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Bexar needs to study indigent defense system

September 22, 2018

Texas Organizing Project recently descended on Bexar County Commissioners Court with a simple plea: Please study the indigent defense system here. Please study it, and then reform it. Please address the inherent inequalities in a broken system that allows poor defendants to languish in jail, then often plead guilty to secure their freedom, regardless of innocence.

We second this plea for an indigent defense study. One that can take stock of the system’s inherent inequalities — many of which are as clear as day — and then provide a path for meaningful reform.

This is a system in which judges receive political contributions from defense attorneys. Those same judges also appoint defense attorneys to cases. They also hear cases from influential retained attorneys who don’t take appointments but can cut big checks.

It’s a system that lacks accountability over court-appointed attorneys. There is no oversight of caseloads and no monitoring of outcomes. It’s a system with a depressingly low bar to practice in misdemeanor courts. It’s a system that lacks parity between defense and prosecution.

All of this needs to change, and an independent study would be an important part of any reform. Geoffrey Burkhart, executive director of the Texas Indigent Defense Commission, said his agency frequently partners with counties and helps fund studies to address indigent defense issues. These include studies in Harris, Wichita and El Paso counties.

There are many ways to approach such a study here — which might cost $200,000, split between the state and Bexar — but the aim must be to bring Bexar County into compliance with the American Bar Association’s Ten Principles of a Public Defense Delivery System.

The first principle: “The public defense function, including the selection, funding and payment of defense counsel is independent.”

How can that happen in Bexar County when judges receive campaign contributions from the lawyers who practice before them? Even if quid pro quo doesn’t occur, this can’t be anyone’s idea of “independent.”

The second principle: “Where the caseload is sufficiently high, the public defense delivery system consists of both a defender office and the active participation of the private bar.”

There were nearly 40,000 indigent defense cases in Bexar County in fiscal 2017, but the public defender’s office is woefully small. The focus is mostly on mental health cases, and the office is barred from practicing in family violence courts, all felony courts except two and Judge Wayne Christian’s misdemeanor court.

The fifth principle: “Defense counsel’s workload is controlled to permit the rendering of quality representation.”

Our review of indigent caseloads for fiscal 2017 found three attorneys who handled more than 500 cases and numerous others who exceeded best practices for caseloads. Bear in mind, these numbers don’t include retained clients.

The eighth principle: “There is parity between defense counsel and the prosecution with respect to resources and defense counsel is included as an equal partner in the justice system.”

In fiscal 2017, Bexar spent $33 million on prosecution. But on indigent defense it spent about $13 million on court-appointed attorneys and about $1.1 million on a small public defender’s office. Moreover, the flat-fee pay structure for misdemeanors incentivizes a quick plea rather than a vigorous defense.

The ninth principle: “Defense counsel is provided with and required to attend continuing legal education.”

That’s happening in name only at the misdemeanor level. All that’s needed is a law degree and six hours of continuing legal education. That’s not good enough. Since many of the attorneys handling misdemeanors are new to law, there should be mentoring, monitoring and additional hours of legal education, as well as a first-year test to stay on the appointment wheel.

The 10th principle: “Defense counsel is supervised and systematically reviewed for quality and efficiency according to nationally and locally adopted standards.”

We believe this can only be achieved by shifting to a managed-assigned counsel program similar to the one in Lubbock County. Such a program would maintain the private bar but also monitor it. A managed-assigned counsel would compete with a more robust public defender’s office. It could serve as a clearinghouse for continuing legal education and resources.

Bexar County has taken meaningful steps toward improving indigent defense: raising the pay for private attorneys, providing representation for defendants at bail hearings and instituting bond review hearings to ensure no one languishes in jail for poverty. But much work remains to overhaul such a flawed and conflicted system that lacks accountability.

A study is an essential part of reform.

This editorial is part of the Unequal Justice series, which explores the inequities in Bexar County’s criminal justice system and how they can be fixed.

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