EVOLUTION OF THE HARRIS COUNTY PUBLIC DEFENDER OFFICE

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1 EVOLUTION OF THE HARRIS COUNTY PUBLIC DEFENDER OFFICE ABA 10 th Annual Summit on Indigent Defense Improvement February 7, 2015 Houston, Texas Senator Rodney Ellis, Texas Senate Alex Bunin, Harris County Public Defender George Mac Secrest, Chairman, Harris Co. Public Defender Board of Directors

2 VI Amendment In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

3 77 (R) SB 7, The Fair Defense Act Requires all criminal courts in Texas to adopt formal procedures for providing appointed lawyers to indigent defendants. Every plan is required to meet minimum statewide standards and/or specify local procedures in the following areas: Prompt appointment of defense counsel Methods for selecting defense lawyers eligible to receive court appointments, including qualification standards Methods for selecting defense lawyers for appointment in specific cases Methods for determining defendant eligibility for appointment of counsel (indigence standards) Fee schedules for payment of appointed defense lawyers Compensation procedures for experts and investigators in cases involving indigent defendants Created the Task Force on Indigent Defense (now called the Texas Indigent Defense Commission), to oversee the implementation of the FDA and administer a new state program for awarding indigent defense grants to counties. In 2001, the Texas Legislature appropriated the first-ever state funding for indigent defense at that time, approximately $12 million per year to supplement county spending, which then totaled approximately $94 million per year.

4 Steps to Establish a Public Defender s Office In order for a county to implement a Public Defender's office, state law requires: The written approval of at least one judge (juvenile court, county court, statutory court, or district court trying criminal cases in the county). Commissioner's Court must vote to approve the PD's office. The judges must approve to amend its Indigent Defense plan. In the case of Harris County, we had to get the approval of three different indigent plans which means three different sets of judges including: the District Court, Criminal County Court at law and the Juvenile Courts.

5 Before the Public Defender Harris County was the largest jurisdiction in the country without a public defender s office. Indigent defendants and juveniles were only represented by private appointed counsel, mostly solo practitioners. Only institutional voice for appointed counsel and the defense bar was the Harris County Criminal Lawyers Association (HCCLA). Remaining Issues Critics complain about excessive caseloads and quality of representation by private appointed counsel, aka the plea mill. Complaints about lack of independence from judiciary, lack of defense investigators and experts, disparity of resources compared to District Attorney s Office.

6 The Long (or Short?) Road to Establishing a Public Defender in Harris County. Late 2007: HCCLA Membership Poll re Establishment of Public Defender; membership split but in favor. March 2008: Articles in Houston Chronicle about Sen. Ellis meeting with Houston Lawyers Assoc. about establishing PDO; Ellis/Scheck op-ed for PDO; editorial supporting PDO; and judges views on PDO.

7 The Long (or Short?) Road to Establishing a Public Defender in Harris County. (cont d) April 2008: Commissioners Court instructs Budget Officer Dick Raycraft to study creation of public defender. Summer 2008: Mark Hochglaube and Pat McCann, HCCLA President, visit district judges to gauge interest 3 are interested; 1 would allow use of name before Commissioners Court. Media debate continues. Sept. 2008: Commissioners Court authorizes continued study of public defender; initial plan calls for PDO to operate in 4 dist. cts.; 1 juv. ct.; and 15 county courts (MH/MR defendants only).

8 The Long (or Short?) Road to Establishing a Public Defender in Harris County. (cont d) Sept. 2009: Texas Fair Defense Project publishes report on Benefits of a Public Defender Office. Commissioners Court, prodded by 2 dozen Houston ministers and civil rights activists, vote 5-0 to develop a PDO. Only 11 of 22 dist. cts. interested in using office for appellate; 5 for felony trials; 2 of 3 juvenile cts.; and 15 county courts for MH/MR defendants. Spring 2010: Harris Co. submits 1 st grant request to Task Force on Indig. Def. for $4.4 million for year 1; $13.2 m over 4 yrs. Plan only calls for PDO to represent MH/MR misd.; appeals; juveniles; and low-level felonies.

9 The Long (or Short?) Road to Establishing a Public Defender in Harris County. (cont d) May 2010: Nat l Legal Aid and Defender Assoc., Nat l Assoc. of Criminal Defense Lawyers, The Constitution Project, Spangenberg Project, William A. Lawson Institute for Peace and Prosperity, clergy, and criminal justice advocates issue criticisms of the Harris County public defender plan, including: o No independent oversight board. o No caseload standards. o Limited judicial buy-in; no uniform use of office by judges. o Only represent low-level felonies. June 2010: Article in Houston Chronicle Senator criticizes lack of action on Harris public defender office The status quo is an inherent conflict of interest, state Sen. Rodney Ellis, D-Houston, said Thursday. It is sleazy. It is old school. Houston Chronicle Op-Ed by Judge Charlie Baird and William K. Sessions

10 The Long (or Short?) Road to Establishing a Public Defender in Harris County. (cont d) July 2010: Harris Co. revises grant proposal and Commissioners Court approves. Now 20 judges agree to use office for felony trials; 18 for appeals. Felonies of various degrees to be represented. Oversight board. Caseload limits. SCLAID to assist in developing performance measures. Aug. 2010: Task Force on Indigent Defense approves grant; $4.1 mil. first year. Sept. 2010: Commissioners Court appoints Harris Co. Public Defender Board members.

11 Harris Co. Public Defender Board 15 Members Per the Grant 2 Commissioner Court members District Judge Presiding Judge of County Criminal Courts at Law Juvenile District Judge 3 attorneys practicing criminal defense or juvenile law, chosen from the 5 countywide bar associations with largest memberships 4 members from organizations concerned with problems of indigent persons, chosen by Commissioners Court Administrator of District Courts Manager of Statutory County Courts Attorney representing the County Attorney s Office

12 Harris Co. Public Defender Board (cont d) Duties Interview and select Chief Public Defender Recommend candidate to Commissioners Court Oversee development and operation of Public Defender Office as directed by Commissioners Court Additional responsibilities decided by Commissioners Court Fiscal authority retained by Commissioners Court. Sept./Oct Board interviews candidates for Chief; selects Alex Bunin, Federal Public Defender for N. Dist. of NY Nov. 9, 2010 Commissioners Court approves hiring of Bunin

13 Creating the Public Defender Office Hiring staff Purchasing furniture and equipment Information Technology Designing a new office Policies and procedures Intergovernmental relations Private bar relations

14 Evolution of the Office Year One

15 HCPD Organizational Structure

16 How the HCPD Differs from Many Other Public Defender Offices Attorneys: Most are highly experienced Represent small percentage of overall indigent cases in county Misdemeanor defense limited to MH/MR clients algorithm chooses clients Internal control over caseload flows Mental health personnel on staff Policy analyst/legislative liaison on staff Salary parity with the District Attorney s Office

17 Limiting Caseloads Caseload limits built into grant proposal establishing office Felony Division: 150 cases per attorney/year MH/MR Misdemeanor Division: 350 per attorney/year Juvenile: Approx. 205 per attorney/year Appellate: 25 cases per attorney/year Felony Division Chief controls case flows from courts by varying how often office appears on wheel MH/MR Special Counsel can control case flows by altering algorithm which determines which defendants are assigned to the PDO

18 Holistic Defense HCPD not authorized to handle civil cases HCPD s version of holistic defense includes: Assistance to clients via mental health/psychosocial staff Public policy staffer to seek improvements to criminal law at the legislature, liaison with legislative staff Community Outreach Know Your Rights Campaign with Texas Criminal Justice Coalition Assistance to the private bar to improve larger indigent defense system

19 Assistance to the Private Bar Appellate and trial lawyers provide case/trial advice to private bar. CLE for private bar. Resources for private bar, i.e. computers, office equipment, library use. Clothes closet for private bar clients. Positive relations, staff involvement with HCCLA. Leadership positions; organize 2 nd Chair program; magazine articles. Trial transcripts of law enforcement, state expert testimony. FACT Program training, mentoring for new lawyers in private practice dedicated to providing quality indigent defense. Another voice for the defense before judges, prosecutors.

20 Evaluation of the HCPD Performed by the Council of State Governments Justice Center Evaluated operations of the HCPD + limited analysis of Harris Co. private appointed counsel system Evaluation based on ABA Ten Principles and comparison of defense outcomes between HCPD, private appointed counsel, and retained counsel

21 Evaluation of the HCPD (cont d)

22 Evaluation of the HCPD (cont d) Other Key Findings Misdemeanor dismissals were five times more likely for HCPD clients with mental health diagnoses than for a group of similar defendants with assigned counsel. Felony HCPD counsel achieved a greater proportion of dismissals, deferred sentences, and acquittals, and a smaller proportion of guilty outcomes, than assigned counsel. HCPD secured acquittals on all charges at three times the rate of appointed and retained counsel. Felony HCPD counsel was far more likely to take their cases to trial than appointed counsel or retained counsel. Once at trial, HCPD clients were more likely to get acquittals for all charges; 22 percent of HCPD clients were found not guilty at trial. More investigation time was spent by HCPD, which correlated with positive case outcomes. HCPD spent an average of $135 per case, compared to the assigned counsel system which spent an average of $13 per case.

23 Systemic Litigation Representing Applicants in Habeas Writ Cases DPS analyst Salvador drylabbing, sloppy forensic work Cases involving pleas in drug cases where no drugs later found DPS Houston The Scene of the Crime Cocaine? Or baby powder?

24 Systemic Litigation (cont d) Court Costs Litigation Issues Raised Proper cost bills not being produced by the district clerk How to appeal court costs Excessive court cost amounts Crime doesn t pay unless you re the Government. Constitutionality of certain court costs

25 Contact Sen. Rodney Ellis Texas State Senate ph: George Mac Secrest ph: Macsecrestlaw.com Alex Bunin, Chief Harris Co. Public Defender Office ph:

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