Improving Indigent Defense: Evaluation of the Harris County Public Defender Tony Fabelo, Ph.D. Carl...

Improving Indigent Defense: Evaluation of the Harris County Public Defender

Tony Fabelo, Ph.D.Carl ReynoldsJessy Tyler

Justice Center, Research Division Austin, Texas

October 2013

Council of State Governments Justice Center | 2

Justice Center of the Council of State Governments

• National non-profit, non-partisan membership association of state government officials

• Engages members of all three branches of state government

• Justice Center provides practical, nonpartisan advice informed by the best available evidence


Council of State Governments (CSG)


Texas Fair Defense Act Requirements and Metrics

Institute a fair, neutral, and non-discriminatory attorney selection process

Conduct magistrate proceedings promptly

Screen for and determine eligibility pursuant an adopted standard

Appoint counsel promptly for those that qualify

Ensure counsel’s qualifications, ability, and experience match the complexity of the case

Pay counsel pursuant to the attorney fee schedule adopted in the local plan

Ensure same attorney continuously represents the client until completion of the case

Require defense counsel to attend relevant continuing legal education

Independence and Fairness

Promptness in Appointments

Qualifications and Quality


Interim Reports 2012-2013


Final Report September 2013

The PD Office Add Significant Value to Harris County

PD produces better defense outcomes than assigned counsel for similar cases

tracked in study

PD provides previously unavailable defense services such as training,

mentoring and advice

Office operations meets national quality principles

PD adds a defense perspective to systemic planning discussion


Overview

Process and Quality Review

Outcomes

Recommendations


Independence

HC Public Defender Board

Convene regularly, seem engaged and supportive

Adopted appropriate legal and staff job descriptions

Hired experienced public defender to head office

Office became operational in a timely manner

Sept. 1, 2010HC Public Defender Board Created

Dec. 6, 2010Chief Public Defender Alex Bunin First Day

Jan. 31, 2011Office Opened

Dec. 1, 2011Office Fully Operational


Structure of PD Office

Number of attorneys = 37

Fully staffed operational budget of approximately $8.1 million in 2013

Chief Public Defender

Investigators (3)

Division Chief (1)

Attorneys (11) Attorneys (10)

Division Chief (1)

Investigator (1)

Division Chief (1)

Attorneys (7)

Case Manager (1)

Case Clerk (1)

Receptionist (1)

HR Coordinator (1)

Administrative Officer (1)

Administrative Assistant (1)

Legal & Policy Analyst (1)

IT Admin (1)

Systems Tech (1)

Appellate Division Juvenile Division Administration

Special Counsel (1)

Attorneys (4)

Social Workers (3)

Mental Health Division

Investigator (1)

Felony Trial Division


Quality Controls

Parity with District Attorney’s Salaries

Salary maximum consistent with DA office

Experience and Training

Office following State Bar’s Performance Guidelines for

Non-Capital Criminal Defense Representation

Continuous representation of cases

Office Standards

Performance and personnel evaluation protocols

Case Management System

Computerized records

Ability to track time spend on cases to calculate

workloads


*HCPD represents mental health misdemeanors, which have an NAC caseload standard of 350 per attorney. The HCPD takes on every case with meeting selection criteria, so there are no cases of this type going to the appointed counsel.

Monitoring Workload is a Key to Quality

Maximum Annual Caseload per National Standards

Felony Cases

150

Juvenile Cases

200

MH Misdemeanor Cases

350

Appellate Cases

25


Felony Workload in Assigned Counsel System Significantly Higher than PD Office

The figure below shows the number of cases that were paid in the Harris County felony assigned counsel system, for 255 attorneys and 20,847 cases, with a

demarcation showing the National Advisory Committee (“NAC”) standard of 150 cases


Workload Standards Are Not in Place for Assigned Counsel System

For felony cases 45% of the assigned counsel caseloads exceeds the National Advisory Commission (NAC) “standard” of 150

felonies, which does not account for private cases

For misdemeanors the top 10 percent of attorneys received over 452 cases in a year (with an average of 632 and the highest at

952 cases) exceeding the national standard of 400

For juvenile cases, twelve attorneys had more than the NAC standard of 200 juvenile cases, with an average of 327 cases per

attorney, which does not account for CPS cases


PD Investigation Support Significant and Impactful

Expenditures on Investigation Time

FY 2012

PD Office$534,174

3,950 Cases$135 per case

Assigned Counsel System$874,638

67,530 Cases $13 per case

Proportion of Investigator Time by Outcomes in Felony Cases

More investigation time relates to ability to dismiss or no bill a case

Misd35,529 Cases22¢ per case

Felony24,578 Cases$34 per case

Juvenile4,723 Cases

$4.21 per case


PD Office Handling More Serious Felony Cases

HCPD is defending a relatively higher

proportion of aggravated felonies and sexual abuse

of child

HCPD All Filed Cases in Harris County

Proportion Represented by

HCPD

Aggravated Assault 435 6,159 7%

Aggravated Robbery 354 3,543 10%

Auto Theft 0 1,092 0%

Burglary 336 4,108 8%

Drug Possession 726 14,068 5%

Drug Sale 239 4,009 6%

DWI 136 2,687 5%

Family Violence Assault 210 3,422 6%

Homicide 12 117 10%

Murder 53 281 19%

Other 943 14,485 7%

Sexual Assault Child 175 1,525 11%

Sexual Asssault Adult 55 868 6%

Theft 440 9,042 5%

Total 4,114 65,406 6%

19%Of new murder filings were assigned to the HCPD between October 2011

and July 2013


PD Handling “High Utilizer” MH Cases

Algorithm Selection of Most Severe/High Utilizers for HCPD

Appointment

(a) A diagnosis of schizophrenia, bipolar disorder, or major depression, or, (b) having been prescribed psychoactive medications in the current period of

incarceration, or in a past episode; or (c) having been adjudicated incompetent in

the past, or (d) being a ward of the county, i.e. adjudicated incapacitated, or (e)

housed on the mental health unit within the jail.

MH Volume in Harris County Jail

August 2012 to September 201310,413 with “special needs sheet”

HCPD Appointed Lawyer1,401


Overview


Outcomes

Recommendations


Comparative Analysis of Client Case Outcomes

MH Misdemeanor Clients

Cases Met MH Selection Algorithm

OutcomesMH Specialized Counsel

28 Clientsvs.

PD MH Division 354 Clients

vs.Regular Assigned Counsel

120 Clients

Felony Clients

Cases Match Along Offense and Demographics Variables

OutcomesPD Counsel

1,431 Clientsvs.

Assigned Counsel1,539 Clients

vs.Private Counsel

1,632 Clients

No comparison was possible for juvenile cases due to lack of access to needed data


Outcome Analysis for MH Misdemeanors

Misdemeanor dismissals were five times more likely for HCPD clients than for a matched group of similar defendants

with assigned counsel

HCPD Assigned Counsel

27% 6%

MH Trained Assigned Counsel

7%


Outcome Analysis for Felony Clients

Felony HCPD counsel achieved for clients a greater proportion of dismissals, deferred sentences, and acquittals,

and a smaller proportion of guilty, than assigned counsel

HCPD Assigned Counsel

17% 11%Dismissals

21% 17%Deferred

0.3% 0.1%Acquittals

61% 72%Guilty


Felony Case Outcome Analysis

Appointed counsel reduced charges for 23 percent of clients, which is more than HCPD and hired attorneys, and

appointed counsel also achieved the fewest dismissals

This suggests that HCPD and retained counsel are more likely to achieve dismissal of weak cases,

where appointed counsel is more likely to plead them down

HCPD Appointed Counsel

19% 15%

Assigned Counsel

23%


Appellate Division Outcome Analysis

HCPD appellate counsel had a five percent reversal rate (ratio of number of cases reversed to number of cases

heard)

The 1st and 14th Courts of Appeals (in which the Appellate Division practices) average a three per

cent reversal rate in criminal cases (which includes cases outside of Harris County).


Overview


Outcomes

Recommendations


Recommendations

Continue to adjust the role of the office within the system, ensuring that the county receives the maximum benefit from the specialized defense presence HCPD provides

Periodically review assignment of cases to encourage courts to assign more complex and/or specialized cases to the office

Improve efforts to quantify time spent on cases, with even greater attention to consistent and full reporting

Time spent on cases is collected as part of case management system but only 39% of records have complete time stamps

and this needs to improve


Recommendations (continued)

Conduct periodic caseload analysis and evaluate each division’s caseload to determine if can be expanded

First exploratory review of work load data shows the possibility of increasing workload above 150 under certain circumstances

and appropriate mix of cases

The average felony case took 6.5 hours, resulting in a possible annual caseload of 206 cases (1,344 available hours divided by 6.5 hours per case equals 206 cases) instead of the current 150

standard

Justice Center developed a max 100 points caseload system with specific “weights” by type of case that can be used to

monitor and manage caseload yearly


General Lessons

Quality control leads to better resultsCompetent and diligent representation demands more

effort than minimal per-case or per-docket payment tends to support

More attention is needed to examine the workload or performance of the assigned counsel system

Public Defender Office provides systemic benefits

Targeted expertise such as representation of the mentally ill, successful appellate advocacy and other advice for the

larger criminal defense bar, and ability to work on systemic issues


Thank YouDr. Tony FabeloResearch [email protected]

Carl ReynoldsSenior Legal and Policy [email protected]

Jessy TylerResearch [email protected]

This material was prepared for Harris County. The presentation was developed by members of the Council of State Governments Justice Center staff. The statements made reflect the views of the authors, and should not be considered the official position of the Justice Center, the members of the Council of State Governments, or the funding agency supporting the work.

mailto:[email protected]



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