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FAIR DEFENSE REPORT B b THE FAIR DEFENSE REPORT b ANALYSIS OF INDIGENT DEFENSE PRACTICES IN TEXAS A REFERENCE REPORT BY THE TEXAS APPLESEED FAIR DEFENSE PROJECT DECEMBER 2000 b THE FAIR DEFENSE REPORT b ANALYSIS OF INDIGENT DEFENSE PRACTICES IN TEXAS A REFERENCE REPORT BY THE TEXAS APPLESEED FAIR DEFENSE PROJECT DECEMBER 2000 TEXAS APPLESEED is a nonprofit, nonpartisan public interest law center organized to build social and economic fairness in Texas by providing an effective voice for individuals and groups that otherwise are unable to obtain adequate representation in the legal process. Texas Appleseed works through attorneys and community leaders to achieve systemic improvements that promote the equal administration of justice, ensure the fair allocation of public resources, and advance the interests of social, economic and political equity. Gregory Huffman, Administrative Chair Annette LoVoi, Executive Director Thompson & Knight, P.C.*, Dallas J. Chrys Dougherty, Administrative Vice Chair Bill Beardall, Legal Director Graves, Dougherty, Hearon & Moody, P.C.*, Austin Allan Van Fleet, Administrative Vice Chair Dominic Gonzales, Community Vinson & Elkins, LLP.*, Houston Involvement Director *affiliations listed for purpose of identification TEXAS APPLESEED 512 E. Riverside Drive, Suite 212 Austin, Texas 78704 tel. (512) 804-1633 fax (512) 804-1634 www.appleseeds.net/tx © 2000, Texas Appleseed. All rights reserved. Any reproduction of the material herein must credit Texas Appleseed. The Fair Defense Report is available for free from Texas Appleseed at www.appleseeds.net/tx This report and the analysis of indigent defense systems in Texas being conducted by the Texas Appleseed Fair Defense Project are supported by a grant from the Center on Crime, Communities and Culture and the Program on Law & Society of the Open Society Institute. Additional generous support has been provided by The Arca Foundation, the Hogg Foundation for Mental Health, the National Mental Health Association, the Public Welfare Foundation, the Southern Poverty Law Center, the State Commissions Project (a project of the American Bar Association Bar Information Program and the U.S. Department of Justice, Bureau of Justice Assistance), and the Appleseed Foundation. Special thanks are also due to the Texas Appleseed officers and board of directors who have given their time and legal expertise to the project. TABLE OF CONTENTS About This Report The Movement for Indigent Defense Improvement In Texas and the Nation.............. 1 Why This Research By the Fair Defense Project Was Necessary....................... 3 Overall Methodology ......................................................... 4 Table: Counties in the On-Site Research Sample ................................... 5 Part I Indigent Defense Practices in Non-Capital Felonies and Misdemeanors CHAPTER 1: INTRODUCTION ............................................... 9 Methodology for Research on Representation in Non-Capital Felonies and Misdemeanors ................................... 10 CHAPTER 2: THE PROVISION OF INDIGENT DEFENSE SERVICES IN TEXAS...... 12 A. Introduction ....................................................... 12 B. Texas Has No Centralized Source for Indigent Defense Data................. 13 C. Overview of the Sample Counties’ Indigent Defense Systems ................ 15 1. Assigned Counsel Programs ..................................... 15 2. “Buy-Out” or “Opt-Out” Plans .................................. 16 3. Public Defender Programs ...................................... 17 4. Contract Defender Programs..................................... 19 D. Defense Counsel’s Independence from the Judge .......................... 21 E. Texas Court Structure’s Effect on Indigent Defense ........................ 22 F. Qualifications for a Lawyer to Represent Indigent Criminal Defendants ......... 24 G. Appointment of Counsel Process ....................................... 25 1. Indigency Determination........................................ 25 2. Counsel Not Appointed for Those Out on Bond ..................... 26 3. Uncounseled Guilty Pleas ....................................... 28 4. Timing of Appointment of Counsel ............................... 29 5. No Pre-indictment Counsel for Those Felony Defendants Out on Bond ... 31 H. Role of Pre-trial Services Agencies..................................... 31 I. Case Processing and Early Entry of Counsel for Defendants .................. 32 J. Examining Trials ................................................... 33 K. Trial Rate......................................................... 33 L. Funding for Indigent Defense Services .................................. 34 1. Low Compensation for Court-Appointed Counsel .................... 35 2. Investigators and Experts ....................................... 36 3. Pressure From County Commissioners to Cap Costs .................. 37 M.. Imbalance of Resources for Prosecution and Defense ...................... 38 N. Attorney Training Opportunities ....................................... 38 O. Issues Related to Texas’ Diverse Population .............................. 39 P. Immigration Consequences of Criminal Convictions ........................ 40 Q. Problems Unique to Rural Areas....................................... 41 R. Case-Tracking Technology Underutilized ................................ 42 CHAPTER 3: FINDINGS ON INDIGENT DEFENSE REPRESENTATION IN NON-CAPITAL FELONIES AND MISDEMEANORS ............... 43 1. There is a complete absence of uniformity in standards and quality of representation among the indigent defense systems in the 23 Texas counties we studied......................................................... 43 2. Lack of judicial accountability is a major problem in most of Texas’ indigent defense systems.................................................. 43 3. Texas counties are not accountable for the quality or structure of their indigent defense systems.................................................. 43 4. In most of Texas’ indigent defense systems, there are few mechanisms to guarantee that defense lawyers are consistently held accountable for the quality of representation they provide to indigent defendants. ..................... 43 5. Lack of consistency and accountability result in wide and unjustifiable disparities in the treatment received by indigent defendants and their defense counsel, from county to county and court to court. .................................. 43 6. The wide and uncontrolled discretion given to judges over attorney selection and compensation at the very least creates the potential for conflicts of interest and the appearance of conflicts of interest. .................................. 44 7. The majority of judges we spoke with firmly believe that judges should have the exclusive authority to select attorneys for appointment to individual cases and to determine their compensation....................................... 44 8. District and county courts in Travis County and district courts in Denton County have addressed the problem of attorney selection in a way which tends to both preserve the defense counsel’s independence from the judge and allow for judicial supervision of attorney qualifications................................. 44 9. Delay in appointing counsel soon after arrest is a pervasive and serious problem in a number of counties we visited, particularly in more rural counties. ....... 45 10. Some defendants are urged to forego counsel. .......................... 45 11. The process for setting the indigent defense budget varies widely from county to county and is often characterized as a tug of war between the judges and the county commissioners courts. ...................................... 45 12 A 1999 survey of county indigent defense expenditures by the Office of Court Administration (OCA) provides the basis for a reasonable estimate of the cost of indigent defense in the state. ....................................... 46 13. Judges in some counties have adopted local rules concerning indigent defense that exceed the requirements of the Texas Constitution or Texas Code of Criminal Procedure. ..................................................... 46 14. Major problems were found surrounding requests for investigators or expert witnesses....................................................... 47 15. Based upon the above OCA data, the cost per capita for indigent defense in Texas for FY 1999 is approximately $4.65, placing Texas near the bottom level of funding for indigent defense in all 50 states. ........................... 47 16. None of the 23 counties we visited provide sufficient funds to assure quality representation to all indigent defendants. ............................. 47 17 The vast majority of county officials, judges, defense counsel and court administrators agreed that state funding is acutely needed to supplement county indigent defense funding. .......................................... 48 18. There is an imbalance of resources between prosecution and indigent defense in Texas.......................................................... 48 19. Texas counties rely overwhelmingly on ad hoc assigned counsel systems and there are very few public defender programs................................ 48 20. Although there is considerable interest in many parts of the state in greater use of public defender programs, there are reservations about the logistics of creating additional public defender offices.................................... 48 21. In some counties,
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