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House Committee
on
Criminal
Jurisprudence
March 21, 2016
Texas Indigent Defense
Commission
James D. Bethke, Executive Director
Who We Are
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.
OFFICERS:
Honorable Sharon Keller Chair – Presiding Judge, Court of Criminal Appeals
Honorable Olen Underwood Vice-Chair – Presiding Judge, 2nd Administrative
Judicial Region of Texas
EX OFFICIO MEMBERS:
Honorable Sharon Keller Austin, Presiding Judge, Court of Criminal Appeals
Honorable Nathan Hecht Austin, Chief Justice, Supreme Court of Texas
Honorable Sherry Radack Houston, Chief Justice, First Court of Appeals
Honorable Brandon Creighton Conroe, State Senator
Honorable John Whitmire Houston, State Senator
Honorable Abel Herrero Robstown, State Representative
Honorable Andrew Murr Kerrville, State Representative
MEMBERS APPOINTED BY GOVERNOR:
Honorable Olen Underwood Conroe, Presiding Judge,
2nd Administrative Judicial Region of Texas
Honorable Jon Burrows Temple, Bell County Judge
Honorable Linda Rodriguez Hays County
Mr. Anthony Odiorne Burnet, Assistant Public Defender, Regional
Public Defender Office for Capital Cases
Mr. Don Hase Arlington, Attorney, Ball & Hase
What We Do
Our Purpose
Our Grant Program
Our Fiscal and Policy Monitoring Program
Our Innocence Program
To provide financial and technical support to counties to develop andmaintain quality, cost-effective indigent defense systems that meetthe needs of local communities and the requirements of theConstitution and state law.
In FY 2015 $30.9 million awarded to Texas counties.Formula grant awards totaled $24 million (254 Counties).Discretionary grants totaled $6.9 million (18 Counties) .
The Commission monitors each county that receives a grant to ensurestate money is being properly spent and accounted for and to enforcecompliance by the county with the conditions of the grant, as well aswith state and local rules and regulations.
Since 2005 the Commission has provided up to $100,000 annually tothe University of Texas School of Law, the Texas Tech UniversitySchool of Law, the Thurgood Marshall School of Law at TexasSouthern University, and the University of Houston Law Center tooperate innocence clinics. In 2015 the 84th Legislature expandedfunding to include $100,000 per year for two new public law schoolsat the University of North Texas Dallas College of Law and the TexasA&M University School of Law in Fort Worth. This funding hascontributed towards 13 exonerations.
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Agenda
Background and Big Picture:
Pre-Fair Defense Act through the Present
Overview of Basic Appointment Systems
By the Numbers:
Trends, Funding, Caseloads
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Background and Big Picture:
Pre-Fair Defense Act
through the Present
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Gideon vs. Wainwright
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In our adversarial system of criminal justice….
With government “quite properly” spending “vast sums of money to establish machinery to try defendants
accused of crime”.....you need
….. “procedural and substantive safeguard designed to assure fair trials before impartial tribunals in which
defendants stands equal before the law”
“This noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a
lawyer to assist him.”Gideon vs. Wainwright, 373 US 335 (1963)
Long Road to Make Indigent Defense Meaningful
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Gideon vs. Wainwright
Texas Fair Defense Act
1963 2001
2016
15 Years of Implementation
Struggle to translate at state level the “right to counsel” into a meaningful indigent defense system
Pre-Fair Defense Act through Present
Prior to 2002
No state funding or oversight
No reporting requirements on spending or caseloads
No consistent standards regarding attorney training and
experience
Present
No uniformity in local indigent defense appointment practices
Judges’ discretion to select counsel, pay fees and determine
who is indigent fueled appearance of cronyism
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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
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Overview of Basic
Appointment Systems
Four Most Common Types
of Appointment Systems in Texas
1) Assigned Counsel Systems
2) Managed Assigned Counsel Systems
3) Public Defender Systems
4) Contract Defender Systems
Many variations within these basic types
Some systems are a hybrid of two types
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Which Type or System is Best?
• Each system type has unique advantages
and unique risks
• Any type of system can work well
• Any type of system can work poorly
• Most important:– Make the most of the advantages of your system
– Adopt safeguards to avoid the risks
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What is an Assigned Counsel System?
• Most widely used in Texas (~75 percent of cases)
• Sometimes called “ad hoc” systems
• Private attorneys are appointed by the Judiciary from an
appointment list
• Attorneys are appointed to handle individual assigned
cases on rotating “wheel”
• Attorneys compensated as independent contractors
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Potential Advantages of
Assigned Counsel Systems
• Utilizes existing pool of private attorneys
• Lets attorneys combine public and private practice
• Can attract top quality attorneys
• County not responsible for attorney overhead
o But County has to compensate for overhead
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Potential Risks with
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
• Can be refuge for incompetent attorneys
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What is a Managed Assigned Counsel System?
• An option for counties to achieve some of the
benefits of public defender system within an
assigned counsel system
• Defense services are administered by:
o A county department; or,
o Non-profit entity under contract with the county
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Potential Advantages of
Managed Assigned Counsel System
Improved oversight and accountability of defense function:
• Systematic attorney training
• Systematic attorney supervision
• Systematic monitoring performance
• Systematic monitoring of caseloads
• Uses existing pool of qualified attorneys
• Shifts administration of defense function from courts to an defense entity
• Centralized forum for criminal defense lawyers
• Enhances independence of defense function
• Does not grow government significantly/uses private sector to provide direct
client services
• Better ability to apply for State and Federal grants
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Potential Costs/Risks of
Managed Assigned Counsel System
• Some start-up costs
• Costs associated with administration of
program likely more than currently being
provided
• Choosing the right Managing Attorney is
critical.
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What is a Public Defender System (PD)?
• Defense services and representation by:
o A county or state agency
o Non-profit org’n under contract with the county
• Analogous to prosecutor’s office on the defense side
• Attorneys are salaried employees
• Attorneys are full-time defense specialists
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Potential Advantages of
Public Defender Systems
• Predictable costs / easier to budget
• Systematic attorney training
• Systematic attorney supervision
• Systematic monitoring of attorney performance
• Systematic monitoring of attorney caseloads
• Ability to retain experienced attorneys
• Ability to fire less competent attorneys
• Reduced administrative burden on judiciary
• Resource for private bar and a structured voice for system improvement
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Potential Risks with
Public Defender Systems
• Substantial start-up costs
• Difficult to implement/justify in small counties
• A “Bad” Chief Public Defender can cause big problems
• Caseloads can become overwhelming
o Creating disincentive to thorough representation
o Leading to high staff turnover
• Could become politicized
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What is a Contract Defender System?
• Many different variations
o One private attorney or law firm contracts to handle all
cases or a small number of attorneys or firms contract to
handle a large block of cases
• May need a separate system for conflicts
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Potential Advantages of
Contract Defender System
• Low administrative costs
• Costs are predictable / easy to budget
• Uses existing pool of attorneys
• Low startup costs
• Attorneys likely to be defense specialists
• Attorneys may be full-time indigent defense
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Potential Risks of
Contract Defender System
• Can create economic incentive to dispose of cases too quickly
• Economic disincentive too Investigate caseso Try caseso Utilize experts
• Can encourage a low-bid approacho Caseloads may then exceed original projections
• Usually no systematic training
• No systematic supervision
• No systematic monitoring of performance
• No systematic monitoring of caseloads
• Can become subject to favoritism or patronage
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RPDO Evaluation Indicates
Program is Successful
Meets State Bar Capital Defense
Guidelines
Independence from Judicial Influence
More Prompt and More Frequent
Capital Team Appointment
Better Non-Attorney Defense Team
Services
Greater Investment in Mitigation to
Increase Plea Rates to Non-Death
Sentences
Fewer Cases Ending in a Death
Sentence
Lower Average Cost-per-Case
Value for Member Counties
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Assessment of Harris County
Public Defender Office (HCPD)
1. HCPD meets ABA 10 Principles and most TIDC grant objectives.
2. Misdemeanor clients are more likely to be dismissed, less likely to go to
jail if convicted than match group, and on par for rate of re-arrest
following case resolution.
3. Misdemeanor cases take 5.5 hours to dispose, 8.8 hours in cases
where dismissal is the result.
4. In post-conviction cases HCPD receives more dismissals and has
higher reversal rate than Court of Appeals average; the Appellate
Division uniquely supports broader value added.
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By the Numbers:
Trends, Funding, Caseloads
Office of Court Administration Statistics.
According to national statistics, violent crime has been decreasing since 2000.
(http://www2.fbi.gov/ucr/cius2009/offenses/violent_crime/index.html)
Case Filings Declining in Recent Years
From 2003 to 2007 case filings increased, but since 2007, total new cases have fallen by 19% (especially noticeable in misdemeanor cases).
0
100,000
200,000
300,000
400,000
500,000
600,000
700,000
2003 2005 2007 2009 2011 2013 2015
Misdemeanor
Cases Added
Felony Cases
Added
Juvenile
Cases Added
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While Case Filings Have Decreased,
Appointment Rates Have Increased
0%
10%
20%
30%
40%
50%
60%
70%
80%
2003 2005 2007 2009 2011 2013 2015
Felony
Appointment
Rate
Misdemeanor
Appointment
RateOther 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)
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2015 Case Filings and
Attorney Appointment Rates
State of Texas Felony Misdemeanor Total
NEW Cases Added FY15 271,744 503,298 775,042
Cases Paid FY15 193,560 222,408 415,968
Cases Paid / Cases Added
FY1571% 44% 54%
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Texas State Data Center, 2014 Population Projections
Texas Population Projected to Continue to Increase
17% of Texans
below poverty
line - 8th
highest in the
USA
20,000,000
25,000,000
30,000,000
35,000,000
40,000,000
45,000,000
50,000,000
55,000,000
60,000,000
2010 2015 2020 2025 2030 2035 2040 2045 2050
Rate from
2000-2010
One-Half
2000-2010
Rate
No Migration
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Reported Caseload and Payments
Cases appointed
Cases disposed per attorney
Payments reported by counties
Amount paid to each attorney
Over 415,000 cases received
court-appointed counsel
From 1 to 1,353 –
Median of 45 total felony and
misdemeanor cases
To 6,259 attorneys across all counties
From $50 to over $497,000 –
Median of just over $16,000
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Reported Practice-Time Figures
Practice-time reporting as of
February 4, 2016
Median percent of practice-time
devoted to appointed criminal and
juvenile cases across all counties is
about 57 percent
3,708 attorneys completed reports –
out of 6,259 attorneys for whom
counties reported as disposing of cases
and receiving payments
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Indigent Defense Expenditures (in millions) by Fiscal Year
-
7.3
11.6
11.8
14.3
14.3
17.5
21.5
28.4
28.0
33.7
28.3
27.4
44.4
28.6
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
185.5
209.4
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
2001
2002
2003
2004
2005
2006
2007
2008
2009
2010
2011
2012
2013
2014
2015
State Expenditures County Expenditures
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Average Attorney Fees Per Case
FY15
Assigned
Counsel
Public
Defender
Non-Capital Felony $651 $515
Misdemeanor $208 $209
Juvenile $394 $301
Appeal $2,733 $5,580
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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.
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Texas Path to Indigent Defense Caseloads
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National Caseload Experts
Prof. Norman Lefstein
Indiana State University
Adjunct Prof. Steve Hanlon
St. Louis University School of Law
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Weighted Caseload Study
FINAL RESULTS
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Recommended Maximum Caseloads
Felony 128 Cases per year
Misdemeanor 226 Cases per year
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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
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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
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Attorney Caseloads Monitored
Caseload Guidelines are currently being used in:
Travis County Managed Assigned Counsel Program (CAPDS)
Lubbock County Managed Assigned Counsel Program
Harris County Public Defender Office
El Paso County Public Defender Office
Caprock Regional Public Defender Office
Bee, Live Oak, McMullen Regional Public Defender Office
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Peter Drucker
You can only
manage what
you can
measure and
what’s
measured is
improved.
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Smart Defense Web Portal Performance Metrics
Present Requirements/Measures under the Fair Defense Act:
Institute a fair, neutral, and non-discriminatory attorney selection process
Conduct magistrate proceedings promptly
Screen for and determine eligibility pursuant an adopted standard
Appoint counsel promptly for those that qualify
Ensure counsel’s qualifications, ability, and experience match the complexity of the
case
Pay counsel pursuant to the attorney fee schedule adopted in the local plan
Ensure same attorney continuously represents the client until completion of the case.
Require defense counsel to attend relevant continuing legal education
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Other Indigent Defense Performance Metrics
o Court appointed attorneys are provided sufficient time and a confidential space within which to
meet with the client.
o Court appointed attorney’s workload is controlled to permit the rendering of quality
representation.
o There is similarity between a court appointed attorney and a prosecutor with respect to pay
and the court appointed attorney is included as an equal partner in the justice system.
o The court appointed attorney is supervised and systematically reviewed for quality and
efficiency according to nationally and locally adopted standards.
o Is program open and accountable in its operations?
o Does program measure performance?
o Does program keep time records?
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