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Alex Bunin

Commissioners Court approves bail lawsuit settlement

Excellent.

Harris County Commissioners Court approved a historic settlement Tuesday fixing a bail system a federal judge found unconstitutional and ushering in a new era for criminal justice in one of the nation’s largest metropolitan areas.

The deal resulted from months of intensive negotiations between the county and lawyers for indigent misdemeanor defendants who sued over a two-tiered system that jailed people prior to trial if they couldn’t pay up front cash bail but allowed people with similar backgrounds and charges to resume their lives and await trial at home.

“This was the result of careful negotiation,” County Judge Lina Hidalgo said just before the commissioner’s voted 3-2 to approve the deal.

The vote split along party lines. Commissioners Jack Cagle and Steve Radack, the only Republicans now on the the commissioners court, voted against it.

The settlement agreement — which still must be approved by a federal judge — installs a monitor to oversee the new bail protocol for seven years. It provides comprehensive public defense services and safeguards to help ensure defendants show up for court. It will allow about 85 percent of people arrested on misdemeanors to avoid pretrial detention. The settlement also calls for transparent data collection, which will allow the county to keep better track of what’s working and what isn’t.

You know the background, so see here for the previous update. I can only wonder what would have happened in a world where Democrats swept the judicial races but failed to win those two seats on Commissioners Court. I feel pretty confident saying that as of July 30 in that alternate universe, there would not be an agreement in place. Elections, they do have consequences. Congratulations one and all for getting this done.

Final bail settlement reached

We are coming to the end of a very long road.

A long-awaited settlement in Harris County’s historic bail lawsuit won tentative approval Friday from all parties, setting up a possible end to a contentious system that kept poor people behind bars on low-level charges while those with money could walk free.

The agreement — if approved by a federal judge and county officials — would formally adopt the judge’s findings and modernize the way local officials handle bail hearings for the steady stream of people arrested every day on misdemeanors.

Key reforms in the lengthy consent decree include revised judicial protocol, access to more public defense services, open court hours for defendants to clear or prevent warrants, as well as text reminders about hearings and a bail education program for officials and the public. The county will have a court-appointed monitor for seven years to oversee implementation.

The county also would agree to pay about $4.7 million in legal costs for the plaintiffs, on top of the $9.1 million already spent to contest the lawsuit. An additional $2.1 million in legal fees has been waived by the Susman Godfrey firm.

Commissioner Rodney Ellis, who has championed bail and criminal justice reform for decades, called the agreement one of the highlights of his career.

“It’s a major civil rights victory that will have national implications,” Ellis said. “This fixes a broken system that has traditionally punished people based on how much money they have before they are convicted of a crime.”

The deal could provide a road map for other jurisdictions around the country to rethink their bail systems amid widespread overcrowding and a nationwide push for criminal justice reform.

Commissioners Court is set to vote Tuesday on the proposed deal. Chief U.S. District Judge Lee H. Rosenthal could then consider approving it after a hearing Aug. 21.

See here for some background. I got a press release from the Texas Organizing Project on Thursday about this, so I’ve been eagerly awaiting the news story. I can predict with confidence that Commissioners Court will approve this by a 3-2 margin. Elections have consequences. Kudos to everyone who worked hard to make this happen.

How many prosecutors do we need?

Opinions differ, but it’s a big question in Harris County right now.

Kim Ogg

Hanover is one of many prosecutors Harris County District Attorney Kim Ogg said are overburdened — the reason she has asked Commissioners Court for a budget that would fund 102 additional assistant district attorneys and more than 40 support staff. Ogg said the surge is needed to clear a backlog in cases exacerbated by Harvey, a driver of overcrowding at the Harris County Jail.

Her proposal to expand the prosecutor corps by a third, however, has evolved into a proxy battle over the future of criminal justice reform in Harris County. Ogg finds herself so far unable to persuade Democrats on Commissioners Court as well as reform groups, who have questioned her self-identification as a progressive and said her proposal would lead to more residents in jail.

“Simply adding prosecutors is the strategy that got us here in the first place, with this mentality that the only thing we can spend money on is police and prosecutors,” said Jay Jenkins, project attorney with the Texas Criminal Justice Coalition.

Ogg, a first-term district attorney who unseated a Republican in 2016 with the support of many progressive groups, said these critics fail to grasp the on-the-ground realities of her prosecutors, whose heavy workloads mean they sometimes are the reason cases are delayed and defendants languish in jail.

Ogg pledged to send the first 25 new hires to the felony trial bureau, where she said they can help achieve the reforms progressives seek, such as identifying low-risk defendants who can be sent out of the criminal justice system without a conviction.

“Who else is going to divert offenders who should re-enter society, and prosecute the people who should be incarcerated to protect the public?” she said. “This is a question of how fast do our funders really want to reform our justice system?”

Ogg laid out her argument in an interview Wednesday at the district attorney’s temporary quarters at 500 Jefferson, where a regular shuttle takes prosecutors to the criminal justice complex more than a mile away.

Ogg said since taking office, she is proud to have diverted 38,000 defendants for a variety of low-level offenses, including marijuana possession, misdemeanor theft, first time DUI and mental health-related charges such as trespassing. With an active caseload that jumped from about 15,000 when Harvey hit to 26,523 this week, she said prosecutors are not always able to give victims and defendants the attention they deserve.

Her staff noted Harris County’s 329 prosecutors are less than half the number in Illinois’ Cook County, which is only slightly more populous.

“With adequate staff, we’ll be able to offer pleas that are reasonable earlier,” Ogg said. “We’ll be able to focus on public safety to make sure we don’t let someone go who is really a risk and threat to either his family or his community.”

She sought to mollify the concerns of progressives who fear it could lead to more people in jail, saying, “There’s no data showing that more prosecutors equals more prosecutions.”

Here are the original statements put out by TOP and the TCJC. This subsequent Chron story gives some more detail.

“We would like to stop the clock and take time to consider other options, primarily looking at funding for mental health issues,” organizer Terrance Koontz said.

Koontz said TOP is looking at housing options for nonviolent offenders who may need to reset their lives.

“We’re talking about individuals who are being arrested for minor drug charges or being homeless on the street or having a mental problem, and they definitely shouldn’t be sitting in jail,” Koontz said. “We are not here to attack D.A. Ogg, we just want more time to consider our options.”

[…]

Doug Murphy, president of the Harris County Criminal Lawyers Association, agrees with Ogg’s proposal.

“Having witnessed the daily reality of their lack of manpower what we’re seeing is Harris County was the fastest moving docket in the country, we called it the rocket docket, and it slowed it down to a snail’s pace,” said Murphy. “What we got is bloated dockets because they don’t have the manpower to work these cases up and marshal the evidence.”

Murphy believes more prosecutors would help pick up the pace of getting cases to trial, resolved and even dismissed. “If I weren’t witnessing daily the backlog and the frustration, I would be in total agreement with the other organization,” Murphy said.

Koontz still worries that more prosecutors would ultimately mean more arrests and more people wrongly incarcerated.

“We just want to consider other viable options outside of just hiring the prosecutors,” Koontz said. “Because although it does not seem like putting more people in jail, at the end of the day we feel like more people will end up in jail than not and at the end of the day its black and brown people who are overwhelmingly being incarcerated.”

Honestly, I think everyone is raising valid concerns. The chaos of Harvey has caused a big backlog for the DA’s office, and it doesn’t serve anyone’s interests for cases to drag out because there just isn’t the time or the bandwidth among overworked assistant DAs to get to them. On the other hand, Kim Ogg made promises about how she was going to reform the system, and a big part of that was not prosecuting a lot of low-level crimes or crimes involving people who need mental health treatment. They also worry that while Ogg might not backtrack on her stated priorities, the next DA who inherits her bigger office may not share those priorities. It’s not at all unreasonable to worry that an increase in prosecutors will be counter to Ogg’s stated goals.

So how to resolve this? Grits suggests increasing the Public Defender’s office by an equivalent amount – Commissioner Rodney Ellis has suggested something like this as well, and the PDO is seeking more funding, so that’s on the table. I like that idea, but I also think it may be possible to assuage the concerns about what happens after the backlog is cleared by putting a time limit on the hiring expansion. Is it possible to hire people on one or two year non-renewable contracts, to get the office through the backlog but then have it return to a smaller size afterward? I’m just spitballing here, but if we agree that clearing the backlog is a worthy goal, then we ought to be able to find a way to ensure that doing so doesn’t lead to mission creep. I’m open to other ideas, but I feel like this is something that needs to lead to a compromise, not one side winning and the other side losing. I hope we can get there.

Another reminder that the judicial elections are important

From the Trib:

Across the country, many public defender’s offices are overwhelmed with cases. But the public defenders in Harris County’s juvenile division are in an unusual situation: They say that they aren’t getting assigned enough cases. And advocates say cronyism between private attorneys and powerful judges is to blame.

An analysis of state and county data by The Texas Tribune shows that the county’s three juvenile district courts — led by Republican Judges Glenn Devlin, John Phillips, and Michael Schneider — have been assigning an extraordinary number of cases to a handful of private lawyers.

Meanwhile, the public defender’s office — which handles everything from probation violations to serious felonies and has strict caseload limits — has been receiving fewer assignments from those same courts.

A state-funded study found that a lawyer could reasonably handle at most 230 juvenile cases in a given year — and that’s only for minor cases, like misdemeanors or probation violations. Lawyers who also handle serious felonies could effectively manage a much smaller caseload, the study said.

But several private lawyers are taking on far more than that in Harris County, thanks mostly to appointments from the juvenile courts, according to data from the Texas Indigent Defense Commission. Those courts are also appointing the same lawyers to dozens of family court cases, where the same judges preside over child custody disputes, protective orders and decisions for kids in foster care.

The Tribune found that:

  • Houston attorney Oliver Sprott took on 377 juvenile cases in the previous fiscal year, along with 126 family court cases and some probate cases. That work brought his total haul in taxpayer money for the year to about $520,000, data from the county auditor’s office shows.
  • Harris County paid attorney Bonnie Fitch about $350,000 last year for her work on 300 court-appointed juvenile cases, 71 family court cases and some probate work. Fitch is also a municipal court judge in the small city of Arcola, about 25 miles south of Houston.
  • Attorney Gary Polland earned about $515,000 for his court-appointed work in 227 juvenile cases, three juvenile appellate cases, more than 100 family court cases, and probate court cases. He also does civil and commercial litigation, according to his web site.

Norman Lefstein, a professor at Indiana University’s McKinney School of Law, called such caseloads “ridiculous.” He added: “It’s a joke. It’s just a joke … It tells me immediately that you’re not really investigating the cases, and you’re not doing what you need to do … and young clients especially, they just don’t know any better.” Lefstein is considered a nationwide expert on acceptable caseloads.

That’s the same Gary Polland who’s been very busy soaking up appointment fees from the Family Courts as well. Great work if you can get it. And one thing Gary Polland works very hard at is getting those appointments:

Jay Jenkins, a lawyer with the reform-minded advocacy group the Texas Criminal Justice Coalition, said Harris County judges and lawyers have long been part of a “pay-to-play system” in which lawyers contribute to judge’s campaigns in exchange for appointments, or they help judges politically in other ways.

Sprott has donated $6,250 to Schneider’s re-election efforts since 2014, campaign finance records show, and Fitch gave him $3,500. Sprott has given Devlin $7,500 in the same time frame.

Attorney Mark Castillo has given Schneider and Devlin a combined $7,250 since 2014. He earned nearly $300,000 for his work in 360 juvenile cases in their courts last year, and some additional family court cases. He declined to comment for this story.

Polland has given Schneider and Devlin $1,000 each since 2014. He also edits an influential local political newsletter called the Texas Conservative Review, which recently endorsed Devlin, Schneider and Phillips for re-election.

Polland has also donated $2,500 to a new local political action committee called Citizens for a Quality Judiciary that has mailed out flyers encouraging voters to support local Republican incumbent judges: “It is too risky to hand over our courthouse to unqualified Democratic judicial candidates,” the flyer says. The PAC has also received donations from many other local lawyers who receive a large number of court appointments.

“What we ultimately got was a juvenile system where the lawyers get rich … and everybody wins but the kids,” Jenkins said.

There’s a simple fix for this. Vote those judges out, and the pipeline to these opportunists dries up. If you didn’t vote early, don’t miss out on Tuesday.

County will use public defenders at bail hearings

Good.

Harris County commissioners on Tuesday approved a pilot program to make public defenders available at bail hearings, a step aimed at retooling a criminal justice system that has increasingly drawn criticism for jailing thousands of poor, low-risk offenders.

Within months, county officials anticipate that two public defenders will be present at bail hearings for those accused of misdemeanors and felonies. The vast majority of the roughly 80,000 defendants at these hearings each year does not now have legal representation, and the change means that defendants of limited means charged with a Class B misdemeanor or above will be able to have access to a lawyer when a judge sets bail.

The pilot represents a major change in the way Harris County processes those accused of crimes. The move also makes it the first county in Texas to create such a program, though one official noted that the county lags behind other major metro areas – New York City, Los Angeles and Chicago – in making attorneys available at bail hearings.

“I think it’s a huge step forward that will assure that people’s rights are protected at these hearings,” said Alexander Bunin, Harris County’s chief public defender, whose office developed the pilot program.

The attorneys would provide information on the defendants’ financial situations to hearing officers who set bail, with the goal of releasing those who cannot make bail, pose a low risk to society and have not been convicted of a crime.

[…]

Several top Harris County officials – including County Judge Ed Emmett, Sheriff Ed Gonzalez and District Attorney Kim Ogg – have also said recently that the bail system should be restructured so that it doesn’t differentiate between rich and poor defendants.

“This is a positive step forward on the long road to fixing a broken criminal justice system,” said Precinct 1 Commissioner Rodney Ellis, a former state senator who has sharply criticized the county’s bail bond system.

Emmett, a Republican, also praised the pilot program’s creation Tuesday.

“It’s going in the right direction,” he said. “This is one of those things we needed to do.”

See here for the background. This makes sense on so many levels. It will be cost-controlled, as he public defender’s office budget is approved by Commissioners Court. The defenders assigned to bail hearings will always be there. There will be no concerns about quality or conflict of interest with public defenders, which as we know from long and painful history is not always the case with court-appointed attorneys. It will help prevent defendants from incriminating themselves out of ignorance and lack of representation. And not to put too fine a point on it but it greatly reduces the problem of people getting thrown in jail for no reason other than not being able to pay bail. It’s not a complete solution, in that there are still issues to be resolved in the bail practices lawsuit, but it’s a big positive step. Kudos all around.

County approves defense attorneys for bail hearings

Long overdue.

Harris County commissioners voted unanimously Tuesday to develop a pilot program that would make public defenders present at bail hearings, a move aimed at reducing what officials say is the unnecessary jailing of thousands of defendants because they can’t afford bail or are unfamiliar with the legal process.

The pilot could lead to Harris County becoming the first county in Texas to make legal representation available at all hearings where bail is set. The majority of individuals are not represented by attorneys at the hearings.

Advocates for criminal justice reform heralded the county’s move, noting that research shows those jailed and unable to bail out are more likely to plead guilty to crimes they did not commit.

They also pointed to cases like that of Sandra Bland, who failed to make bail after a controversial arrest and committed suicide three days later in the Waller County jail, as examples of tragedies that could be prevented.

Roughly 80 percent of the Harris County jail’s population – some 7,000 to 8,000 inmates – are pre-trial detainees.

“In a jurisdiction that large, this is really a sea change about the way they are going to do business,” said Jim Bethke, executive director of the Texas Indigent Defense Commission.

[…]

The county public defender’s office is working with the budget office to develop the pilot program. It could make public defenders present at some or all bail hearings. Currently, Bethke said, only Bexar County has a similar program – and that is tailored to offenders with mental-health conditions.

The public defender’s office will present a pilot program to county commissioners on March 14, and it would go into effect, if approved, on July 1. The county is also implementing a new risk assessment tool for hearing officers to better determine whether people can be released prior to trial.

I consider this another positive outcome of the ongoing bail practices lawsuit. The time was finally right for the issue to gain salience and require some kind of solution, even before any intervention from the court. I want to see what the effect of this is on the jail population, because if it doesn’t have a noticeable effect then something is wrong. Think Progress, which offers an overview of the case, has more.

Our bail policies are unjust, costly, and stupid

Any questions about how I really feel?

go_to_jail

“The numbers clearly tell the story: More than three-fourths of the people in Harris County Jail haven’t been convicted of crime, and the majority of them are sitting in jail simply because they can’t afford to get out – not because they’re a threat to public safety,” said state Sen. Rodney Ellis, D-Houston. “This means the indigent are more likely to be kept in jail pretrial, lose their jobs, affect their family lives, and receive harsher sentences solely because of their income status.”

Harris County locks up more people pretrial than most other large counties utilizing a standardized schedule that sets bond amounts for specific crimes. Magistrates makes bond decisions based almost entirely on charges filed and prior convictions in hearings via video linkup at which few questions are asked and defendants have no attorneys – a process the county’s public defender has described as potentially illegal in an upcoming law journal article.

The magistrate’s bond decisions are almost never altered by the county’s elected district court judges, who reduced bonds in less than 1 percent of cases, court bond data from 2014-15 shows.

Judges can, if they choose, grant personal bonds to defendants in which bail fees are waived in exchange for a promise to appear. But in 2014, they granted personal bonds to about 1 percent of felony offenders and only 9 percent of misdemeanor offenders, county statistics show.

Those rates are below those in other urban Texas counties, including Bexar and Travis, according to a related 2015 report. Several district court judges have told magistrates never to issue personal bonds for anyone assigned to their courts, while others specify such bonds be granted only to students, a former judge and other county officials told the Chronicle.

Once jailed, no mechanism exists to automatically alert elected judges even when an inmate falls severely ill or already has served more time pretrial than the punishment for the alleged crime, Harris County judges said.

In August 2009, after the U.S. Department of Justice found civil rights abuses at the Harris County Jail, a consulting firm hired by the county urged judges to increase the use of personal bonds to reduce crowding in the jail complex, then bursting with more than 11,000 inmates. More than six years later, jail population has decreased, but the proportion of inmates awaiting trial has grown, from 54 percent in August 2009 to 76 percent in November 2015.

Some judges defended their tough bond schedule, explaining that many defendants are repeat offenders or require high bail to guarantee court appearances and protect the public. But in a $2 million proposal the county is preparing to submit to the Chicago-based MacArthur Foundation, judges and attorneys alike have called for reforms. In interviews, many agreed the pretrial system is broken and the jail is regularly clogged with too many mentally ill and low-risk offenders arrested for crimes like smoking pot and trespassing.

Ultimately, the system most punishes the poorest and sickest defendants, defense attorneys and some legislators say.

Fifty-five inmates died in the jail while awaiting adjudication since 2009. Eight were too ill to appear at initial bail hearings.

Emphasis mine. This is outrageous and infuriating. People who have not been convicted of a crime are in jail without any consideration of their risk to the community, their health, or the effect their incarceration may have on their families. Some of them wind up spending more time in jail waiting for their case to be resolved than they ever would have if they had been convicted of the crime for which they were arrested. Many of them wind up pleading guilty to a crime they may never have been convicted of just to get out of jail. Does any of this sound like justice? Does any of it sound like something you would tolerate if it happened to you or someone you knew? Does any of it sound like a viable and cost-effective way to promote public safety? This isn’t something we have to do. It’s not something we are being forced to do by state or federal mandate. It’s something we are choosing to do, and by “we” I mean the judges who set these dumb bail amounts and the people who vote for them. We chose this, and we can choose differently. It’s up to us.

It’s not just bail reform that we need

The latest from Emily dePrang at the Observer:

go_to_jail

It’s a Monday morning, a little past 9:00. Half an hour ago, this hallway on the eighth floor of the Harris County Criminal Justice Center in downtown Houston was swarmed with people. Now all the other courtrooms have opened, swallowed their subjects, and closed up again. Only the hall folk of Criminal Court at Law No. 2 remain, resigned citizens waiting at the gates of the Honorable Bill Harmon’s grim little kingdom.

Harmon’s court handles misdemeanors, though like all the cases heard in this building, the charges being leveled are serious enough to incur incarceration. A single day in jail can cost someone a job or create a child care crisis, but the consequences also activate powerful legal rights. The Sixth Amendment, as interpreted by several U.S. Supreme Court decisions in the mid-20th century, guarantees a right to counsel for all defendants charged with crimes punishable by confinement. Those who can’t afford an attorney shall have one appointed, the Court ruled in the landmark 1963 case Gideon v. Wainwright. “In our adversary system of criminal justice,” wrote Justice Hugo Black for the majority, “any person hauled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. This seems to us to be an obvious truth.”

Most Texans hauled into court are indeed poor. Last year, the state appointed counsel in 71 percent of felony cases and 41 percent of misdemeanor cases, according to the Texas Indigent Defense Commission. More than 415,000 defendants qualified for indigent defense services in 2014, and nearly 65,000 of them passed through the Harris County Criminal Justice Center.

But an unknown number of defendants qualified for help and were denied it. Likewise, an unknown proportion of those who received appointed counsel were represented by attorneys too busy to do much more than communicate a prosecutor’s plea deal. In either case, defendants are deprived of the Constitutional guarantee to what the U.S. Supreme Court describes as a “vigorous defense.”

These injustices are hard to quantify for the same reason they’re easy to commit: The state exercises almost no oversight of indigent defense, and most counties still administer their programs through an antiquated process rife with conflicts of interests. Most counties, including Harris, pass the responsibility down to individual courtrooms. The judicial appointment system lets judges decide which defendants will receive appointed lawyers, which lawyers will get indigent appointments, and how many cases these lawyers will be assigned. There are plenty of little administrative rules, of course, such as attorney pay rates and minimum qualification. And, as required by state law, Harris County has an official indigent defense plan that codifies exactly how judges are supposed to evaluate whether a person is poor enough to be entitled to appointed counsel. It instructs judges to consider a defendant’s debts, expenses and dependents when determining indigency.

But that’s all on paper. Here in the hallway, inside the courtroom, and even in absentia, Judge Harmon makes the rules. And Harmon’s rules are among the harshest in Harris County, a place not known for its equitable criminal justice system. More than half the defendants now waiting for Harmon have come to court without an attorney, and many believe they’ll be appointed one. None of them will.

[…]

“The way it’ll work is, the [appointed] lawyer will talk to the [district attorney], the DA will tell them, ‘This is what the offer is,’ and they’ll go back and convey this offer to the defendant,” [defense attorney Robert] Fickman says. “It almost always boils to this: that they’re offering you X, which means if you plead guilty you’ll get out of jail in so many days. Or we can reset [delay] your case, if you want to fight it, and you’ll end up spending more days in jail. It’s a hostage choice — it’s not a choice at all. These are poor people who need to get back out and try to feed their families. So what do they do? They plead guilty. They’re not pleading because they’re necessarily guilty but because they’re getting their liberty. The horror, the horrible irony of this system, is that people are pleading guilty just to get their liberty. And it goes on every fucking day.”

Read the whole thing, and ask yourself ho you would feel if this were happening to you or to someone you knew. Judge Harmon is one of the lucky duckies who gets to run for re-election in non-Presidential years, meaning that as long as current turnout patterns remain the same, he’s set. Pretty sweet deal if you can get it.

Moving the focus back to un-crowding the jails

This is a positive development.

Devon Anderson

Newly appointed Harris County District Attorney Devon Anderson on Wednesday pledged to curb the increasing number of low-level felons being sentenced to serve misdemeanor time in the county jail rather than going to prison, known as a “12.44a” sentence, saying she will encourage her prosecutors to push rehabilitation.

There has been a more than 30 percent increase this year in the number of state jail felons who receive so-called 12.44a sentences, according to information kept by the Criminal Justice Coordinating Council, which Harris County created in 2009 to improve the justice system and reduce jail overcrowding.

The increase has been identified by the council as one of several reasons that the population of the Harris County Jail – the state’s largest lock-up – has escalated this year to the point of being close to capacity again.

Those types of convictions include so-called “trace cases,” where people are arrested for possessing less than 1/100th of a gram of crack cocaine.

Anderson’s husband, the late District Attorney Mike Anderson, who took office in January and died of cancer last month, sparked speculation that the jail population would increase when he decided to prosecute trace cases as felonies. His predecessor, Patricia Lykos, treated the cases as misdemeanors, saying it was difficult to accurately test drug residue and took officers off the streets for too long. She also claimed it helped reduce the jail population.

Devon Anderson on Wednesday, attending her first coordinating council meeting since being appointed as her husband’s replacement about two weeks ago, said she was “not alarmed” by the number of state jail felony filings this year, which have not increased substantially.

“What I was alarmed about was the 12.44a disposals,” she said. “Creating a class of felons, first offenders, about 800 people who have never been in trouble… now have felony convictions because of the 12.44a punishment. That is what we’re going to address. “

She continued: “I’m a former drug court judge and I’m very interested in rehabilitation and that is what I’m going to encourage my prosecutors to work on, to identify people whether they’re first offenders or if they have prior drug felonies and no violent priors, to try to get them to enter treatment. As a former defense attorney, I know that there are some people who just (say), ‘I don’t want to be on paper, I don’t want treatment, I want to go right back on the streets.’ Well, the problem is they come right back to the jail. So we need to work with defense lawyers and judges. We all need to get unified on this and try to get treatment and to try to stop the revolving door.”

Anderson had previously told the Chronicle she would continue her husband’s trace case policy, but would look at whether they are “giving a disproportionate number of state jail felons county time.”

See here and here for some background. Anderson’s position seems a bit muddled to me, but maybe that’s just because I don’t know what “12.44a” means. Is there some other class of felony that isn’t a trace case but is a “12.44a” that’s been trending up and causing an increase in the local inmate population? You lawyers out there, please chime in on this. Be that as it may, the fact that Anderson is acknowledging the problem and her office’s role in it, that’s a positive sign. Assuming she’s not putting up a smokescreen, then there’s a path forward from here.

On a tangential note because I didn’t get around to blogging it earlier, there was a story in the Chron about what the new public defender’s office has been pu to.

Harris County’s recently created public defender system is seeing positive results, including an uptick in dismissed cases for Houston’s mentally ill, according to a report released Tuesday by the Council of State Governments Justice Center.

“It says we provide a lot of value to the system,” Alex Bunin, the county’s chief public defender, said of the results.

Those results include dismissal rates that are five times higher for mentally ill misdemeanor suspects than similar defendants with appointed attorneys.

The office, which began in 2011 with a state grant funding the first four years, handles about 6 percent of the county’s indigent trial-level cases. The rest of the indigent cases are handled by private attorneys appointed by one of the county’s 40 criminal court judges.

In general, the report found that the public defender’s office does more investigation, which leads to better results in court, advocates for the defense bar in community issues and offers free training, mentoring and advice that was not available before.

Those courtroom results include a greater proportion of dismissals, deferred sentences and acquittals. The report also pointed out that the office sees a smaller proportion of “guilty” verdicts than appointed lawyers. Overall, the public defender office secured acquittals at three times the rate of appointed or hired attorneys, according to the report.

Pretty good so far. There are some complaints in the story from Jared Woodfill about the cost of the PDO, but Woodfill benefited greatly from the old system of judicial appointments of defense counsel for indigent defendants, so take his comments with a grain of salt. Grits has more.

Harris County and court costs

Grits has some interesting local news.

An appellate court has ruled that all court fees in Harris County criminal cases, going back for some indeterminate amount of time, are invalid if the county did not produce a written “bill of cost” documenting their source, as the county apparently, routinely failed to do. Moreover, the issue need not have been preserved at trial for court costs to be appealed. The implications are potentially profound.

Former Office of Court Administration chief Carl Reynolds, who retired earlier this year and is one of the few Texas criminal justice experts who’s willing and able to enthusiastically discuss court costs with you, emailed to notify Grits of an opinion last week out of Texas’ 14th Court of Appeals (uploaded here; see all the filings in the case), which ruled, as Carl put it, that “Harris County does not comply with [Texas Code of Criminal Procedure] 103.001 by failing to create a bill of costs in each case. If a judgment lists the court costs, but there is no evidence in the record to support those costs, then no costs are owed. Often these costs total many hundreds of dollars and are garnished by TDCJ from commissary funds, or they become owed as conditions of probation. The issue is therefore very important. It need not even be raised in the trial court to preserve it for appeal.” (emphasis added)

What does it mean? Translated from court-speak, if the government can’t justify the court costs it assigns in writing in a formal bill of costs – as apparently Harris County is not set up to do and has not historically done – then the defendant does not owe any court costs! That’s really pretty huge.

There’s an update here, and you should read both posts. This sounds like there could be a significant financial impact on counties all over Texas, not just Harris. It’s their own fault for playing so loose with the law, of course, it’s just that they never got called on it before now. It’ll be interesting to see how this mess gets resolved.

Complaining about the public defender office

At least one judge doesn’t like the new Harris County Public Defenders office.

“In short there is no evidence that a public defender’s office can be of any benefit to the Harris County Juvenile Justice system,” state District Judge John Phillips said last month in an open letter.

Chief among Phillips’ complaints is that the public defender system in the juvenile courts costs two and half times more than the system of appointments he uses, a number denied by those connected to the office.

Phillips said the average cost per case is $649, compared to $264 for assigned lawyers.

Alex Bunin, who oversees the public defender’s office, said Phillips’ numbers are wrong. He said the judge cited a preliminary feasibility study with estimates that were not accurate.

“Those numbers are not meaningful,” he said.

Bunin said the costs are closer to actual public defender averages across the state. Established public defender offices in Texas average $406 per case against $540 for appointed attorneys.

“The point is that the numbers are fairly comparable,” Bunin said. “There’s no support for ‘two and half times the cost.’ ”

Bunin said a comprehensive review has been commissioned and is expected in about six months.

“We’ll know things about the quality of our work, as well as the cost effectiveness of it,” Bunin said. “When we get ready for midyear budget, we’ll have something on paper.”

I found Judge Phillips’ letter here. The story references an open letter in response to Judge Phillips from Lawrence Finder and George “Mac” Secrest, but I was not able to locate it. (Dear Houston Chronicle: Would it kill you to include links to stuff like this that you reference in the online version of your stories?) Not being familiar with the system, Judge Phillips’ letter and the documents he included as evidence did not make much sense to me. I do agree with Bunin that the costs cited in an initial feasibility study don’t really mean much any more, and that the actual costs that will be reflected in their midyear budget will tell a much more accurate story. Judge Phillips also cites a number of reforms that the juvenile courts have implemented to save money, to which I say Great! Good job! But I don’t see why those reforms and the Public Defender office should be mutually exclusive, and even if they were that doesn’t address the need for the Public Defender office in other courts. And finally, not to be crass, but I’d like to know what if any connections there are between Judge Phillips and Gary Polland. Judge Phillips complained that supporters of the Public Defender office have politicized the issue, but that is quite clearly a two-way street. Let’s see what their budget request looks like and we’ll go from there.

A few words with Alex Bunin

The Sunday Chron had a brief conversation with the head of Harris County’s new public defender office, Alex Bunin.

Q: You don’t know if the office is going to save taxpayer dollars for attorneys per case, but you say it will be a better value for the money spent?

A: Absolutely. If you’re asking me to give you a dollar figure that says it’s going to save this amount of money, I can’t tell you that. But we think we’re going to do it in a more efficient manner and provide better representation.

Q: Why is that?

A: You’re going to have lawyers who have access to the assistance of other lawyers and investigators on a round-the-clock basis. You’re just going to have a greater body of knowledge and assistance.

Q: But the hope is that it will save the county money, especially in jail beds?

A: Right. You can’t just compare what you’re paying assigned lawyers to what you’re paying us. There are so many interrelations in the system that are outside of what the courts pay lawyers. There’s the jail cost, there’s the social services, there are a lot of things that are affected.

Good stuff. Mr. Bunin is high on the list of people I’m looking forward to interviewing in the future. I wish him and his office good luck in completing their mission.

Harris County appoints its public defender

Meet Alex Bunin, who was unanimously appointed by Commissioners Court to be the chief of Harris County’s first ever public defender office.

Bunin, 51, set up federal public defender offices in southern Alabama, Vermont and northern New York. He currently runs the Albany and Syracuse offices in New York and teaches at Albany Law School.

“This is really a major project. It’s much bigger than the offices that I’ve run before, a real diversity of issues,” Bunin said. “I think there’s just a lot more opportunity to help people on the ground level in a county office.”

Bunin starts his new job Dec. 6 with a temporary office, no employees and no office equipment. By February, his office is expected to start representing mentally ill indigent defendants facing misdemeanor charges and appeals cases for the indigent.

This is still a pilot project, meaning that if it doesn’t go well – read that as “doesn’t prove to be more cost effective than the current system of judge-appointed public defenders” – Commissioners Court can kill it. The reaction to Bunin’s hiring is positive, with Mark Bennett expressing hope and State Sen. Rodney Ellis releasing a statement (see below) praising the selection. I look forward to seeing what Mr. Bunin can do with this office, and hope for great things.

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