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Task Force on Indigent Defense

Endorsement watch: The Chron for Hampton

The Chron joins the DMN and the Star-Telegram in endorsing Keith Hampton for the Court of Criminal Appeals.

We highly recommend that voters cast their ballots instead for Democratic challenger Keith Hampton. This endorsement is not merely a rejection of the incumbent judge’s poor track record, but enthusiastic support for Hampton’s impressive history of working to improve the Texas judiciary, whether trying cases in courtrooms or shaping policy in Austin.

With experience ranging from criminal district courts up to the U.S. Supreme Court, Hampton has an extensive criminal defense track record that’s not common enough on the state’s highest criminal court. Endorsed by seven former state bar presidents, Hampton is respected across the political spectrum for his work and expertise. As governor, George W. Bush appointed Hampton to the Ad Hoc Advisory Committee to revise the Code of Criminal Procedure. And when he was on the Texas Supreme Court, John Cornyn appointed Hampton to the Supreme Court Jury Task Force.

Hampton also worked with state legislators to improve our judicial system, notably spearheading the creation of Veterans’ Courts in Texas – specialty courts that handle veterans suffering from service-related injuries, such as post-traumatic stress disorder, who are prone to violence or drug use.

One would be hard pressed to find a better candidate for the Court of Criminal Appeals.

As you might expect, the Chron began their piece with the usual airing of grievances against Sharon Keller, before noting that their recommendation of Hampton was based on more than just her long list of sins. It must be noted that Keller does have some positive accomplishments in her tenure as judge, mostly having to do with the state’s Indigent Defense Task Force. But whatever positive qualities she must have had to bring to that work, they have been consipcuously absent in her judicial record, and it is by that record that we judge her. By any accounting of that record, she fails as a judge, and it is only right to vote her off the bench. As I said before, it should be the case that editorial boards across the state reach that conclusion.

And if they do, will it make any difference? I asked that question back in 2006, when Democratic Supreme Court candidate Bill Moody swept the newspaper endorsements against underqualified Perry appointee Don Willett. My conclusion at the time was that all things being equal it was worth a few percentage points in the final tally. That was six years ago, in an election that had relatively low turnout and low levels of partisan fervor, neither of which are or will be true this year. Still, given that each endorsement is also an opportunity to remind people of Keller’s awful record, I do figure it will make some difference, and in an election where 48% of the vote may well be enough to win, every little bit helps. We’ll see how it turns out.

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.