How Lubbock became the model for indigent defense in Texas
Throughout the year as we have written about indigent defense issues in Bexar County, one place was mentioned again and again as a shining light. Lubbock.
Yes, Lubbock. Where cotton fields stretch to the horizon. Where the wind sweeps across the High Plains. Where the sky is so big it lifts the spirits. Home to the Red Raiders of Texas Tech and Buddy Holly (R.I.P.) and the most sincere staples of Texas civility and good manners. Yes, sir. Yes, ma’am. Please. Thank you.
Deeply conservative Lubbock is also on the cutting edge of indigent defense. It’s a system that is run through a nonprofit, the Lubbock Private Defender Office. Call it innovative, forward looking, cutting edge or just plain old constitutional. Officials here only ask that no one calls it progressive.
So, of course, we had to visit. We had to see how this “innovative” system works and if it could be replicated here in Bexar County. The short answer is: Bexar County officials and judges should be booking their flights. Lubbock County simply does indigent defense better. It spends more money than Bexar County, but that’s hardly surprising since almost everyone does. And in return it gets real oversight of defense attorneys, almost certainly better defense outcomes, and an appointment process independent of the judiciary.
“It works great,” said Patrick S. Metze, a law professor and director of criminal defense clinics at Texas Tech University School of Law. “I have been doing this a long time, and I have seen in many places the way poor people get representation, and this system seems to be better than any others that I have ever seen as far as it being run fairly and consistently.”
What is this system?
In Bexar County when a poor person is arrested, he or she is appointed an attorney. Usually a private one. The appointment comes from a “wheel” where attorneys are chosen arbitrarily, but judges can also make appointments. From there … it’s anyone’s guess. No one monitors caseloads or outcomes. Attorneys can make contributions to judges who may have appointed them to cases. Sometimes attorneys don’t see their clients until guilty pleas are rendered — just to get out of jail. We’ve chronicled these issues, and others, in our “Unequal Justice” series.
In Lubbock, things are different. The Lubbock Private Defender Office makes appointments to about 70 private attorneys. These attorneys are required to interview clients within seven days. The private defender office monitors caseloads, outcomes and billing. It also fields complaints. It’s also a resource center. The office includes a team of case managers to help with mental health cases. The office provides continuing legal education and mentoring. It contracts with investigators and maintains a transcript bank from trials across the state. There is also a bank of briefs, motions and letters.
“This can become a state model and there is an opportunity for this to be also a national model,” said Jim Bethke, head of the Lubbock Private Defender Office.
Bethke is energetic and talkative, and a Texas Tech law alum who found his way back to the High Plains after a long career in Austin. He’s 13 months into this stint. But before this job, he spent years running what is now called the Texas Indigent Defense Commission. In that role, he helped create the Bexar County Public Defender’s Office.
He often tells of trying to pitch a grant to create a similar public defender’s office in Lubbock and getting run out of town. A public defender meant more government. And the private bar didn’t want to lose any business. So, he returned with an idea for a private model — one based on programs in San Mateo, Calif., and Massachusetts— and that suited everyone just fine.
With state grant funding, the Lubbock Special Needs Defenders’ Office was born in 2008 specifically to handle mental health cases. It was a nonprofit under the Lubbock Criminal Defense Lawyers Association.
People wanted to start small and with the toughest cases. It worked so well, the office expanded to all noncapital cases in 2012 and adopted a new name. If things weren’t working, Lubbock’s judiciary could kill the program and do appointments again. But “there is no way you could give it back to them now,” said Dwight McDonald, an attorney and fellow with the law school at Texas Tech.
Why? Because it freed the judges from the controversy that comes with making appointments and taking contributions. They were also free from the administrative hassle of approving attorney vouchers and expert fees.
All year, stories have broken across Texas about eye-popping caseloads and attorneys fees — $460,000 for one attorney in Collin County, similar issues in Harris County’s juvenile courts. Not in Lubbock. No one is making six figures on appointed cases there (three attorneys in Bexar did in 2017).
“It’s not even possible with our system,” District Judge William Eichman said. “It’s kind of the best of both worlds. We have some independence, but it’s still under our supervision, and you have the private attorneys doing the work.”
Independence and monitoring came up again and again as the hallmarks of Lubbock’s indigent defense success. But another hallmark is an acute awareness that mass incarceration is intertwined with mental health. The Lubbock Private Defender Office began with mental health cases, and the Lubbock County Detention Center has a number of mental health programs run by StarCare Specialty Health System, the behavioral health provider for the region.
“We’re the one place that can’t say ‘No,’” Sheriff Kelly Rowe said.
The jail uses open booking and follows a direct supervision model that gives inmates a certain amount of freedom. The basic rule is if you treat someone like an adult, they will act like an adult. And we saw this practice in action as inmates walked freely down halls or watched ESPN while they waited for magistration. When one inmate became agitated and distraught, detention officers spoke calmly. And the result was a safe and orderly jail.
We were wowed by a special detention pod for inmates with mental health diagnoses.
These inmates receive medication and various forms of support and education as their trials progress. In the old days, such inmates were the toughest to control. When we visited, they were preparing for a Christmas talent show.
This is all behavioral health programming, but the private defender office is a key part of this equation. Its case managers are not therapists and don’t provide treatment, but they do provide crucial communication between the inmates, their attorneys and the mental health providers. The case managers check on defendants at least once a month. They compile mental health history for attorneys and provide case updates to defendants. They field calls from therapists.
In short, they spare attorneys a lot of grunt work, save taxpayers money and keep the defendants informed of their cases.
“I am not certain that it’s what the private defender office does specifically that equates to better outcomes for people,” said Beth Lawson, CEO of StarCare. “It’s what the private defender office does that leads people to be able to have access to treatment that provides better outcomes for them.”
It made all the difference for James Casias, 30, a Lubbock native who was diagnosed with bipolar disorder with psychotic features. He was working as a mechanical engineer in Dallas when he said delusional symptoms took hold in 2012, spurring a slew of arrests over the years, including attempting to run over a Lubbock deputy. All his crimes were driven by voices, he said.
His last arrest, in 2017, was a complicated break-in involving multiple properties, delusions and guns. He said his attorney and case manager built a “scaffolding” around him that allowed him to receive treatment and recover. He’s on 10 years of probation and spent eight months in rehab — but he is not in jail or prison.
He lives with his family and works at a restaurant, and is applying for mechanical engineering jobs again.
“I work at a restaurant,” he said. “I don’t make a lot. But I get to go to my house, play video games, drink my own coffee, go to the mall.”
Another defendant, Charles “Fuzzy” Lobban, 58, practically broke into tears talking about the representation he received for criminal mischief, carrying a concealed deadly weapon and disorderly conduct charges. He had been working at a church late one night in the summer of 2017 when it was struck by lightning, which led him to be staggering around disoriented with a kitchen knife banging on doors. He was looking for help, but he scared people. Jail time would have made him homeless and separated him from his adult son.
“They touched my heart,” he said of his attorneys who had the charges dismissed. “Not many people care for somebody like me.”
Could this system be replicated in Bexar? Absolutely, said Geoffrey Burkhart, executive director of the Texas Indigent Defense Commission.
A managed-assigned-counsel program is “far superior,” he said, because of the resources and oversight it brings. But he and others cautioned it shouldn’t be viewed as a replacement for the Bexar County Public Defender’s Office. That would be the wrong conclusion to draw.
A metro area the size of San Antonio is best served by a full-fledged public defender’s office and a managed-assigned-counsel program, Burkhart said.
This is partly so the two entities could compete against one another but also because managed-assigned-counsel programs still lack direct supervision.
The sad truth is Bexar County is cheap on indigent defense and Lubbock is not. Bexar spends $6 per capita on indigent defense — “a shockingly low amount,” Burkhart said. No doubt this is fueled by a $180 flat fee for misdemeanors that disincentives effort and work.
In Texas, no beacon of big spending, the average for indigent defense spending is $9 per capita. And in Lubbock, it’s $14 per capita, but with oversight and monitoring.
“Bexar County just needs to step up to the plate,” Bethke said. “Six dollars per capita? Come on.”
That first step should be taking a trip to Bethke’s shop to see how things are done. To see firsthand how Lubbock built such a forward-thinking and innovative system for criminal justice.