House Committee on Criminal Jurisprudence - County Testimony... · House Committee on Criminal...

House Committee

on

Criminal

Jurisprudence

March 21, 2016

Texas Indigent Defense

Commission

James D. Bethke, Executive Director

Who We Are

Thirteen-member governing board administratively attached to the Office of Court

Administration. Jim Bethke is the Executive Director. The Commission has eleven

full-time staff.

OFFICERS:

Honorable Sharon Keller Chair – Presiding Judge, Court of Criminal Appeals

Honorable Olen Underwood Vice-Chair – Presiding Judge, 2nd Administrative

Judicial Region of Texas

EX OFFICIO MEMBERS:

Honorable Sharon Keller Austin, Presiding Judge, Court of Criminal Appeals

Honorable Nathan Hecht Austin, Chief Justice, Supreme Court of Texas

Honorable Sherry Radack Houston, Chief Justice, First Court of Appeals

Honorable Brandon Creighton Conroe, State Senator

Honorable John Whitmire Houston, State Senator

Honorable Abel Herrero Robstown, State Representative

Honorable Andrew Murr Kerrville, State Representative

MEMBERS APPOINTED BY GOVERNOR:

Honorable Olen Underwood Conroe, Presiding Judge,

2nd Administrative Judicial Region of Texas

Honorable Jon Burrows Temple, Bell County Judge

Honorable Linda Rodriguez Hays County

Mr. Anthony Odiorne Burnet, Assistant Public Defender, Regional

Public Defender Office for Capital Cases

Mr. Don Hase Arlington, Attorney, Ball & Hase

What We Do

Our Purpose

Our Grant Program

Our Fiscal and Policy Monitoring Program

Our Innocence Program

To provide financial and technical support to counties to develop andmaintain quality, cost-effective indigent defense systems that meetthe needs of local communities and the requirements of theConstitution and state law.

In FY 2015 $30.9 million awarded to Texas counties.Formula grant awards totaled $24 million (254 Counties).Discretionary grants totaled $6.9 million (18 Counties) .

The Commission monitors each county that receives a grant to ensurestate money is being properly spent and accounted for and to enforcecompliance by the county with the conditions of the grant, as well aswith state and local rules and regulations.

Since 2005 the Commission has provided up to $100,000 annually tothe University of Texas School of Law, the Texas Tech UniversitySchool of Law, the Thurgood Marshall School of Law at TexasSouthern University, and the University of Houston Law Center tooperate innocence clinics. In 2015 the 84th Legislature expandedfunding to include $100,000 per year for two new public law schoolsat the University of North Texas Dallas College of Law and the TexasA&M University School of Law in Fort Worth. This funding hascontributed towards 13 exonerations.

Texas Indigent Defense Commission | 2

Agenda

Background and Big Picture:

Pre-Fair Defense Act through the Present

Overview of Basic Appointment Systems

By the Numbers:

Trends, Funding, Caseloads


Background and Big Picture:

Pre-Fair Defense Act

through the Present


Gideon vs. Wainwright


In our adversarial system of criminal justice….

With government “quite properly” spending “vast sums of money to establish machinery to try defendants

accused of crime”.....you need

….. “procedural and substantive safeguard designed to assure fair trials before impartial tribunals in which

defendants stands equal before the law”

“This noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a

lawyer to assist him.”Gideon vs. Wainwright, 373 US 335 (1963)

Long Road to Make Indigent Defense Meaningful


Gideon vs. Wainwright

Texas Fair Defense Act

1963 2001

2016

15 Years of Implementation

Struggle to translate at state level the “right to counsel” into a meaningful indigent defense system

Pre-Fair Defense Act through Present

Prior to 2002

No state funding or oversight

No reporting requirements on spending or caseloads

No consistent standards regarding attorney training and

experience

Present

No uniformity in local indigent defense appointment practices

Judges’ discretion to select counsel, pay fees and determine

who is indigent fueled appearance of cronyism


Inconsistent quality of death penalty representation

Key process standards implemented

State provides some funding to support indigent defense

Commission created to provide oversight

Counties now report indigent defense plan and expense information to Commission

Attorney caseload and practice-time reporting pursuant to HB 1318 (83rd Legislature)

Attorney training and qualification standards adopted

Death penalty appellate attorney qualifications established


Overview of Basic

Appointment Systems

Four Most Common Types

of Appointment Systems in Texas

1) Assigned Counsel Systems

2) Managed Assigned Counsel Systems

3) Public Defender Systems

4) Contract Defender Systems

Many variations within these basic types

Some systems are a hybrid of two types


Which Type or System is Best?

• Each system type has unique advantages

and unique risks

• Any type of system can work well

• Any type of system can work poorly

• Most important:– Make the most of the advantages of your system

– Adopt safeguards to avoid the risks


What is an Assigned Counsel System?

• Most widely used in Texas (~75 percent of cases)

• Sometimes called “ad hoc” systems

• Private attorneys are appointed by the Judiciary from an

appointment list

• Attorneys are appointed to handle individual assigned

cases on rotating “wheel”

• Attorneys compensated as independent contractors


Potential Advantages of

Assigned Counsel Systems

• Utilizes existing pool of private attorneys

• Lets attorneys combine public and private practice

• Can attract top quality attorneys

• County not responsible for attorney overhead

o But County has to compensate for overhead


Potential Risks with

Assigned Counsel Systems

• No systematic attorney training

• No systematic attorney supervision

• No systematic monitoring of attorney performance

• No systematic monitoring of attorney caseload

• Lacks independence from judiciary if “wheel” not strictly

followed

• Can be refuge for incompetent attorneys


What is a Managed Assigned Counsel System?

• An option for counties to achieve some of the

benefits of public defender system within an

assigned counsel system

• Defense services are administered by:

o A county department; or,

o Non-profit entity under contract with the county



Managed Assigned Counsel System

Improved oversight and accountability of defense function:

• Systematic attorney training

• Systematic attorney supervision

• Systematic monitoring performance

• Systematic monitoring of caseloads

• Uses existing pool of qualified attorneys

• Shifts administration of defense function from courts to an defense entity

• Centralized forum for criminal defense lawyers

• Enhances independence of defense function

• Does not grow government significantly/uses private sector to provide direct

client services

• Better ability to apply for State and Federal grants


Potential Costs/Risks of

Managed Assigned Counsel System

• Some start-up costs

• Costs associated with administration of

program likely more than currently being

provided

• Choosing the right Managing Attorney is

critical.


What is a Public Defender System (PD)?

• Defense services and representation by:

o A county or state agency

o Non-profit org’n under contract with the county

• Analogous to prosecutor’s office on the defense side

• Attorneys are salaried employees

• Attorneys are full-time defense specialists



Public Defender Systems

• Predictable costs / easier to budget

• Systematic attorney training

• Systematic attorney supervision

• Systematic monitoring of attorney performance

• Systematic monitoring of attorney caseloads

• Ability to retain experienced attorneys

• Ability to fire less competent attorneys

• Reduced administrative burden on judiciary

• Resource for private bar and a structured voice for system improvement


Potential Risks with

Public Defender Systems

• Substantial start-up costs

• Difficult to implement/justify in small counties

• A “Bad” Chief Public Defender can cause big problems

• Caseloads can become overwhelming

o Creating disincentive to thorough representation

o Leading to high staff turnover

• Could become politicized


What is a Contract Defender System?

• Many different variations

o One private attorney or law firm contracts to handle all

cases or a small number of attorneys or firms contract to

handle a large block of cases

• May need a separate system for conflicts



Contract Defender System

• Low administrative costs

• Costs are predictable / easy to budget

• Uses existing pool of attorneys

• Low startup costs

• Attorneys likely to be defense specialists

• Attorneys may be full-time indigent defense


Potential Risks of

Contract Defender System

• Can create economic incentive to dispose of cases too quickly

• Economic disincentive too Investigate caseso Try caseso Utilize experts

• Can encourage a low-bid approacho Caseloads may then exceed original projections

• Usually no systematic training

• No systematic supervision

• No systematic monitoring of performance

• No systematic monitoring of caseloads

• Can become subject to favoritism or patronage


RPDO Evaluation Indicates

Program is Successful

Meets State Bar Capital Defense

Guidelines

Independence from Judicial Influence

More Prompt and More Frequent

Capital Team Appointment

Better Non-Attorney Defense Team

Services

Greater Investment in Mitigation to

Increase Plea Rates to Non-Death

Sentences

Fewer Cases Ending in a Death

Sentence

Lower Average Cost-per-Case

Value for Member Counties


http://tidc.texas.gov/media/18616/130607_finalcapitaldefenderreport.pdf

http://tidc.texas.gov/media/18616/130607_finalcapitaldefenderreport.pdf


Assessment of Harris County

Public Defender Office (HCPD)

1. HCPD meets ABA 10 Principles and most TIDC grant objectives.

2. Misdemeanor clients are more likely to be dismissed, less likely to go to

jail if convicted than match group, and on par for rate of re-arrest

following case resolution.

3. Misdemeanor cases take 5.5 hours to dispose, 8.8 hours in cases

where dismissal is the result.

4. In post-conviction cases HCPD receives more dismissals and has

higher reversal rate than Court of Appeals average; the Appellate

Division uniquely supports broader value added.


By the Numbers:

Trends, Funding, Caseloads

Office of Court Administration Statistics.

According to national statistics, violent crime has been decreasing since 2000.

(http://www2.fbi.gov/ucr/cius2009/offenses/violent_crime/index.html)

Case Filings Declining in Recent Years

From 2003 to 2007 case filings increased, but since 2007, total new cases have fallen by 19% (especially noticeable in misdemeanor cases).

0

100,000

200,000

300,000

400,000

500,000

600,000

700,000

2003 2005 2007 2009 2011 2013 2015

Misdemeanor

Cases Added

Felony Cases

Added

Juvenile

Cases Added


http://www2.fbi.gov/ucr/cius2009/offenses/violent_crime/index.html

While Case Filings Have Decreased,

Appointment Rates Have Increased

0%

10%

20%

30%

40%

50%

60%

70%

80%

2003 2005 2007 2009 2011 2013 2015

Felony

Appointment

Rate

Misdemeanor

Appointment

RateOther Significant Events

Rothgery vs. Gillespie County (2008)

82nd Legislature amended Art.

1.051 dealing with waivers of

counsel (2008)

Heckman vs. Williamson County filed

(2006) and settled (2013)


2015 Case Filings and

Attorney Appointment Rates

State of Texas Felony Misdemeanor Total

NEW Cases Added FY15 271,744 503,298 775,042

Cases Paid FY15 193,560 222,408 415,968

Cases Paid / Cases Added

FY1571% 44% 54%


Texas State Data Center, 2014 Population Projections

Texas Population Projected to Continue to Increase

17% of Texans

below poverty

line - 8th

highest in the

USA

20,000,000

25,000,000

30,000,000

35,000,000

40,000,000

45,000,000

50,000,000

55,000,000

60,000,000

2010 2015 2020 2025 2030 2035 2040 2045 2050

Rate from

2000-2010

One-Half

2000-2010

Rate

No Migration


Reported Caseload and Payments

Cases appointed

Cases disposed per attorney

Payments reported by counties

Amount paid to each attorney

Over 415,000 cases received

court-appointed counsel

From 1 to 1,353 –

Median of 45 total felony and

misdemeanor cases

To 6,259 attorneys across all counties

From $50 to over $497,000 –

Median of just over $16,000


Reported Practice-Time Figures

Practice-time reporting as of

February 4, 2016

Median percent of practice-time

devoted to appointed criminal and

juvenile cases across all counties is

about 57 percent

3,708 attorneys completed reports –

out of 6,259 attorneys for whom

counties reported as disposing of cases

and receiving payments


Indigent Defense Expenditures (in millions) by Fiscal Year

-

7.3

11.6

11.8

14.3

14.3

17.5

21.5

28.4

28.0

33.7

28.3

27.4

44.4

28.6

91.4

106.7

117.7

126.5

126.0

134.7

143.6

152.7

158.5

167.1

164.7

179.2

189.7

185.5

209.4

91.4

114.0

129.3

138.3

140.3

149.0

161.1

174.2

186.9

195.1

198.4

207.5

217.1

229.9

238.0

2001

2002

2003

2004

2005

2006

2007

2008

2009

2010

2011

2012

2013

2014

2015

State Expenditures County Expenditures


Average Attorney Fees Per Case

FY15

Assigned

Counsel

Public

Defender

Non-Capital Felony $651 $515

Misdemeanor $208 $209

Juvenile $394 $301

Appeal $2,733 $5,580


Legislative Charge: HB 1318

Not later than January 1, 2015, the Texas Indigent Defense Commission SHALL conduct and

publish a study for the purpose of determining guidelines for establishing a maximum

allowable caseload for a criminal defense attorney that… allows the attorney to give each

indigent defendant the time and effort necessary to ensure effective representation.


Texas Path to Indigent Defense Caseloads


http://tidc.texas.gov/media/31818/150122_weightedcl_final.pdf

http://tidc.texas.gov/media/31818/150122_weightedcl_final.pdf

National Caseload Experts

Prof. Norman Lefstein

Indiana State University

Adjunct Prof. Steve Hanlon

St. Louis University School of Law


Weighted Caseload Study

FINAL RESULTS


Recommended Maximum Caseloads

Felony 128 Cases per year

Misdemeanor 226 Cases per year


Case Weight Recommendations

RecommendationsNumber of Cases for

100% FTE

Misd. B 8.8 hours per case 236 cases

Misd. A 9.6 hours per case 216 cases

SJ Felony 12 hours per case 174 cases

Felony 3 14.5 hours per case 144 cases

Felony 2 20 hours per case 105 cases

Felony 1 27.1 hours per case 77 cases

2,080 Hours per Work Year

Recommended Hours per Case


Gap / Actual vs. Recommended

6.1 Hours

13.7 Hours3.1 Hours

2.5 Hours

0

5

10

15

20

Misdemeanor Felony

Ho

urs

Current Practice Hours for Effective Practice

50% More Time per Misdemeanor

19% More Timeper Felony


Attorney Caseloads Monitored

Caseload Guidelines are currently being used in:

Travis County Managed Assigned Counsel Program (CAPDS)

Lubbock County Managed Assigned Counsel Program

Harris County Public Defender Office

El Paso County Public Defender Office

Caprock Regional Public Defender Office

Bee, Live Oak, McMullen Regional Public Defender Office


Peter Drucker

You can only

manage what

you can

measure and

what’s

measured is

improved.


Smart Defense Web Portal Performance Metrics

Present Requirements/Measures under the Fair Defense Act:

Institute a fair, neutral, and non-discriminatory attorney selection process

Conduct magistrate proceedings promptly

Screen for and determine eligibility pursuant an adopted standard

Appoint counsel promptly for those that qualify

Ensure counsel’s qualifications, ability, and experience match the complexity of the

case

Pay counsel pursuant to the attorney fee schedule adopted in the local plan

Ensure same attorney continuously represents the client until completion of the case.

Require defense counsel to attend relevant continuing legal education


Other Indigent Defense Performance Metrics

o Court appointed attorneys are provided sufficient time and a confidential space within which to

meet with the client.

o Court appointed attorney’s workload is controlled to permit the rendering of quality

representation.

o There is similarity between a court appointed attorney and a prosecutor with respect to pay

and the court appointed attorney is included as an equal partner in the justice system.

o The court appointed attorney is supervised and systematically reviewed for quality and

efficiency according to nationally and locally adopted standards.

o Is program open and accountable in its operations?

o Does program measure performance?

o Does program keep time records?


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