For a Public Defender's Office

 Posted on April 09,2008 in Uncategorized

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

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

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

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

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

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

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

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

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