For a Public Defender’s Office

(I write blog posts offline in Ecto. When I have a new idea for a post, I create a new post and title it, then set it aside until I feel like writing it. This one’s been brewing for a while, so I wanted to get a couple of thoughts down in bits and bytes even though they’re far from complete or even well-developed.)

Criminal defense, which does not involve the use or threatened use of deadly force, is not the sort of thing that governments are good at. But government, having created the need for criminal defense counsel for the indigent, is bound by fairness to ensure that the need is filled effectively and efficiently. That is, the government must to what it can to ensure that indigent counsel do a good job at as little cost to the public as possible.

There are many fair criticisms of public defenders’ offices. Most of the problems with a public defender system, though, are intrinsic to the government’s provision of indigent defense services, rather than to the form in which the government provides those services. In other words, the problems with a public defender’s office do not make it worse than an ad hoc system in which judges appoint counsel per case, per day, or per week. A public defender’s office could be more or less effective, more or less efficient than an ad hoc system. A public defender’s office in Harris County will, I predict, prove both more effective and more efficient than the current ad hoc system.

The current system of providing felony trial counsel to the indigent in Harris County often succeeds at providing effective representation. The days of the sleeping lawyer, which made Harris County a worldwide laughingstock, are past. Some of the great Harris County criminal-defense lawyers take felony court appointments, especially capital appointments and, as AHCL implies, often get spectacular results. But these are not all of the lawyers or all of the results. The quality of the representation provided by court-appointed criminal lawyers in Harris County varies wildly.

A public defender’s office will provide a framework for lawyers to provide effective representation. Under the current system, the only people grading the lawyers’ work are the writ lawyers, and the only standard is Strickland. A public defender’s office will have office policies and standards that go beyond the risible bare minimum representation required to pass Constitutional muster in the appellate courts (remember: both the Court of Criminal Appeals and the Fifth Circuit Court of Appeals thought that it was perfectly acceptable for a lawyer to sleep through portions of his client’s capital trial). The Public Defender — an experienced criminal-defense lawyer with a history of dealing with the county bureaucracy — can train his assistants to provide effective representation, so that there is no inconsistency.

Among other things, a public defender’s office can maintain standards in the area of investigations. Ad hoc lawyers are at the mercy of the district court judges in getting approval for investigators, including mitigation specialists. A court-appointed mitigation specialist in a non-capital case is, as far as I can tell, unheard-of in Harris County. Harris County judges are, according to defense lawyers with court-appointed practices, stingy with funds for investigators of all sorts. Worse, Harris County judges are known to cut investigators’ fees after they have done their work. Try getting a mitigation expert to return to work on a Harris County case after a Harris County judge has slashed her fee. A public defender’s office would, like the Harris County District Attorney’s Office, have a staff of dedicated investigators to use as needed without seeking the approval of the court. The office would also have a budget that it could use for outside investigators and experts if necessary, without the micromanagement to which court-appointed lawyers can be subjected.

With a couple of assistant public defenders assigned to each court, the DA’s office will lose its home-court advantage. This will improve the effectiveness of indigent defense. It will also improve its efficiency, since there are economies of scale and, in Pat McCann’s words, “economies of efficiency” in a PD’s office that don’t exist in an ad hoc system. Lawyers assigned to a court will learn to perform their jobs more efficiently so that they can help more defendants more with less wasted time. In-house investigators will cost the County less money than ad hoc investigators. Instead of paying the lawyers and requiring each to cover her own overhead, a PD’s office will consolidate the fixed overhead of the lawyers representing the indigent.

A PD’s office will be a voice for the indigent generally as well as in each case. The PD can and will challenge systemic problems in ways that ad hoc appointed counsel can’t or won’t do. For example, the PD can press for a PR bond in every appropriate case. Another example: the PD can also resist the judges’ illegal policy of removing appointed counsel when an indigent defendant’s family bails him out — something that appointed lawyers seem not to be motivated to do even on individual cases. (This is part of the problem of the working poor, about which I’ll write more later.) The PD’s caseload will give it a voice in the system that individual lawyers can never have — the kind of voice that HCCLA tries to exercise pro bono.

There are numerous studies and summaries of the performance of PD’s offices in comparable cities. Dallas is the closest analogy in Texas; the numbers show that the PD’s office costs the county considerably less per case and per defendant than ad hoc appointed counsel. It’s going to become clear to the County Commissioner’s Court in the next five months (Management Services’ study should be done around September 1st for the county’s mid-fiscal-year budget review) that government can provide more effective representation more effectively with a public defender’s office.


0 responses to “For a Public Defender’s Office”

  1. Institutionalism. Institutionalism gives rise to organization. It gives rise to culture. It births ethos. An ethos that will extend even to those practicing criminal defense outside the institution itself. A PD’s office institutionalizes liberty.

    While you make great points in favor of a public defender office, I think institutionalism (or, more precisely, what institutionalism gives rise to) is a PD office’s most valuable contribution to indigent criminal defense. No longer will criminal defense attorneys in Harris County be islands. (Sure, there has been the HCCLA, but that is, in comparison to a publicly funded public defender office through which attorneys directly work, a weak institution.)

    The lack of a strong counter-institution to the DA’s office in Harris County all these years is, at least in part, what has allowed it to grow so callous and mean-spirited. The institution of the DA’s office has tipped the scales of justice in Harris County for far too long. A PD’s office will provide the counterweight to zero out the balance.

    The more institutions dedicated to the pursuit of life and liberty, the better.

  2. As you might expect, I like the PD system, and I hope the new one in Houston works out.

    A note on home field advantage for the DA: We have 8 lawyers, 3 assistant/paralegals and 1 investigator.

    In comparison, the DA’s office has 10 lawyers, 10 assistant/paralegals, 8 investigators, and the services of the 2 city police forces, county police, county sheriff, state police and county drug unit.

    Your mileage may vary – but I expect that the set up will be much the same: with the DA having more personnel, more resources and more general support.

    Another example: The DA here can have experts whenever they want them. For us to get an expert is like pulling teeth without lidocaine – and forget it completely for a misdemeanor like DUI.

  3. Ruffy points out the central problem. The DA prosecutes all cases and the PD only indigent cases. Therefore funding bias will always be slanted towards the DA. Getting the taxpayer sensitive commissioners to sign off won’t be easy, and insufficient funding will be worse than the present system.

  4. PJ, I’m generally anti-institutionalization. In most cases it stifles creativity, freedom, and growth. I’ll consider whether you are right and whether I am wrong.

    SC, Jigmeister, I don’t see this as a problem.

    Pay should be the same between the two offices, and staff ratios (number of investigators, secretaries, paralegals, etc. per lawyer) should be comparable (eight lawyers absolutely need more than one investigator!), but the DA should be more heavily funded than the PD.

  5. I am wondering why there seems to be an assumption that a PD’s office should have have the same funding as a DA’s office. Why on earth should it?

  6. It should have a proportional funding. If they handle 1/4 of all criminal cases filed then their funding ought to be 1/4 of the DA’s funding. Far too much PD’s have budget problems that impact their ability to appropriately handle cases. Remember also that the police do the majority of the investigation for prosecution, so even 1/4 would be disproportionate. Also remember that the methods that court appointed attorneys have to get funding won’t be available to the PD’s.

  7. Other than from a stance of “fairness,” why should a PD’s office have even proportional funding? Does a right to counsel mean counsel that is monetarily equaivalent?

  8. I can understand the reticence regarding institutionalism, but I think institutionalism, per se, is neutral. It all depends on what norms are being institutionalized. In the case of a PD’s office, it is hard to go wrong as far as the effect of institutionalism is concerned because a PD’s office will be defending liberty.

    Institutionalism is really the only way to overcome the pitiful attitude the Harris County public has regarding crime and the criminal justice system. If you want the public to be a staunch supporter of a defendant’s constitutional rights–as opposed to, say, viewing them as mere “technicalities” that prevent true “justice”–then you need a strong institution pushing those values. If the only institutionalized view is the prosecution’s, public attitudes won’t change.

    Jigmeister, agreed to your last comment.

  9. One disadvantage of a pd’s office is that there will only be so many spots available for attorneys who want to work there. The existence of a pd’s office will naturally cut down on the number of appointments available for young, inexperienced, but still very passionate budding defense attorneys. So while a small number of young attorneys will get a wealth of defense seasoning in the pd’s office, many young solos will be deprived of the appointments they need for both financial and experience development reasons. This will hurt the profession and the quality of indigent representation as a whole.

    In my own brief tenure in the law, I’ve learned a tremendous amount from my court-appointed clients, and that allowed me to better represent court-appointed and retained clients who came after them. I never treated court-appointed clients any differently than retained clients either, both because of my ethics and because of my desire not to let down the judges who authorized the appointment of these clients to me.

  10. When I first started practicing law, I called Federal Public Defenders quite often for information on federal cases. If I have a Federal case in an unfamiliar jurisdiction, I’m still not shy about calling the PD’s office to get some background on the judge, prosecutor, etc.

    IF the PD’s office sees part of their job as assisting the criminal defense bar in general, their ability to create a massive filing cabinet (tons of pre-trial motions, etc.) and to make that available will be a real asset. Most defense lawyers are solo practitioners, while the DA’s office has thousands and thousands of documents they can rely on. We can ALL do a better job, with the resources of a PDs office available to support us.

    Now, if the County establishes a crappy PDs office, then of course it will not be an asset. The issue, to me, is not whether to support a PDs office, but whether to support the PDs office the County is willing to establish. And until we see the dimensions of that office, I’ll have to remain optimistic, but neutral.

  11. I am a student researcher at the Earl Carl Institute Thurgood Marshall Law School here in Houston. We are putting on a symposium to advocate creation of a PD office here in Harris County. Any information you can send me would be helpful. Also if any of the defense bar would like to participate/ sponsor, let me know and I will pass it to the Director. I am really excited about this program, and as many of you have indicated here, I think it would be of benefit all the way around. Please contact me at the email address above with questions, comments, or information.

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