In Comal County, a Big Deal for Indigent Defense

Following on my last two posts…

The complicated problem is that the Gideon decision created attorney-client relationships barely worthy of the name, between lawyers with conflicting incentives and clients without choices. Now a judge in Washington State and a county in Texas are trying to address that deeper problem in ways that have never been tried in the United States.

Their proposed solutions reflect competing schools of legal thought. The approach in Washington State is a top-down exercise of federal power, pushing lawyers to make sure they meet with their clients, tell them their rights, investigate their cases and represent them zealously in plea negotiations and at trial.

The one in Comal County, Tex., is a bottom-up appeal to the marketplace. Defendants there will soon be able to use government money to choose their lawyers in much the same way that parents in some parts of the country use government vouchers to pay for grade school.

The top-down approach is doomed to fail. For everything Judge Lasnik can dream up to force criminal-defense lawyers to do for their indigent clients, there are a hundred other ways the lawyers can do poor jobs. It’s criminal-defense policy Whac-A-Mole.

The bottom-up Comal County approach has some potential. If indigent defenders’ income, like “free-world lawyers’” income, depends on clients’ choosing them, some lawyers will excel and others will follow suit or fail.

That is the opposite of what can happen when indigent defenders’ income depends on judges choosing them, which is that some lawyers suck up to the judges at their clients’ expense and others follow suit or fail.

I’d be curious to know what political maneuvering was required to get Comal County to try the free market in indigent defense. Most of all, I’d like to know what the arguments were against it…and who made them.

18 responses to “In Comal County, a Big Deal for Indigent Defense”

  1. Mark-
    Federal District Court Judge Lasnik sees the
    Meet & plead system and calls it the “Meet & Plead” system.

    Our judges not only perpetuate the ” Meet & plead” system, many have the audacity to defend this farce as a “good system.” It’s good if your goal is to move cases without regard to the guilt or innocence of the accused. Other than that, it isn’t good for a God damn thing.

    Judge Lasnik’s solution is a step in the right direction. His intellectual honesty about the “plea mills” & ” meet & plead” systems is a refreshing change from the intellectual dishonesty and ” Meet & plead” apologists that we daily encounter here.

    Robb Fickman

  2. Indigent representation in capital cases improved dramatically in Texas from a top-down approach after statutory standards were implemented, so “doomed to fail” is strong. If there’s an argument against the Comal County pilot program it’s that the defense bar can’t or won’t police its own and you have the Maverick Rays of the world out there touting that they’re experienced enough to handle anything and their “office” has 100 years of experience, etc.. Most clients don’t really have a sound basis upon which to make such choices, especially while they’re sitting in jail. Many will just pick whoever’s billboard they remember seeing most recently.

    If you want to know more about the Comal system talk to Jim Bethke at the TIDC, who as I understand it pitched them the idea, or Dib Waldrip, the district judge who spearheaded it there. I never heard of much local opposition – the commissioners court’s approval was perfunctory and unanimous.

    But keep in mind, though the client gets to choose the lawyer, the state is still the paymaster. People who hire their own attorneys (sometimes) get better representation in part because they can pay for lawyers to spend more time on the cases. If the lawyers get paid the same and the judge still must approve money for experts, investigation, etc., in practice it may not turn out much different than the current system, especially if the bar can’t or won’t stop the sort of marketing that in the past you’ve referred to as “large-scale fraud.”

    As to Robb’s point: A the meeting where Comal county commissioners approved the new system, they were told to expect a 95-97% plea rate. If that turns out to be true, any improvements to the quality of representation will at best have been marginal. IOW, set your expectations to “low.”

    • Sure it would be better were the state not the paymaster. And I’m guessing that Comal County wouldn’t pay my customary rates. But ceteris paribus, client choice > judge choice.

      I’m doing my small part to stop the large-scale fraud. The State Bar doesn’t care much (I’ve filed several grievances, all to no avail), so the most I can think of to do is name and shame.

      • I very much appreciate your efforts on the large-scale fraud front, btw. It’s a big problem and most attorneys won’t even acknowledge it.

        As for “ceteris paribus, client choice > judge choice,” I’m not sure I agree. Too many variables to generalize. Depends on the judge; depends on the client. Some judges do try to pick the best lawyer for the defendant’s interest, some pick the lawyer most likely to move their cases, some pick the next guy (or gal) on the wheel or whoever gave them the most campaign contributions. And most indigent clients have no basis at all to make an informed choice.

        • You’re less cynical than I. I think that random selection would be a better system than the way ad hoc appointments are made now. Client choice is better than random selection because it increases client satisfaction.

      • Don’t get me wrong, I prefer the wheel system to “ad hoc” appointments and don’t defend them. But will client choice be better than the wheel? Maybe, maybe not. I certainly don’t think it’s superior to the PD model. I fear it’s likely to cause the most clients to go to the lawyers who spend the most on advertising.

        One could make an argument that it’s cynical to promote a phony perception of client control when the client has no real basis to judge and the system doesn’t alter the underlying dynamics, which are driven by economics. I’m okay with them trying it as a pilot – maybe I’m wrong. But like nidefatt, I think this is a rather lame, weak-tea reform compared to just ponying up for a public defender office. And since quite a few counties have created PDs in recent years, I think your pessimism that that’s impossible may be unwarranted.

      • Client choice for criminal defense also has its downsides. It’s possible that Neil Newbie could convince someone to hire him for a felony assault defense even though he’s not qualified; in a good appointment system that would ideally not happen. Still, I agree that client choice is still more preferable, if only because it makes it possible for things to work out much better. But I think it would be appropriate for the state to keep an eye on things a bit.

        My own preference (which I haven’t spent tons of time analyzing) is for a “minimum information” requirement.

        Imagine that you’re a criminal defendant with a voucher. You would be able to hire anyone you want, but they would have to give you the disclosure before you hired them. As an example:

        1) State the proportion of your practice in the last year which is devoted to criminal defense.
        2) State the years of full time practice during which you have devoted more than 50% of your time to criminal defense.
        3) Over the course of your career, state the approximate number of criminal defense cases which you have taken through trial as the sole defense counsel (or first chair ) from pretrial through final judgment.

        4) How many times have you handled the specific charge(s) listed above?

        And so on. Not actually being a criminal attorney, I would defer to others regarding the content of the list.

        This allows for client selection, and also inserts a bit of paternalism. But the paternalistic aspects focus on “making sure the choice is informed,” which frankly isn’t that much of an interference with the A/C relationship.

  3. The main problem with this system is money and attorneys. Indigent defense is also everybody defense. We represent a lot of meth addicted child molesters. In a “free market” approach, are all the players going to agree to represent anyone who knocks? Because the time and energy to represent the guy accused of 10 counts of lewd and lascivious conduct with a child will undoubtedly feel like it is worth more than a DUI case. So how will the pay differentiate?

    The state gets an office of attorneys who do nothing but prosecute. You don’t see the state asking permission to switch over to a system where they hire attorneys from a free market. The cheapest way to get the ugly cases a good defense is with an attorney with the sixth amendment tattooed on his chest, who has a salaried position and who has access to the right resources to put on a defense. No 50 bucks an hour model is going to cut it.

    • I agree. An independent PD’s Office is the way to go. Unfortunately, society doesn’t have the resources to prosecute and zealously defend everyone. Unfortunately, people choose, and will always choose, prosecution over defense.

  4. I have many friends responsible for the Comal County experiment and I do not question their motives. The idea comes mainly from a proposal by Professor Norm Lefstein, who is a friend, and someone I respect. However, I am highly skeptical whenever “the free market” is hoisted upon the poor. I do not question the ability of criminal defendants to choose. However, I fear their choices will be limited and ultimately a mirage.

  5. The problem as I have always seen it is that the poor, as a general matter, do not have the cultural resources to evaluate public defender legal services. For example, if a public defender tells a poor person to plead guilty because that is the PD’s best legal advice how is the poor person supposed to evaluate that recommendation? He’s no lawyer, so in most cases he has no rational basis to second-guess the PD. In many cases he’s not even college educated. So the poor defendant has nothing but blind trust to go on. Blind trust is a insufficient substitute for the “full information” necessary for a functioning market.

    So that is my question: how is this system going to help the poor defendant spend his money wisely? Is he going to be handed a scorecard with each attorneys in-court win/loss record? Is he going to be given data on which attorneys generate the best plea deals? Which come from the best law schools?

    Given money to the poor and then telling them to spend it how they like is not a market in any meaninful sense. Efficient markets require knowledgeable consumers and the “meth child abuser” is the epitome of an ignorant and vulnerable consumer of legal services.

    • I would like to see the county collecting and publishing client-satisfaction data for the lawyers taking appointments so that future clients could make better decisions. Absent that, the meth-head child-abuser might not choose the lawyer that I would choose, but at least he’s choosing.

      Much of defendants’ dissatisfaction with their court-appointed lawyers is a result of their not having chosen their lawyers: the lawyer you chose is always better, in a way (i.e. makes you happier) than the lawyer who was forced on you.

      The lawyer you choose and pay is even better; the lawyer you choose and pay lots is best of all.

      Besides, the lawyer who was chosen by the client is less likely to seek to please the judge than the lawyer who was chosen by the judge. So the client has a better chance of getting a lawyer who is not beholden to the court.

      Don’t get me wrong: this is not going to fix the system. If the system were fixable I would oppose anything that made people feel better about being crushed by it.

      • I disagree that defendants’ dissatisfaction “is a result of their not hav­ing cho­sen their lawyers.” It is the result of the lawyers doing nothing to establish rapport and failing to work hard on their cases. In the last 25 years of representing only persons who did not choose me, my clients were only satisfied when “win, lose or draw” I cared enough to fight for them. During that time, I have also seen defendants make bad choices with their money and regret it. It’s up to the lawyer to satisfy the client. Choice alone is insufficient.

  6. In the last 25 years of rep­re­sent­ing only per­sons who did not choose me, my clients were only sat­is­fied when “win, lose or draw” I cared enough to fight for them.

    I should, as usual, have said ceteris paribus.

    • I agree. With all things being equal, choice is better. An adequately funded PD and private bar are the first requirements for this experiment. That is why, according to Professor Lefstein, it works well in Scotland. No offense to Comal County, but it has yet to apply the comparable resources of the British Isles to indigent representation.

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