In a move some legal experts call a possible game changer, Travis County judges want to cede to attorneys the power of choosing private defense lawyers for poor defendants.
The plan has emerged from nearly two years of discussions among judges, attorneys and court administrators, and its main drivers have been judges who say the current criminal indigent defense system has grown too unwieldy for their sole control and doesn’t meet American Bar Association ethics guidelines.
If approved and funded by county commissioners, a new office of Travis County Private Defender — an estimated $670,000 nonprofit under the control of the private defense bar — would assign lawyers to indigent cases, determine compensation for their work and derive a set of standards to evaluate their performance.
Critics of the petition say the measures could prove costly and fuel layers of unneeded bureaucracy. But proponents say it is time to drastically reshape the county’s indigent defense services into a more uniform and fair system.
Outside legal experts say such a new structure in one of the five largest counties in Texas could become a state — and even national model — for equal representation.
“Judges do not pick the prosecutors, and they should not pick the lawyer representing the person accused of committing crime,” said state Sen. Rodney Ellis, D-Houston. “If the county moves forward with this, it will be a very big deal. It will be a proud day for the state of Texas.”
Counties across the state have been grappling with improving indigent defense services since the passage of the Fair Defense Act in 2001, which aimed to elevate the quality of representation for people of low means and to assure the parity in resources between prosecution and defense teams essential to a fair trial.
The law, authored by Ellis, mandated that Texas counties enact their own formal processes to ensure prompt counsel appointments, and it founded the Texas Indigent Defense Commission to provide financial and technical support to local governments as they worked to achieve the goal.
Travis County was a trendsetter at that time, said Jim Bethke, executive director of the commission. The county’s criminal state judges in the late 1980s devised a procedure that influenced jurisdictions statewide: a rotating list, or “wheel,” that courts could use to appoint private lawyers to indigent cases, so they could be selected chronologically rather than at their lone discretion.
Its use “promotes a neutral and fair process for distributing appointments among lawyers,” Bethke said. “It does nothing, however, to enhance the quality of the legal services provided by court-appointed lawyers.”
And the county has failed to evolve, defense lawyers and legal experts said, even as other large counties have gradually moved toward public defender systems and managed assigned counsel programs, formal structures that they say do more to address equal representation at public expense.
A questionable arrangement
Travis County court officials have established public defender offices for juvenile and mental health defendants. But its indigent defense services for adults remain an $8 million ad hoc system that handles about 25,000 cases annually — roughly 68 percent of felonies and 46 percent of misdemeanors — and is virtually under control of its 13 state and county judges.
The “wheel” has evolved into an electronic process under the Office of Court Administration, which takes applications from lawyers who wish to receive court-appointed referrals. Staff members screen them for basic requirements and compile their information to place them on the rotating index.
But judges decide who stays on the list and what level of cases they are equipped to handle, an evaluation of now more than 250 attorneys that they say is cursory and happens only once a year. Judges also are still able to make arbitrary appointments from the bench, and they must manage defense counsel fees and funding for experts and investigators.
Handling such duties can negatively impact their relationships with defense lawyers, judges say, and don’t comply with American Bar Association principles — the first of which requires the administration of the process to be independent from the judiciary.
Legal experts, like Ellis, describe the arrangement as “inherently illegal.” Attorneys have their own complaints: inconsistent vouchers and caseloads.
There are no regular measures to review attorney caseloads, while judges have disparate methods for providing compensation and resources, and some decline to pay for more work, defense lawyers said. The result is a treadmill, on which lawyers are pushed to take quick plea agreements rather than taking more time on investigations or going to trial and on which defendants, many of whom are minorities, become trapped in the system, attorneys and legal officials said.
“I have had judges deny me the right to an investigator. I’ve had judges say, ‘Whatever you need,’” defense lawyer Jackie Wood said. “I would hope that one person or one office making the decisions would be better and more consistent than six or seven different personalities.”
A new state model
The plan to create a Travis County Private Defender aims to establish a more centralized and transparent command structure so that one team is making the administrative calls, said Bradley Hargis, president of the Austin Criminal Defense Lawyers Association.
Retired District Judge Mike Lynch drafted the initial proposal shortly before leaving the bench in December 2012, drawing input from other judicial members and another piece of legislation passed by Ellis in 2011, a law authorizing counties to form managed assigned counsel programs.
Small groups of lawyers and court officials have since traveled to examine assigned counsel offices in San Mateo, Calif., home to the first in the country, and in Lubbock, the first county to implement the program in Texas. Hargis said the office in Travis County would take from those designs but would be unique as it would install “more checks and balances.”
The latest plan, which court officials expect to present to county commissioners this month, seeks to create a joint-venture nonprofit between the Austin Bar Association and the Austin Criminal Defense Lawyers Association that would consist of three entities: a board of directors, a review panel of veteran criminal defense lawyers and an oversight committee of court and county officials.
The board would handle fiduciary responsibilities, financial disclosures and attorney applications for the court-appointment wheel, while the review panel would screen petitioners and ultimately decide which attorneys qualify to represent indigent defendants.
“This will create a lot more input from a lot more attorneys, and you also have greater transparency,” Hargis said. “You are not just leaving it all up to one person (or board) who could exercise some bias — whether intentional or not — in making decisions.”
The new office also would develop a mentoring program for lawyers who fall short of meeting standards, and judges would maintain some say in the process through the oversight committee, which would meet quarterly with the board of directors and receive monthly and annual status reports.
Judges are seeking permission from county commissioners to apply for a five-year grant from the state indigent defense commission to help fund the majority of the initiative in its first year.
But the proposal faces opposition from critics who say county officials would still have to spend more than a half a million dollars to create a complicated new system when the old one isn’t broken. Some defense lawyers question the motivations behind the push for change, saying judges are simply looking for a way to trim attorneys who they believe are unqualified from the court-appointment wheel.
But such cuts wouldn’t help those lawyers improve and would only lead to higher caseloads for others who remain on the list, attorneys said.
Others question the ability of their own colleagues to rate attorneys and their work.
“How do they intend to measure the quality of representation?” asked defense lawyer Chantal Eldridge. “Every case is different. Every fact and scenario is different.”
District Judge Julie Kocurek, who serves as the presiding judge over the state criminal courts, said judges are nervous about surrendering most of their control.
“It is uncomfortable because it is something new,” Kocurek said. “But I think, in the long run, Travis County has gotten so big that we have to have a different type of system in order to manage that (indigent defense) fund better. To me, this is all growing pains for our county.”