Gideon Alert: Harris County TX struggles with independence in seeking state funds

BY David Carroll on Wednesday, June 9, 2010 at 12:53 PM

Former Federal Bureau of Investigations Director William Sessions and Texas Court of Criminal Appeals Judge Charlie Baird strongly back the need for judges to be out of the business of overseeing indigent defense in an opinion piece in the Houston Chronicle (June 9, 2010).  Judges Sessions and Baird state, “It is exceedingly difficult for defense counsel to always be vigorous advocates on behalf of their indigent clients when their caseloads are too heavy and their appointment, compensation, resources and continued employment depend primarily upon satisfying judges or elected officials whose goals may not be to ensure effective legal representation, but rather to cut costs.”

William Sessions is an Honorary Co-Chair of the National Right to Counsel Committee -- a bipartisan committee of independent experts, representing all segments of America’s justice systems including judges, prosecutors, victims’ rights advocates, academicians, and others.  Their report, Justice Denied: America’s Continuing Neglect of Our Constitutional Right to Counsel, exposes the systemic deficiencies that negatively impact America’s public defense crisis, including undue interference by the judiciary in much of the country.

The op-ed speaks directly to the Commissioners of Harris County (Houston) who are seeking grant funds from the Texas Task Force on Indigent Defense to establish the first-ever public defender office in the county.  Harris County is the most populous county in America that does not have a staffed public defender office.  The American Bar Association’s Ten Principles of a Public Defense Delivery System states that, wherever the caseload is “sufficiently high,” a delivery system should include a staffed office. 

The push for a public defender office has steadily gained momentum since a series of reports by KHOU-TV and the Houston Chronicle were published in the spring of 2009.  The reports highlighted numerous examples of attorneys carrying too many cases without proper supervision.  For example, in 2008, one attorney earned $375,350 and carried a caseload that was 265.7 percent above national standards (391 felonies; 20 misdemeanors).  In the eight year period reviewed, that same attorney handled 2,247 felonies with no record of having been paid for an appeal in a single case. 

Harris County is on the “brink of not receiving that money,” in part, because moving to a public defender model without ensuring proper independence will not make a fundamental difference in guaranteeing either effective representation or efficient use of limited taxpayer resources.

Such sentiments are especially pertinent as the El Paso Times is reporting that a County Judge there announced he has lost faith in the chief public defender and called for her possible termination.  Independence of the defense function is necessary even when a judge believes his or her influence is in the best interest of clients – as depicted in the story.  As the United States Supreme Court said over 80 years ago in the case of the Scottsboro Boys (Powell v. Alabama):  “[H]ow can a judge, whose functions are purely judicial, effectively discharge the obligations of counsel for the accused?  He can and should see to it that, in the proceedings before the court, the accused shall be dealt with justly and fairly.  He cannot investigate the facts, advise and direct the defense, or participate in those necessary conferences between counsel and accused which sometimes partake of the inviolable character of the confessional.”

Without independence in Harris County, the Task Force on Indigent Defense should consider funding more viable alternatives.  For example, the Houston Chronicle also is reporting that the Task Force is currently considering a $27.7 million grant to expand the West Texas Regional Public Defender for Capital Cases to a staff of 88 lawyers in ten offices to cover all counties with populations less than 300,000 (240 of the state’s 254 counties).