
Ellis might get less resistance from defense attorneys than he expects. A few do-gooders are selflessly, shockingly endorsing the idea. Patrick McCann, president of the Harris County Criminal Lawyers Association, the county's largest defense bar, recently took a poll and the group's attorneys came out 2-to-1 in support of some kind of public defender office.
McCann refused to tell me how many of the 370 members participated in the poll — jokingly saying "it's more than 10" — but the fact that the group's president and its most active members supported the concept sends a message.
"I think our bar has come to an understanding that the playing field is so uneven, in terms of funding and resources," says McCann.
In Harris County, indigent defendants are represented by private attorneys whom judges appoint through a rotation system or on a contract basis. Defense attorneys complain that some judges aren't fair in divvying out appointments and some refuse to pay full costs for investigators and experts. And there are no real performance standards.
McCann says Harris County has gotten used to providing indigent representation "on the cheap." While the DA's budget is around $50 million, McCann says the county spent $24 million last year on appointed counsel. "The DAs have 30 investigators on their staff, on top of all the police they've got working for them, and we've got nobody," McCann says. "Five investigators (in a public defender office) would be such a leveling thing, you can't imagine."
Ellis also expects to get opposition from judges.
"The judges are fighting it," he told the lawyer group. "And the judges have gotten a few people who look like me and a couple who speak Spanish and some decent white folks, too, to buy into it just so they can get a few little old crumbs."
The few judges I talked to took issue with that statement, saying they wouldn't likely oppose anything that improves representation for poor defendants.
"Maybe he knows something I don't know," said Kelly Smith, staff attorney for 22 district court judges. "I've never heard any of the judges make a statement against a public defender's office."
The county's head prosecutor didn't voice outright opposition, either.
"I don't have strong feelings either way," said Bert Graham, who became acting district attorney after Rosenthal resigned. But he added, "I would think whatever gives the best representation for a defendant without breaking the county's coffers is the way you ought to go."
A recent study by Texas A&M University's Public Policy Research Institute suggested that, over a three-year period, public defender offices consistently achieved a lower cost per case to dispose both felonies and misdemeanors.
Still, the start-up costs would be substantial, even if the office starts out as a smaller operation specializing in appeals or juvenile court cases. It will be up to the powers that be to decide how much justice is worth in Harris County.
The indigent defense index is here.
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