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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.

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.

Crusading against court fees

This is important work.

Jani Maselli Wood

Houston attorney Jani Maselli Wood scanned the itemized list of “court costs” that people pay when they get in trouble with Texas law to see how much her indigent client owed even while sitting in a prison cell.

Among other things her client was obligated to pay was a $250 DNA record fee, money that was divided to fund the state highway system and an account that issues criminal justice grants.

Maselli didn’t think the fee was a legitimate court cost, and relying in part on a 70-year-old case, Maselli convinced Houston’s 1st Court of Appeals that it was a tax collected by the judiciary. Attorneys for the state appealed that ruling and she is now scheduled to argue the issue before the highest court in Texas.

The defense attorney’s attempts to hold the state accountable for the money collected as “court costs” may sound quixotic, but the courts are taking her challenges seriously.

It could change the way Texas collects money and pays the bills.

“I’m trying to make sure the money goes to where you think it goes,” Maselli said. “If you look behind the court costs, statutorily, where the money goes, it rarely goes back to the courts.”

The courts have defined “court costs” as a recoupment of the cost of criminal prosecution. Maselli is arguing against fees that sound like they are connected to criminal cases, but which she says are not.

One of the fees charged to defendants after trial is a 14-item bundle called the Consolidated Court Cost.

Maselli has followed the money for each of the fees in that bundle to find they support things like the state highway fund, a criminal justice institute at Sam Houston State University or end up in biggest pot of all, the state’s general revenue fund.

“Only a small amount, like 12 percent, goes to the courts,” Maselli said. “It’s just not connected.”

The Observer wrote about Ms. Maselli last month. The Chron story doesn’t mention that she’s employed by the Harris County Public Defender’s office, which enables her to do this kind of work since she’s not tied to billable hours. I suspect many people, including myself, assumed that the courts were mostly funded by taxes, not “user fees”. It’s not like the “users” chose to be there, after all. If that’s the route we’re going to go, the least we can do is spell it all out. Kudos to Ms. Maselli for forcing that kind of reckoning on us.

Endorsement watch: Juvenile courts

I had thought we were at the end of the line for endorsements, but not quite yet.

Natalia Cokinos Oakes

314th Juvenile District Court: Natalia Oakes

Democratic candidate Natalia Oakes has dedicated her career to helping children, and voters should put that passion to use on the bench. Oakes, a graduate of the Thurgood Marshall School of Law at Texas Southern University, has practiced in Harris County family courts for 14 years. Before becoming a lawyer, Oakes worked as a teacher, giving her a solid background for communicating with children and their parents in distress. She told the Chronicle editorial board that she is running for judge to “have the power to introduce new and innovative programs” to the juvenile courts. She would like to see more emphasis on tracking offenders to determine the effectiveness of different rehabilitation programs. Her goals are laudable and her background promising, but her opponent is the tipping point.

Republican incumbent Judge John F. Phillips has served in the 314th since 2002. Despite recognized capabilities, Phillips has earned a reputation for cronyism and heavy handedness. He has been noted for assigning former law partners and campaign contributors as court-appointed attorneys. Phillips also has been criticized for abusing his discretion in separating an abandoned 12-year-old rape victim from her child. We wanted to hear Phillips’ side, but he refused to meet with the editorial board.

Despite her lack of judicial experience, we think the 314th needs a change and that Natalia Oakes will be a capable new judge.

I should note that the Chron endorsed Cokinos Oakes in 2010 for the then-open 313th Juvenile Court. I don’t think she got any less experienced since then. Be that as it may, the Chronicle didn’t mention that the criticism they cite of the incumbent judge in this race comes courtesy of their own Lisa Falkenberg. Falkenberg gives us a reminder of Judge Phillips’ rap sheet.

In recent days, readers have contacted me, some of them apparently on their way to vote early, asking variations of the same question: “What was the name of that judge who took away Angela’s baby?”

By now, all you readers should know his name by heart. But as a frequent sufferer of name-recall syndrome myself, I don’t mind answering.

He is state district Judge John Phillips, a Republican elected to the 314th district court in 2002. After his Republican primary opponent was excluded from the ballot, apparently on a technicality, Phillips was left to face Democrat Natalia Oakes, a juvenile law attorney and former teacher.

In a recent Houston Bar Association poll, Oakes bested Phillips 400-348 – not a huge lead for Oakes but a significant shortcoming for Phillips, a Republican on the bench for more than a decade who holds an administrative position in juvenile courts.

Recently, I asked a reader who votes overwhelmingly Republican and often disagrees with my stances on social issues what kept her from voting straight ticket.

“Well, because there’s always a few,” she said with a laugh. “There’s just always a few.”

She listed Phillips among the few.

[…]

In 2008, I wrote about how the judge ordered two children, aged 1 and 2, from the home of their LaPorte grandparents, who had raised them since infancy, and placed with strangers in a foster home. In a hearing terminating the rights of the parents over drug abuse, Phillips refused to let the grandparents intervene, apparently because he deemed the couple, both in their 50s, too old.

Phillips said the boys would need guidance into their 20s and “the stark reality is there’s a very good chance” their grandparents “will be dead at that time.'”

More recently, a series of columns on 12-year-old rape victim “Angela” gained wide attention from readers. Angela, abandoned by both parents after she became pregnant, was placed in CPS custody. The girl, who had every reason to resent the life inside her, embraced pregnancy, decided on breastfeeding, and even bonded with a Rosharon relative of her foster mother who agreed to provide a loving, stable home for her and her baby.

But when Phillips got wind the Rosharon family was caring for the newborn, he demanded that child protective officials transfer the baby to a foster home in Montgomery County where Angela wouldn’t have access to her.

Phillips told Angela bluntly in court: “You and your baby are not going to be together.”

His reasons had nothing to do with the law. State law only allows children to be taken from parents if there’s evidence of abuse or neglect – neither of which was ever alleged against the young mother.

Phillips was ready to throw Angela away as damaged goods, and he might well have succeeded, if not for attorney Thuy Le, who fought to represent the girl and eventually prevailed in getting a new judge to reunite Angela and her baby.

He also likes to post juvenile crap on Facebook, and he didn’t like the Public Defenders Office, but there’s enough to question his fitness to be a judge without that. Cokinos Oakes did not send me Q&A responses this year but she did so in 2010, and you can see that here. I did get responses from Tracy Good, the Democrat running for the 313th Juvenile Court, and those are here. We’ll see if there is any Falkenberg Effect in this race.

Greg Enos turns his spotlight to Gary Polland

This ought to be good.

Gary Polland

There can be no doubt: Gary Polland is a smart, successful lawyer who knows how to make a lot of money from the practice of law. Polland is politically powerful and able to influence and profit from every Republican primary election. Polland should be your hero and role model if high income and political influence are your goals in life.

I asked a bunch of attorneys with experience in CPS cases how much they guessed Gary Polland had been paid in four and a half years for court appointments. Their guesses ranged from $300,000 – $700,000. They were totally floored to hear that Polland had been paid $1.9 million by Harris County since January 1, 2010 for court appointments. Just to be very clear, that is taxpayer dollars being paid to this one man for government court appointments only. It does not count the many cases where Polland was appointed by judges but paid by private parties.

My investigation into this incredible situation has just begun, but here is what I know:

Polland has enormous political influence in Harris County Republican primaries, especially with judges, because he is one of the “Big Three” endorsers. It is virtually impossible to win a Harris County GOP judicial primary, even for an incumbent, without at least two of three endorsements from Hotze, Lowry or Polland. Unlike Hotze or Lowry, Polland is an attorney. Click here to see who Polland endorsed in the 2014 GOP primaries.

[…]

Attorneys appointed on CPS cases are paid a lower hourly rate than lawyers in private cases are paid. For example, I charge my clients $350 per hour for my work in divorce and child custody cases. Harris County pays CPS attorneys hourly rates which range from $75 to $125 per hour, depending on the specific service provided. Pay for trials is $300 to $500 per day. Young attorneys, who need experience and who want any paying case they can get, often seek CPS appointments. These young attorneys work hard to impress the judges and, because they are new, do not take CPS clients for granted. Massive amounts of appointments for just a few older, politically connected attorneys, take away from younger attorneys this opportunity to gain experience, help children and make a little money.

Most importantly, representation of abused children in CPS cases is not supposed to be an “assembly line” business to enrich the politically connected. CPS work takes time, dedication and focus on a few children at a time.

The $1.9 million paid to Polland by Harris County does not include what Polland has been paid in private cases by the parties where he was appointed a mediator or amicus attorney by a judge. In non-CPS child custody cases, the attorney appointed to represent a child is usually called an “amicus attorney.”

[…]

The $1.9 million Polland has been paid by Harris County since January 1, 2010 works out to $8,119.66 per week. Divided by $125 per hour (the minimum and usual non-trial hourly rate for CPS cases), that is 65 hours of billed legal work per week, every week, 52 weeks per year with no vacations or holidays. That would leave Mr. Polland very little time for his private appointments, mediations and civil cases where a client actually hires him. In contrast, for my clients, I work 7 – 10 hours per day but I usually bill a total of 4 – 6 hours per day. I clearly could learn a lot from Mr. Polland on how to efficiently bill for my time.

Every two years, Polland makes a lot of money from his business, Conservative Media Properties, LLC, doing business as the Texas Conservative Review, which endorses candidates in Republican primaries. Candidates give Polland money to pay for his mailers and local judicial candidates almost have to pay Polland because voters simply cannot know which of the dozens of judicial candidates are qualified. In election season, judges come to the attorneys asking for contributions, except for Polland. Unlike the rest of us, Polland is able to go to the judges and ask them for money. He is in a truly unique and powerful position.

My next issue will attempt to analyze which judges are appointing Polland and which paid his for-profit business for “advertisements” in his endorsement newspaper. For the next few months, a special feature in this newsletter will list each new appointment in family courts Polland gets and which judge appointed him. The judges who are appointing Polland are going to feel the spotlight even if they are unwilling to publicly explain why they choose him out of the hundreds of lawyers who seek appointments.

I can’t wait. Polland gets appointed to civil and criminal cases as well as to family court cases, and of course he is heavily involved in Republican primary politics, especially via his influential endorsement of judges. This year’s election is therefore particularly consequential for him, since a strong Democratic year would necessarily mean tossing out a bunch of judges that have been appointing him in favor of judges that would not have any electoral connection to him.

Enos’ calculation of Polland’s total bill to Harris County is about $300K higher than the figure he cites on his sidebar, where he lists the top 22 recipients of appointment earnings from Harris County since 2010. It’s still a lot of money either way. Keep that in mind the next time you hear Gary Polland rail against the Harris County Public Defender’s office. Its existence cuts into his bottom line.

Enos has invited Polland to reply to his reporting. I kind of doubt Polland will take him up on it, but I hope he does. It would be enlightening, if nothing else.

Judge Pratt update

The most embattled Family Court judge in Harris County is still on the ballot, in case you were wondering.

Judge Denise Pratt

Embattled state District Court Judge Denise Pratt, accused of falsifying court records to cover up tardy rulings, intends to remain on the ballot to face the voters, her lawyer says.

In late October, the Harris County District Attorney’s Office filed a criminal complaint against Pratt, alleging she falsified court records in an effort to cover up tardy rulings. A Webster family lawyer filed a similar complaint with the State Commission on Judicial Conduct.

County Republicans have said they are awaiting the outcome of a grand jury investigation before taking any action against Pratt, such as asking her to step aside.

But it may be a moot point. Today is the filing deadline for candidates, and candidates have only until Tuesday to withdraw from the ballot.

Pratt denies any wrongdoing and has no plans to withdraw from the ballot, her lawyer Terry Yates said Friday.

“She did nothing improper or illegal,” he said.

Pratt’s clerk resigned after allegations surfaced that the judge altered and backdated court records to make it appear that she issued rulings and filed documents sooner than she actually did.

Yates confirmed that the criminal complaint against Pratt is under review by a grand jury and said his client is “cooperating fully.”

If the grand jury does not come to a conclusion in time for the advisory board to act, Woodfill said voters will have their say. As of Friday, Pratt had garnered one Republican primary opponent, Donna Detamore.

That story was from Monday, so it’s up to the voters now. Thanks to a couple of late filings, they now have even more choices.

Embattled state District Court Judge Denise Pratt had garnered four challengers in next year’s GOP primary election by the filing deadline on Monday.

A complaint against the Republican freshman judge that led to the resignation of her lead clerk and an investigation by the Harris County District Attorney’s office is being reviewed by a grand jury. The complaint was filed with the DA’s office and the state Commission on Judicial Conduct by Webster family attorney Greg Enos.

As of Friday, only lawyer Donna Detamore had filed to run against Pratt. By 6 p.m. on Monday, though, lawyers Alicia Franklin, Anthony Magdaleno and Philip Placek had also joined the 311th District Court race.

Republican politico and lawyer Gary Polland, whose endorsements are considered key to GOP primary wins, said last week he would endorse Franklin if she filed. He endorsed Pratt during her first run in 2010, but said he would not do so again because he considers her a “political liability.”

Pratt, however, says she will not withdraw from the ballot and flatly denies the allegations being made against her.

“I’m sure you have heard the rumors that are being spread by the Democrats and the liberal media,” Pratt wrote in an e-mail sent Monday to GOP precinct chairs. “I wanted to take this time to let you know that the allegations brought against me by the Democratic faction are false. I am a conservative Judge and because of my principles I am being attacked. I have already filed to run for re-election as judge of the 311th Family District Court, and will not let the underhanded political tactics by the Democrats keep me from doing my job.”

And I’m sure the Commies are out to get you, too, Judge Pratt. At least until the District Attorney decides whether or not to charge you with official misconduct. For the record, Sherri Cothrun is the Democrat running for the 311th Family District Court in November. Cothrun was a candidate for the 246th Family District Court in 2010, and she is law partner to Rita Lucido, the Democratic candidate for SD17. I’d advise Judge Pratt to be more concerned about facing a quality opponent like Sherri Cothrun than anything the media might report about her.

If Judge Pratt wins the nomination and then subsequently withdraws for whatever the reason, she could not be replaced and the Democrat would be unopposed; this is the one thing for which we can be thankful to Tom DeLay, since he firmly established that fact in 2006. We’ll see what the grand jury has to say, as I presume their verdict will have a large effect on that.

See here, here, and here for the background. For what it’s worth, I recently asked a friend of mine who practices family law what he thought about Judge Pratt. My friend confirmed all of the things we have heard so far about her courtroom demeanor and management. It’s probably fair to say she’s not well liked by the lawyers that appear before her.

Speaking of the lawyers, the story adds this little tidbit:

The political situation would appear to put local Republican Party leaders, including Woodfill, in an awkward position.

Since last year, Pratt has appointed Woodfill to cases for which he has made nearly $10,000. He is not the only lawyer and Republican Party leader Pratt has appointed to cases in her court since taking the bench in 2011.

According to information obtained under the Texas Public Information Act, former party chairman Gary Polland, whose endorsements are considered key to judicial GOP primary wins, has made more than $79,000 in legal fees from appointments by Pratt. Lawyer George Clevenger, chairman of the party’s finance committee, has made more than $114,000.

Judges giving appointments to lawyers with whom they have political or other ties long has been the subject of controversy.

You could say that. It’s why Gary Polland is such a fierce opponent of the Harris County Public Defender’s office as well – he makes a ton of money from appointments, so having a public defender cuts into his bottom line. Just something to keep in mind.

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 indigent defense costs trending down

Via Grits, here’s an email from the Texas Criminal Justice Coalition that shows some good news for Harris County.

New numbers from the Commission show that while total indigent defense expenses in Harris County increased by $4.7 million between 2007 and 2011, local indigent defense expenses were lower in 2011 than in 2007, and down more than $4 million from their 2010 peak.

In part, this may be due to the County’s increased use of alternative dispositions, greater care in case filings, and reliance on the new Public Defender’s Office.

To read more about the Public Defender’s Office, including staffing and support resources, workload and performance standards, and benefits in representation, click here.

That link is an email from Brandon Dudley to Jim Bethke of the Texas Indigent Defense Commission that goes into detail and shows the numbers. Grits summarizes it, and you should read both. While Dudley notes that his memo “should not be used as a substitute for the significant analysis being performed by the Justice Center, Council of State Governments” – a thorough review is expected later this year – it’s clear there’s good news to report. Check it out and see for yourself.

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.

(more…)

Public defender’s office approved

Excellent!

A state panel has awarded Harris County a $4.1 million grant to launch a public defender office, which is expected to start taking cases early next year.

The county plans to roll out the office in phases over the next two years to handle appeals, juvenile cases, adult felony trials and mental health cases. The new office will be a pilot project. It will not supplant the existing system in which judges appoint defense lawyers for the indigent. The county will use a hybrid of both approaches.

“This is a major milestone in the history of the criminal justice system in Harris County,” Precinct 2 Commissioner Sylvia Garcia said. A public defender office offers a greater chance at justice for criminal defendants, she said, as well as taxpayer savings in avoided jail costs. Defendants are likely to spend less time in jail awaiting trial and more likely to receive alternatives to jail sentences — such as drug treatment – with the help of specialized defense attorneys, Garcia said. That could reduce a jail population so large that the county houses 1,500 inmates in other counties and in Louisiana.

[…]

The county plans to hire a chief public defender by Nov. 1. The chief will hire a team of attorneys expected to begin working cases on Feb. 1.

That’s just great news. It was a hard slog to get here, but get here we did. Kudos to all involved. Here’s a statement from State Sen. Rodney Ellis about this:

“I commend the Task Force on Indigent Defense for approving Harris County’s $4.1 million grant request to establish a public defender office. If implemented and operated correctly, I believe the office will improve representation of indigent defendants, reduce the county’s jail population, and reduce recidivism, as public defender offices have been shown to do in other parts of the state.

“I also commend the hard work of the county officials, judges, and county staff who revised the public defender plan in response to concerns expressed by Houston-area clergy and national advocacy organizations seeking to improve indigent defense. In particular, I would like to thank Commissioners El Franco Lee and Sylvia Garcia, co-chairs of the Harris County Criminal Justice Coordinating Council’s Public Defender’s Office Workgroup; their colleagues on the Commissioners Court; District Court Judge Mike Anderson; and Caprice Cosper, Director of Harris County’s Office of Criminal Justice Coordination, for their hard work and dedication to improving indigent defense in Harris County.”

Ana Yanez Correa of the Texas Criminal Justice Coalition, who’s doing some guest-blogging at Grits for Breakfast while Scott is off the grid, joins in the celebration, and notes a couple of other good things that happened today for criminal justice, one of which was the Task Force on Indigent Defense voting to forward the final recommendations made by the Timothy Cole Advisory Panel. Here are the recommendations, plus statements from Sen. Ellis and State Rep. Ruth Jones McClendon for more.

County redoes its public defender proposal

Back in April, Harris County Commissioners Court voted to start a pilot public defenders office, contingent on getting a $4.4 million grant from the Texas Task Force on Indigent Defense to help cover costs. That initial effort was subsequently criticized for being inadequate, and the TFID gave the county 30 days to improve its grant application. That has been done, and Commissioners Court is trying again.

The county’s previous version of the application received criticism from academics, local ministers, defense advocacy groups and the local state senator who authored the law authorizing the creation of public defender offices in Texas counties. Among the criticisms were that not enough judges planned to participate, that the office would not serve high-level felony defendants and that the office was subject to control by the judiciary and Commissioners Court.

Originally, 11 of 22 district court judges had volunteered to use a public defender on felony trial cases and only three agreed to the new office’s use on appellate cases. Now, 20 judges have bought in on felony trials and 18 on appeals.

[…]

To protect the public defender from meddling by Commissioners Court or the judiciary, an independent oversight board would be established for the office. Judges, attorneys, indigent defense groups, the county attorney and Commissioners Court all would get to make appointments to the board.

In the original application, public defenders would represent felony defendants accused only of low-level crimes such as possession of small amounts of drugs. The revamped proposal would have the public defender take on more serious felony trials. The plan also continues to provide for juvenile, appeals and mental health cases.

The county is also only asking for $4.1 million now, and there were some other changes made as well. It looks like they took the feedback they got seriously, and kudos to them for that. We’ll see how it goes from here.

The softer side of Sharon Keller

The Trib lets us know that there’s more to Sharon Keller than willful indifference to death penalty appeals and rigid fealty to the prosecutorial perspective.

For nearly as long as she has led the state’s highest criminal court, Keller has also served as chairwoman of the Task Force on Indigent Defense. Lawmakers created the task force in 2001 when Texas was a national laughingstock for its dismal provision of legal representation for poor criminal defendants. Now, counties must meet minimum standards for legal representation, thousands more poor defendants get qualified attorneys, and 91 counties — many in rural areas with few public resources — are served in some capacity by a public defender. Both critics and supporters of the Texas criminal justice system agree the task force has overseen a sea change in defense representation for people who can’t otherwise afford it. And despite the roiling controversy over her judicial conduct, most seem to agree that Keller’s leadership has been instrumental. “We started at ground zero,” said state Rep. Pete Gallego, D-Alpine, a member of the task force and chairman of the House Criminal Jurisprudence Committee. “We were one of the worst states around, and as chairman of the task force, she’s really been in a real sense responsible for building the whole thing.”

Among the major initiatives that have improved representation for the poor is increased funding for counties to provide defense services. Before 2001, the state gave counties no money to provide indigent defense. Lawyers who did the work often received a pittance, making it difficult for courts to find qualified lawyers to take the cases. Last year, the task force awarded counties statewide $31 million to run public defender offices and provide indigent defense. Andrea Marsh, executive director of the Texas Fair Defense Project, said Keller has worked not only to give counties funds they need for indigent defense, but also to give them incentives for new and innovative programs. Task force grants have helped launch programs like Travis County’s Mental Health Public Defender Office. “She has been supportive of giving more of that money to program improvements and not just giving that money for the same old thing that isn’t working,” Marsh said.

Among other things, the TFID would be the grant-awarder for the Harris County public defender’s office. I’d have to go back and re-read that Texas Monthly profile on Keller from 2009 to see if they mentioned this; if they had, or if I had realized what it was, I might have reacted a little less negatively to the piece. I’ll stipulate that she’s done good work with this, that she deserves credit for it, and that any thorough reckoning of her as a person needs to take this into account to be fair. But it has nothing to do with her actions in the Michael Richard case, and it has no bearing on her career as a judge, for which her behavior has been consistently and in many cases overtly hostile to defendants. I give her points for character and humanity, but as a judge she’s beyond redemption. Grits has more.

Ellis criticizes county’s public defender proposal

State Sen. Rodney Ellis, who authored the bill that allowed Texas counties to create public defender offices, is not pleased with the plan that Harris County currently has to establish one.

Ellis and other critics of the system say it compromises defense of the poor because attorneys must advocate before judges on whom they depend for future employment. Ellis said the arrangement is so morally bankrupt that he has approached legal advocacy groups to ask for help reforming Harris County courts.

“I’ve done my bit of talking to people around the country trying to get them to sue (the county), but it takes tremendous resources,” Ellis said.

[…]

Ellis accused local judges of circumventing the intent of his law by using a system in which each judge can decide his or her own system of providing for indigent defense. He said resistance from judges has resulted in a potentially fatally flawed public defender proposal.

“They’re trying to kill it,” Ellis said.

As we know, the county’s proposal has some flaws and may not get the funding from the state that it needs to get off the ground. I’ve said before that I think the proposal is a good start, but clearly there’s room for improvement. And it would be unacceptable to miss out on getting the grant funds, so one hopes the feedback from the Task Force on Indigent Defense will be taken seriously.

Is the county’s public defender proposal good enough?

This op-ed by Charlie Baird, judge of the 299th District Court in Travis County, and William Sessions, former chief judge of the U.S. District Court for the Western District of Texas, suggest that the start-up public defender’s office that Commissioners Court recently voted to authorize suffers from the same problem as the current system: lack of adequate oversight.

In response to public concerns about judicial conflicts of interest in picking defense lawyers, excessive caseloads and the poor quality of legal representation, Harris County agreed to create a pilot public defender office. Last week, Harris County applied for a grant from the state to pay for half of the public defender office over the first four years of operation. That grant is worth $4.4 million in the first year and $13.2 million over four years.

Unfortunately, Harris County is on the brink of not receiving that money because the planned public defender office lacks: 1) independence from the judiciary; 2) workload standards; and 3) uniform use of the public defender office by all judges.

With some tweaking, the proposal could be a step in the direction of justice for Harris County. But as it’s now written, justice will continue to be denied even with the new public defense office in operation.

A major problem with the proposed plan is that it permits individual judges to decide whether they want to maintain the status quo and not let the newly established public defender office represent defendants in their courts. The core of our justice system is to treat every individual brought to court on criminal charges fairly. How then can some judges opt out of the reforms in favor of business as usual? In such a system, the extent of justice a person receives may be entirely dependent on the court in which the case is heard.

Additionally, the new proposal fails to establish limits on the workloads of public defenders or appointed counsel. These limits are essential to ensuring that quality defense services are provided and that defense attorneys do not violate their ethical duties to provide competent and diligent representation to their clients.

More about that grant for which the county is applying is here. I’ve said before that I don’t accept the objections from the judges who want to maintain the status quo. Even if a few of them are doing a decent job with their own pool of contract attorneys, the system as a whole isn’t working, and it’s not just those judges who’d be opting out if they are allowed to do so. If we’re going to do this, and I believe we should, we need to do it right.

And these are not just theoretical concerns, either.

The Task Force on Indigent Defense, created by the Texas Legislature in 2001, has asked the county to spend some of its own money on the office, expand its scope and create an independent oversight board.

If the revisions adequately address what James Bethke, the task force’s director, calls requests for “clarification,” the county would be well-positioned for a grant. If the revisions do not pass muster at the task force’s August board meeting, Bethke said, the county would have to wait a year for another shot.

“We respect local control,” Bethke said of Harris County’s plan, but “certain principles … do need to be met.”

On Wednesday a task force committee gave the county until July 12 to fix its plan.

Baird and Sessions’ suggestions would cover the task force’s items. It’s up to the county to make this work, and they are on the clock to do so.

Public defender office gets OK from Commissioners Court

Good.

The Harris County Commissioners Court voted Tuesday to start a public defender office on an experimental basis, as long as the state covers the $4.4 million cost for the first year.

The unanimous vote authorizes the county to apply for a grant from the Texas Task Force on Indigent Defense. If awarded the money, Harris County would open an office with lawyers dedicated to representing indigent defendants full time in October. It would start with mis demeanor mental health cases and felony appeals cases.

Within two years, it would expand to a staff of 68 handling about 6,400 criminal cases of all types in the civil and district courts. The office’s lawyers would be involved in about half of all felony appeals, about a quarter of juvenile cases and smaller percentages of adult misdemeanors and felonies, according to projections provided by Caprice Cosper, director of the county’s Criminal Justice Coordinating Council.

A public defender office would not replace the current system, in which judges choose defense counsel for the indigent from a randomly generated list of lawyers. The result would be a hybrid system for indigent defense in which the public defender and judge-appointed lawyers would share the caseload.

You can learn more about the Task Force on Indigent Defense here; my thanks to Scott Henson for leaving a comment in my previous post about them. Here’s hoping the grant application is successful.

Another step forward for a public defender’s office

I’m not sure exactly what this entails, but it’s good to see progress.

Harris County plans to launch a limited public defender office in October if it receives a $4.4 million state grant.

The office would start with 30 people defending the indigent on appeals of felony cases and in misdemeanor cases with mentally ill defendants.

If approved, the state money would cover the cost of the office for the first year and a decreasing share of the costs the following three years. At the same time, the public defender office would expand to take on adult felony defendants and juvenile defendants on its way to becoming a full-service in-house defense firm for local criminal court cases.

Currently, judges appoint lawyers for indigient defendants from a randomly generated list. The county spent $33.8 million last year on court-appointed defense.

The proposed public defender office would not replace the current system, but result in a hybrid, said Caprice Cosper, director of Harris County’s Criminal Justice Coordinating Council.

See here, here, and here for some background. I don’t know what state funds are being applied for or what the criteria are for getting them, but I presume the ducks will be in order. There’s an item on tomorrow’s Commissioners Court agenda to deal with it. As you know, I think a public defender’s office is a good idea, and I’m glad to see progress being made on implementing it.

Yes, Your Honor, we do need a public defender’s office

I really don’t understand the argument against at this point.

More than 100 private attorneys were assigned by judges to represent inmates who could not afford a lawyer in felony cases in 2008. Sixty of them received more than $100,000.

Yet, no one in Harris County is centrally assigned to oversee those attorneys or monitor their caseloads or complaints. None of the lawyers are routinely required to document the hours or provide details on how much they worked on each case, according to the county auditor’s office and interviews with judges and attorneys.

At least 54 court-appointed attorneys handled more than a nationally recommended limit of 150 felony cases in 2008. Brown’s lawyers juggled more than 1,000 clients each year while representing the 30-year-old Houston native, who had a lengthy history of drug arrests, an analysis of Harris County case records by the Houston Chronicle shows.

[…]

More than half of the overcrowded Harris County jail’s 10,000 inmates are waiting to go to trial. As of July, as many as 500 accused people unable to post bail had waited a year or more in jail as their cases wound their way through the clogged Harris County courts — twice as long as the county’s own consultants say those cases should take to process, a Chronicle analysis of jail inmates found.

In the current system, the judges test and screen a pool of defense lawyers. But all 22 district judges have different requirements for appointees.

Two felony judges already run their own public defender operations, serving the dual role of judge on those cases as well as de facto employer of a handful of attorneys assigned annually to represent many of the poorest defendants in their courts. Denise Collins is listed as one of 11 judges who expressed an interest in using proposed public defenders for appeals; Michael McSpadden voted not to participate.

“I can’t imagine anyone doing a better job than I am with my four contract attorneys,” McSpadden said. “The people who think the public defender system is going to cure all ills in our system are crazy.”

In written responses, Collins said she has confidence in the experience of the three attorneys she already uses.

Yet both Collins and McSpadden use defense attorneys with heavy caseloads, and their courts are plagued by backlogs. Theirs are among nine of the 22 district courts with backlogs of more than a year for 100 or more felony cases.

I can understand the judges’ reluctance to change. The devil you know is almost always less scary than the devil you don’t. But look, you can’t seriously argue that what we’ve got now is working just fine. If you don’t like the idea of a public defender’s office, the onus is on you to come up with an alternate plan that will accomplish the goal of representing indigent defendants in a cheaper, more effective, and more expeditious manner. Much like with the health care debate, maintaining the status quo isn’t an option. Come up with a fix or get out of the way of those who have.

Commissioners Court approves public defenders plan

The “hybrid” public defenders office that Commissioners Court had been considering was approved Tuesday by a 5-0 vote, though the details still need to be worked out in time for the February 2010 budget meeting.

“It’s going to take however long its going to take,“ Commissioner El Franco Lee said. “It’s now in the hands of judges, and bureaucrats and accountants who will tell us what that costs, can we afford it, and when we can afford if we can’t afford it now.”

Officials are hoping a public defender office will help reduce the backlog of jail inmates awaiting trial in the overcrowded county jail system — currently holding 11,430 inmates in jails from Houston to Louisiana — and divert others with mental problems from incarceration.

“At the end of the day this really isn’t just about money, it’s about justice. We have to ensure the public that defendants are getting an adequate defense,” County Judge Ed Emmett said afterward. “The court’s unanimous vote to move forward is a clear indication of an intent to establish a pubic defender’s office in next year’s budget.”

The 5-0 vote came during the court’s annual mid-year budget review. The court referred the implementation of the plan to the newly formed Criminal Justice Coordinating Council. The council, chaired by Lee and drawn exclusively from elected officials, was created by the court this summer to help alleviate chronic jail overcrowding and streamline the county’s criminal justice system.

Sheriff Adrian Garcia, a member of the council, said he would support a public defender office if the council did. District Attorney Patricia Lykos has said she would support a public defender office or court-appointed attorneys, as long as indigents receive effective legal representation.

It’s a good start, and hopefully by having dedicated employees for the task of indigent defense we really can start to make a dent in the jail population. If they can succeed in getting more people out on bail, and getting those who need treatment for mental illnesses steered in that direction, it should have a real effect. I’m encouraged by this and look forward to seeing the final product. A statement from State Sen. Rodney Ellis, who is one of the champions of this effort, is beneath the fold.

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The county’s proposal for a public defender’s office

Next week, a proposal for a “hybrid” public defender’s office will be presented to Harris County Commissioners Court.

It is considered a hybrid because it would allow courts to use both public defenders and private attorneys. For example, two of the county’s three juvenile courts are interested in assigning public defenders to represent 60 percent of the young defendants; the other 40 percent would get lawyers appointed by the judge.

Advocates say creation of a public defenders office can help quickly reduce chronic overcrowding in the Harris County Jail, where more than half of the 11,500 inmates are awaiting trial. The lawyers hired for the office would earn the same as prosecutors employed by the District Attorney’s Office.

The proposal, included in the county’s midyear review before Commissioners Court next week, was applauded by defense advocates who favor the county’s approach to modify the existing system.

“It’s an excellent step in the right direction,” said Jim Bethke, director of the Task Force on Indigent Defense, part of the Texas Judicial Council in Austin. “Ultimately, we want to help county government improve delivery of indigent defense services, and the work and effort they put into this is extremely commendable. They’re not trying to just jump into it and throw something together.”

The proposal, so far, appears to have less than full support among the county’s state district criminal judges.

Only 11 of the 22 state district criminal judges expressed interest in the use of public defenders for appellate work, while only five courts endorsed the concept for felony trials. Two of the three juvenile courts are interested in public defenders, while all 15 county criminal courts have agreed to a hybrid system to represent mentally ill or disabled indigents, according to documents from court administrators.

[…]

The public defender proposal, under study since April, was drafted by the Office of Court Management and will be referred to the county’s newly created Criminal Justice Coordinating Council after it’s presented to Commissioners Court on Tuesday.

The proposal was not endorsed by District Attorney Patricia Lykos, nor by the county’s criminal defense lawyers.

“The mission of the Harris County District Attorney’s Office is to seek justice. Defendants are entitled to effective representation, and indigent defendants have the right to have counsel appointed,” said Lykos, in a statement released late Friday. “Whether counsel is court-appointed or provided through a public defender’s office is a public policy decision. This office will respect whatever decision is made.”

JoAnne Musick, president of the 600-member Harris County Criminal Lawyers Association, said her group is “split roughly 50-50,” and even lawyers who favor a public defender office are reserving judgment until they see how it would be administered. And the county’s judges are unlikely to agree on a program that will curtail their ability to select, and approve hefty legal fees, to private attorneys, she said.

Ana Yanez-Correa, executive director of the nonprofit Texas Criminal Justice Coa­lition in Austin, said the county’s proposal “is one of the strongest proposals we’ve seen in a while.”

It also could provide another benefit, she said, noting that the Harris County Jail is overcrowded, “and what adds to overcrowding is not having a responsible, fast way of handling cases.”

The CJC sent a letter in support of a public defender’s office last week. Grits has more on the proposal itself. I’d be interested to know which judges are in favor of it and which are opposed. Is there a partisan divide? Are the judges who are up for re-election in 2010 more or less likely to favor it? I think we deserve to know the answers to those questions.

In support of a public defender’s office in Harris County

The Criminal Justice Coalition has sent a letter to County Judge Ed Emmett and Harris County Commissioners Court in support of establishing a public defender’s office in Harris County. You can read the letter here. The Court approved a study of such an office last April, and the original plan was to have it up and running by this October. The letter is basically a polite but firm nudge to get a move on. Check it out.