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Combined June TABLE OF CONTENTS Tuesday, June 2, 2020 Geoffrey Burkhart Biography ............................................................................................. 2 Geoffrey Burkhart Testimony .......................................................................................... 3-7 Geoffrey Burkhart Attachment 1 ................................................................................... 8-32 Geoffrey Burkhart Attachment 2 ................................................................................. 33-55 Douglas Wilson Biography ............................................................................................... 56 Douglas Wilson Testimony.......................................................................................... 57-62 Douglas Wilson Attachment 1 ..................................................................................... 63-75 Douglas Wilson Attachment 2 ..................................................................................... 76-78 Douglas Wilson Attachment 3 ..................................................................................... 79-81 Carlos Martinez Biography ............................................................................................... 82 Carlos Martinez Testimony.......................................................................................... 83-87 Carlos Martinez Attachment ...................................................................................... 88-184 Mark Stephens Biography............................................................................................... 185 Mark Stephens Testimony ....................................................................................... 186-195 Geoffrey Burkhart Executive Director, Texas Indigent Defense Commission Mr. Burkhart comes to the Texas Indigent Defense Commission from the American Bar Association (ABA), where he served as the first Deputy Director and Counsel to the ABA Center for Innovation. He also helped lead the ABA’s indigent defense reform efforts as Project Director and Counsel to the ABA Standing Committee on Legal Aid and Indigent Defendants. Mr. Burkhart previously worked as an Assistant Appellate Defender at the Illinois Office of the State Appellate Defender. There, he represented clients in homicide, sexual assault, and other serious felony cases. He also worked at a law firm, served as a law clerk to Justice James Epstein of the Illinois Appellate Court, and taught Appellate Advocacy and Judicial & Scholarly Writing at Loyola University Chicago School of Law. Born and raised in Kentucky, Mr. Burkhart achieved the rank of Eagle Scout and earned his bachelor’s degree at Xavier University, his master’s degree at Loyola University Chicago, and his juris doctor at DePaul University College of Law, where he served as Editor in Chief of the DePaul Law Review. He frequently writes and speaks about criminal justice. President’s Commission on Law Enforcement and the Administration of Justice Panel: The Role of Public Defenders June 2, 2020 Written Testimony of Geoffrey Burkhart, Executive Director, Texas Indigent Defense Commission I am honored to testify before this Commission. My testimony will focus on three things: I. Why America Cares about Public Defense II. What’s Wrong with American Public Defense III. What This Commission Can Do If I or the Texas Indigent Defense Commission can be of any further use to this body, please let me know. I. Why America Cares about Public Defense Americans care about public defense because it affects them directly: half of America has seen a family member incarcerated, and most relied on public defense.1 If none of your family has been incarcerated, consider this: when your spouse is ill, your first question isn’t about MRIs, billing software, or prescriptions—it is, does she have a good doctor? Similarly, when your spouse is arrested, your first question isn’t about search and seizure, statutes of limitations, or the rule against hearsay— it is, does she have a good attorney? Ultimately, public defense affects all Americans, because it shapes things we care deeply about: public safety, fairness, and taxpayer dollars. 1 Christal Hayes, USA Today, 'This isn't just numbers – but lives': Half of Americans have family members who've been incarcerated, usatoday.com/story/news/politics/2018/12/06/half-americans- have-family-who-have-been-jailed-new-study-shows/2206521002/; see also BJS Special Report: Defense Counsel in Criminal Cases (2000), bjs.gov/content/pub/pdf/dccc.pdf (82% of state-level felony defendants are were represented by public defense in 75 largest counties). See also Americans’ Views on Public Defenders and the Right to Counsel: National Public Opinion Survey Conducted for the Right to Counsel National Campaign (2017), rtcnationalcampaign.org/core-messaging. Page 1 of 5 A. Public Safety Public defenders help ensure public safety by interrupting the cycle of recidivism. First, public defenders intervene in cases early to identify persons who can be safely diverted from jail.2 Keeping low-risk persons out of jail greatly lowers recidivism rates.3 Public defenders also find alternatives to incarceration. As Attorney General Barr observes, our criminal justice system isn’t the solution to drug addiction, mental illness, or homelessness.4 Yet our jails hold more persons with mental health and substance abuse issues than any other public institution.5 In Texas alone, 34% of inmates have a mental health need, and the majority have substance abuse problems.6 Public defenders connect clients with mental health, substance abuse, and homelessness services, resolving underlying causes of criminality and keeping the public safe.7 Finally, public defenders prevent wrongful conviction and disproportionate sentencing that can lead not only to lifelong criminal records, fines and fees, and collateral consequences, but also to greater recidivism.8 B. Fairness Public defenders are also key to a fair justice system. The right to an attorney is a threshold right that helps protect all other constitutional rights. Once appointed, public defenders raise constitutional issues, argue evidentiary matters, and ensure that the government meets its burden, all while building public trust in our system’s fairness. 2 See Attachment, Public Defender Primer: Research on Public Defenders (Kaufman County, TX, defenders reduced jail time by 113 days in felonies). 3 The Hidden Costs of Pretrial Detention (2013), https://craftmediabucket.s3.amazonaws.com/uploads/PDFs/LJAF_Report_hidden-costs_FNL.pdf (“When held 2-3 days, low-risk defendants are almost 40 percent more likely to commit new crimes before trial than equivalent defendants held no more than 24 hours.”) 4 Attorney General William Barr, Implementation Memorandum(2020), https://www.justice.gov/ag/page/file/1236906/download. 5 https://www.texasstateofmind.org/focus/smart-justice/ 6 See Meadows Mental Health Policy Institute (2020), https://www.texasstateofmind.org/focus/smart- justice/ 7 Texas Mental Health Defender Programs (2018), http://www.tidc.texas.gov/media/58014/tidc_mhdefenders_2018.pdf (Bexar County, Texas defenders increased pretrial release and bond compliance rates for defendants with mental illness). 8 U.S. Commission on Civil Rights, Collateral Consequences: The Crossroads of Punishment, Redemption, and the Effects on Communities (2019), https://www.usccr.gov/pubs/2019/06-13- Collateral-Consequences.pdf; See also Attachment, Public Defender Primer: Research on Public Defenders (Harris County, TX, defenders’ clients with mental illness were five times as likely to have their cases dismissed). Page 2 of 5 Public defenders also help ensure that neither money nor influence determines a case’s outcome and that all persons are treated equally under the law. When we can show that procedures and outcomes are fair, public trust grows commensurately.9 C. Taxpayer Dollars Public defense is money well spent. Public defenders can reduce incarceration costs while helping to ensure public safety.10 In New York, for instance, researchers found that holistic public defense prevented 1 million days of incarceration and saved taxpayers $160 million, all without endangering public safety.11 Likewise, in Fort Bend, Texas, public defenders saved over $2,200 per case in jail costs.12 These are not outliers. Study after study has shown public defenders deliver jail bed savings, prison bed savings, and more efficient justice administration.13 Put simply, upfront investment can save taxpayer dollars downstream. II. What’s Wrong with American Public Defense As Attorney General Barr observes, public trust in our justice system has waned.14 By failing to effectively represent their clients, underfunded, undertrained, or overloaded public defenders often add to public distrust. But public defense faces a far more basic problem: more than half of American counties don’t have a public defender.15 Instead, they rely on “non-systems,” in which unsupervised attorneys take cases on an ad hoc basis, often for a flat fee. 16 These models offer no structure, no supervision, and little incentive to provide effective representation.17 9 Tom R. Tyler, Why People Obey the Law (2006). See Attachment, Public Defender Primer: Research on Public Defenders (85% of Fort Bend County, TX, defenders’ clients were satisfied with their representation). 10 James M. Anderson, Maya Buenaventura, and Paul Heaton, Holistic Representation: An Innovative Approach to Defending Poor Clients Can Reduce Incarceration
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