Overview of Texas Indigent Defense - TIDC · Overview of Texas Indigent Defense Presentation for...

Overview of Texas

Indigent Defense

Presentation for the Mexican American Bar

Association (MABA) of Tarrant County

April 27, 2017

Scott Ehlers, Policy Analyst

Texas Indigent Defense Commission

1

Who We Are What We Do

Our Mission

Our Grant Program

Our Fiscal and Policy Monitoring Program

Our Innocence Program

Is to provide financial and technical support to counties to

develop and maintain quality, cost-effective indigent defense

systems that meet the needs of local communities and the

requirements of the Constitution and state law.

In FY 2016 $31.5 million was disbursed toTexas counties.

Formula grant awards totaled $25.1 million to all 254

counties. Discretionary grants totaled just over $6.4 million.

The Commission monitors each county that receives a grant

to ensure state money is being properly spent and

accounted for and to enforce compliance by the county with

the conditions of the grant, as well as with state and local

rules and regulations.

Since 2005, the Commission has provided up to $100,000

annually to University of Texas School of Law, the Texas Tech

University School of Law, the Thurgood Marshall School of

Law at Texas Southern University, and the University of

Houston Law Center to operate innocence clinics. This

funding has contributed towards 11 exonerations. In 2015

the 84th Legislature expanded funding to include $100,000

per year for two new public law schools at the University of

North Texas Dallas College of Law and the Texas A&M

University School of Law in Fort Worth.

Thirteen-member governing board administratively attached to the Office of Court

Administration. Jim Bethke is the Executive Director. The Commission has eleven

full-time staff.

Chair:

Honorable Sharon Keller Chair – Presiding Judge, Court of Criminal Appeals

Ex Officio Members:Honorable Sharon Keller Austin, Presiding Judge, Court of Criminal Appeals

Honorable Nathan L. Hecht Austin, Chief Justice, Supreme Court of Texas

Honorable John Whitmire Houston, State Senator

Honorable Brandon Creighton Conroe, State Senator

Honorable Joseph “Joe” Moody El Paso, State Representative Junction

Honorable Andrew Murr Junction, State Representative

Honorable Sherry Radack Houston, Chief Justice, First Court of Appeals

Honorable Linda Rodriguez Hays County

Members Appointed by the Governor:

Mr. Alex Bunin Houston, Chief Public Defender, Harris County

Public Defender Office

Honorable Jon Burrows Temple, Bell County Judge

Honorable Richard Evans Bandera County Judge

Mr. Don Hase Arlington, Attorney, Ball & Hase

Honorable Missy Medary Corpus Christi, Presiding Judge, 5th Administrative Judicial

Region of Texas

2

Historical Context

Historical Context

3

Gideon vs. Wainwright SB 7 – Texas Fair Defense Act

1963 2001/2002

2017

15 Years of Implementation

Struggle to translate at state level the “right to counsel” into a meaningful indigent defense system

The Long Road to Make Indigent Defense Meaningful

4

Prior to 2002 Present

No state funding or oversight

No reporting requirements on spending or caseloads

No uniformity in local indigent defense appointment practices

No consistent standards regarding attorney training and experience

Judges’ discretion to select counsel, pay fees and determine who is indigent fueled appearance of

cronyism

Inconsistent quality of death penalty representation

Key process standards implemented

State provides some funding to support indigent defense

Commission created to provide oversight

Counties now report indigent defense plan and expense information to Commission

Attorney caseload and practice-time reporting pursuant to HB 1318 (83rd Legislature)

Attorney training and qualification standards adopted

Death penalty appellate attorney qualifications established

Pre-Fair Defense Act through Present

5

-

7.3

11.6

11.8

14.3

14.3

17.5

21.5

28.4

28.0

33.7

28.3

27.4

44.8

29.8

31.6

91.4

106.7

117.7

126.5

126.0

134.7

143.6

152.7

158.5

167.1

164.7

179.2

189.7

185.1

208.2

216.1

91.4

114.0

129.3

138.3

140.3

149.0

161.1

174.2

186.9

195.1

198.4

207.5

217.1

229.9

238.0

247.7

2001

2002

2003

2004

2005

2006

2007

2008

2009

2010

2011

2012

2013

2014

2015

2016

Texas Indigent Defense Expenditures (in millions) by Fiscal Year

Total Expenditures

County Expenditures

State Expenditures

Expenditures (in millions) by Fiscal Year

State & County Criminal Indigent Defense Expenditures

(in millions) by Fiscal Year

6

The Funding Gap Growing

2001 Baseline

State: $0 County: $91m

Total spending: $91m

2015

State: $28.6m* County: $209.4m

Total spending: $238m

Indigent defense costsincreasing by

~ $10 million a yearGap widening by ~ $7.8 million per year just on

increased costs

~ $2.2 million in new GR (per year) to close gap

* Including pending FY15 grant obligations

0%

10%

20%

30%

40%

50%

60%

70%

80%

2003 2005 2007 2009 2011 2013 2015

Felony Appointment Rate

Misdemeanor

Appointment Rate

Other Significant Events

ROTHGERY VS. GILLESPIE

COUNTY (2008)

82nd Legislature amended

Art. 1.051 dealing with

waivers of counsel (2008)

HECKMAN VS. WILLIAMSON COUNTY filed (2006) and settled (2013)

Appointment Rates 2003 – 2015

Decreasing Rates of Pro Se Misdemeanor Defendants

• Since 2011, when OCA began tracking the number of retained cases, the percentage of pro se misdemeanor cases has decreased every year

% of Pro Se Misdemeanor

DispositionsFY 11 FY 12 FY 13 FY14 FY15

Statewide 33.2% 28.8% 27.5% 25.4% 23.8%

Counties Under 50k Pop. 68.7% 66.3% 66.4% 63.5% 61.7%

Counties Between 50k & 250k Pop. 56.9% 50.8% 48.4% 46.6% 42.5%

Counties Over 250k Pop. 19.6% 15.2% 13.3% 11.6% 11.3%

• The number of pro se dispositions can be estimated by the following formula: Pro Se Dispositions = Total Dispositions – Total Retained Cases – Total Cases in Which Attorneys were Paid

Full State Funding

State Funding ≥ 50%

State Funding < 50%

No state funding

State Variation in Funding Indigent Defense

10

TIDC Programs

11

• Grant Programs – Formula Grants and Discretionary Grants

• Monitoring Programs – Policy Monitoring, Fiscal Monitoring,

Complaints Processing

• Innocence Program

• Recommendations to the Legislature

• Resources, Publications, Education, and Awards

Historical ContextOpen & Transparent Government

Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light

the most efficient policeman.

-Supreme Court Justice Louis Brandeis12

TIDC Website and Local Indigent Defense Data

tidc.texas.gov

13

Shining “Sunlight” on Indigent Defense

System by Publicizing….

• County Indigent Defense Plans

• County Fee Schedules

• Research and Publications

• Results of Fiscal and Policy Monitoring

• Local Indigent Defense Data


tidc.texas.gov

14


tidc.texas.gov

15


16

Tarrant

County

Data

Sheet


17

Tarrant

County

Attorney

Caseload

Report-

Tarrant Only

Sorted by

Total Paid

(2016)


18

Tarrant

County

Attorney

Caseload

Report-

All Counties

Sorted by

Total Paid

(2016)


19

Tarrant

County

Attorney

Caseload

Report-

All Counties

Sorted by

Total Cases

(2016)

Indigent Defense Delivery Systems in Texas

20

1) Assigned Counsel Systems

2) Public Defender Systems

3) Contract Defender Systems

4) Managed Assigned Counsel Systems

Many variations within these basic types

Some systems are a hybrid of 2 types

Assigned Counsel Systems

21

Jimmy McGill, aka Saul Goodman in Better Call

Saul, shows his displeasure with payment he

received working as an appointed lawyer in a

fictional assigned counsel system in New Mexico.

• Most widely used in Texas (around

90%, including Tarrant Co.)

• Sometimes called “ad hoc” systems

• Private attorneys are appointed

from an appointment list

• Attorneys are appointed to handle

individual assigned cases on

rotating “wheel”

• Attorneys compensated as

independent contractors


22

Potential Advantages of


Utilizes existing pool of private attorneys

Lets attorneys combine public & private practice

Can attract top quality attorneys

County not responsible for attorney overhead

But County is supposed to compensate for overhead


23

Potential Risks of Assigned Counsel Systems

No systematic attorney training

No systematic attorney supervision

No systematic monitoring of attorney performance

No systematic monitoring of attorney caseload

Lacks independence from judiciary if “wheel” not strictly followed

Judiciary control of, involvement in approval of investigators and experts

Can be refuge for incompetent attorneys


24

Potential Risks of Assigned Counsel Systems

Administrative costs borne by courts

Screening and maintaining appointment lists

Managing appointments

Managing attorney compensation

Managing expert/investigator compensation

Higher time burden on courts and court administrators

Managed Assigned Counsel

Programs (MACs)

25

The Inspiration to Bring MACs to Texas

26

Managed Assigned Counsel Programs

27

What is a Managed Assigned Counsel Program (MAC)?

• A new option for counties to achieve some of the benefits of public defender system within an assigned counsel system

• Defense services are administered by:

– A county department; or,

– Non-profit organization under contract with the county


28

Texas MACs

Lubbock Private Defenders’ Office

Collin County

Mental Health

Managed Counsel

Program


29

Potential Advantages of a MAC

• Uses existing pool of qualified attorneys

• Shifts administration of defense function from

courts to an defense entity

• Enhances independence of defense function

• Centralized forum for criminal defense lawyers

• Institutional representative for indigent defense bar

• Better ability to apply for State and Federal grants


30


• Does not require a secondary system for conflicts

cases like a public defender system

• Does not grow government significantly/uses

private sector to provide direct client services

• Reduces time burden on judges and court

administrators

• Can reduce time for payment of vouchers


31


Improved oversight and accountability of

defense function:

• Systematic attorney training, mentoring

• Systematic attorney supervision

• Systematic monitoring performance

• Systematic monitoring of caseloads


32

Potential Risks of MACs

Some start-up costs.

Costs associated with administration of program likely more than

currently being provided.

Could become politicized.

Choosing the right Managing Attorney is critical.

Lubbock and San Mateo Fully privatized all services including

payment and individual appointment

Entire indigent defense budget paid

directly to organization

Lubbock 10,000 cases / 6 staff /

80 attorneys

San Mateo 15,000 cases / 16 staff /

110 attorneys

Travis County Hybrid model leaving some of the

administrative functions in Court

Administration

Reduces complexity of

implementation and costs

Travis 25,000 cases / 8 staff /

210 attorneys

Fully Private vs. Hybrid Model

33

Improving Indigent

Defense Representation

in Texas –

Now and Into the Future

34

Guidelines For Indigent Defense Caseloads

Legislative Charge: HB 1318

Not later than January 1, 2015, the Texas Indigent Defense Commission SHALL conduct and

publish a study for the purpose of determining guidelines for establishing a maximum

allowable caseload for a criminal defense attorney that… allows the attorney to give each

indigent defendant the time and effort necessary to ensure effective representation.

Guidelines for Indigent Defense Caseloads

36

EXPERT PANEL’S RECOMMENDATIONS

ON ANNUAL CASELOADS

226128

0

50

100

150

200

250

Delphi Recommendation

Weighted Caseload Study

MISDEMEANOR FELONY

37

CASE WEIGHT RECOMMENDATIONS

RecommendationsNumber of Cases for

100% FTE

Misd. B 8.8 hours per case 236 cases

Misd. A 9.6 hours per case 216 cases

SJ Felony 12 hours per case 174 cases

Felony 3 14.5 hours per case 144 cases

Felony 2 20 hours per case 105 cases

Felony 1 27.1 hours per case 77 cases

2,080 Hours per Work Year

Recommended Hours per Case

GAP / ACTUAL VS RECOMMENDED

6.1 Hours

13.7 Hours3.1 Hours

2.5 Hours

0

5

10

15

20

Misdemeanor Felony

Ho

urs

Current Practice Hours for Effective Practice

50% More Time per Misdemeanor

19% More Timeper Felony

Performance Guidelines for Non-Capital Criminal


40

• Drafted by the Legal

Services to the Poor in

Criminal Matters

Committee of the State

Bar of Texas.

• Committee received

hundreds of comments

from lawyers, judges, and

legal organizations.

• Adopted by the State Bar

of Texas Board of

Directors on January 28,

2011.



41

Role of Defense Counsel

Education, Training, and Experience of Defense Counsel

General Duties of Defense Counsel

General Obligations of Counsel re: Pretrial Release

Initial Interview

Initial Appearance before Magistrate and Pretrial Release Proceedings

Examining Trial

Competency to Stand Trial

Prosecution Requests for Non-Testimonial Evidence

Investigation

Formal and Informal Discovery

Theory of the Case

Arraignment

The Decision to File Pretrial Motions

Filing and Arguing Pretrial Motions

Subsequent Filing of Pretrial Motions

The Plea Negotiation Process and the Duties of Counsel

The Contents of the Negotiations

The Decision to Enter a Guilty Plea

Entry of the Plea before the Court

General Trial Preparation

Voir Dire and Jury Selection

Opening Statement

Confronting the Prosecution’s Case

Presenting the Defense Case

Closing Argument

Jury Instructions


Defense Representation (cont’d)

42

Obligations of Counsel in Sentencing

Sentencing Options, Consequences and Procedures

Preparing for Sentencing

The Official Presentence Report

The Prosecution’s Sentencing Position

The Defense Sentencing Memorandum

The Sentencing Process

Self-Surrender

Expungement of Record

Duties of Defense Counsel in Post-Trial Proceedings

Education, Training and Experience of Defense Counsel in Post

Trial Proceedings

Motion for a New Trial

Protecting the Right to Appeal

Direct Appeal

Right to File a Petition for Discretionary Review

Petition for Discretionary Review

Right to File a Petition for Certiorari to the United States

Supreme Court

Indigent Defense Mentorship Programs

43

• Indigent defense mentoring programs

have been established in Bell; Comal;

Harris; Lubbock; and Travis counties.

• Goals: Develop the next generation of

indigent defense providers by giving

them real world experience and

guidance by experienced attorneys.

• TARRANT COUNTY IS NEXT!!!

Contact

Scott Ehlers

Policy Analyst

Texas Indigent Defense Commission

512.936.7551 – [email protected]

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