Indigent Defense: Issues on the Horizon

1. Indigent Defense: Issues on the Horizon Jim Bethke, Director, Task Force on Indigent Defense Jim Allison, General Counsel Texas County Judges and Commissioners Association Andrea Marsh, Executive Director, Texas Fair Defense Project

2. AGENDA • Task Force Mission / Purpose • Indigent Defense Costs • Current and New Funding Strategies • Task Force Legislative Initiatives • Programs and Publications • Rothgery v. Gillespie County

3. Our Mission • Is to IMPROVE the delivery of indigent defense services statewide through: • State Money (Grants) • Providing Professional Support, and • Monitoring Performance

4. Our Purpose • Is to PROMOTE justice and fairness to all indigent persons in a • cost-effective manner • that meets the needs of the local community and • complies the laws and constitutions of the United States and Texas

5. Task Force State Appropriations

6. FY09 Funding Strategies $30 Million Revenue Discretionary Grant New & Cont. Program Formula Grant Direct Disb. Discretionary Grant Replicable Programs Equalization Payment Targeted Specific Extraordinary 6

7. Examples / Impact of Discretionary Grant Programs • Example of Kaufman County Public Defender Office • $190,256 grant - awarded in FY07 • Handled 700 cases to date • Decreased jail population by 20% • Currently expanding office from two to four attorneys (no cost to Task Force) • 2008 County Best Practices Award • If the $190,256 grant had instead been added to pot of Equalization/Formula funds: • Kaufman County would have received $2,086 more in FY2007 7

8. Other Examples (cont.) • El Paso County – MH Unit of PD Office • Clients reportedly spend 25 less days in jail • Estimated savings of $45,000/month • Fort Bend County – Indigent Defense Coordinator • Streamlined appointment process resulting in decreased jail population and faster collection of court costs from defendants (approx. net gain of $150,000 in first year) • Taylor County – Indigent Defense Coordinator • Reported 30% drop in jail population due to faster appointments 8

9. Other Examples (cont.) • Hidalgo County: • Average pretrial misdemeanor jail population dropped from 288 to 176 (38.9% decrease) • Val Verde: • Avg. county jail population dropped from 78 to 61 persons (21.8% decrease) 9

10. Discretionary Grant Program Summary • $12 million awarded to date for: • 14 Indigent Defense Coordinators • 1 centralized magistrate office • 1 indigence verification screening program • 13 technology improvement projects • 2 new units established in public defender offices • 5 new public defender’s offices covering 8 counties • 1 mental health public defender (nation’s first) • 1 appellate public defender covering 32 counties • 1 capital murder public defender covering 85 counties 10

11. New Application Being Developedfor Discretionary Grant Requests In the future, counties could select from a menu of past successful pilot projects and provide a fixed percentage of the required funds for implementation 11

12. Monitoring Program Fiscal Fiscal Accountability in Managing State Funds Fair Defense Law • Baseline Expenses Documented • Expenses Properly Itemized • Attorney Appointment List with Qualified Persons • Proper Fee Vouchers • Indigent Defense Report Accurate • Grant Provisions Followed • Prompt Magistration • Indigence Determined According to Standard • Qualified Attorneys • Prompt Appointment • Fair, Neutral, and Non-discriminatory Appointments • Standard Payment Process

13. Rules/Model Policies Rules Promulgated: • Contract Defender Programs • Continuing Legal Education (CLE) for Attorneys • Grant Administration Model Forms/Procedures: • Affidavit of Indigence • Attorney Fee Voucher • Magistrate Warning (English & Spanish) • Procedure for appeal of fee disapproval

14. Persistence is the hard work you do after you get tired of doing the hard work you already did.-- Newt Gingrich

15. Legislative Initiatives • Streamline Public Defender Statute (SB 159 from 80th Legislature) • Allows a county to establish a public defender’s office as a county department • An RFP still required if contracting with non-profit corporation • Further Recommend: Amending CCP 26.044 to give an oversight board full authority • Source: TFID Staff, David Slayton

16. Legislative Initiatives, cont. • Death Penalty Appellate Representation Qualifications • Establish new qualification requirements for appeals of death sentence • Would permit appellate attorneys to represent defendants on appeal • Many appellate attorneys don’t meet current trial requirements • Source: Regional Presiding Judges, TFID Staff

17. Independent Assigned Counsel Program Define independent assigned counsel program Amend Articles 26.04 and 26.05 Revisions may be necessary allow a fourth model for indigent defense representation Source: Andrea Marsh, Texas Fair Defense Project Legislative Initiatives,cont.

18. Legislative Initiatives, cont. • Pretrial Release Study • Current system forces choice: Bond or Attorney? or • County ends up paying more • Source: TFID staff, Tony Odiorne, Bexar District Judges Angelini and Harle

19. Legislative Initiatives, cont. • Increase State Funding • Increase funding for discretionary grants and/or model program development • Source: TFID Staff; Sen. Rodney Ellis

20. Legislative Initiatives, cont. • Longevity Pay for Public Defenders • Create legislation to encourage longevity • Similar to existing legislation for prosecutors • Need to establish new funding source

21. Published Research and Reports • Blueprint For Creating a PD • Evidence of Feasibility For a PD • Costs/Benefits of Indigent Defendant Verification / Screening • Direct Electronic Filing in Criminal Cases

22. Task Force Website www.courts.state.tx.us/tfid • Publications & Resources, • Legislation, policies, grants & more • Data management • Counties apply for grants • Submit reports via this site • Each county’s data is viewable by public

23. Rothgery Decided June 23, 2008

24. Texas Fair Defense Project (TFDP) Mission TFDP works to improve the fairness and accuracy of the criminal justice system in Texas, with a primary focus on improving access to counsel and the quality of representation provided to poor people accused of crime.

25. TFDP’s Work TFDP defends the rights of indigent criminal defendants through litigation, education, and advocacy.

26. Walter Rothgery

27. SCOTUS Quote “This Court has held that the right to counsel guaranteed by the Sixth Amendment applies at the first appearance before a judicial officer at which a defendant is told of the formal accusation against him and restrictions are imposed on his liberty.” --Rothgery v. Gillespie County, Slip Op. p. 1

28. SCOTUS Quote “[A] defendant subject to accusation after initial appearance is headed for trial and needs to get a lawyer working, whether to attempt to avoid trial or to be ready with a defense when the trial date arrives.” --Rothgery v. Gillespie County, Slip Op. p. 17

29. SCOTUS Quote “ . . . the consequent state obligation to appoint counsel within a reasonable time once a request for assistance is made.” --Rothgery v. Gillespie County, Slip Op. p. 5

30. SCOTUS Quote “[A] criminal defendant’s initial appearance before a judicial officer, where he learns the charge against him and his liberty is subject to restriction, marks the start of adversary judicial proceedings that trigger attachment of the Sixth Amendment right to counsel.” --Rothgery v. Gillespie County, Slip Op. p. 5

31. CCP Quote “An indigent defendant is entitled to have an attorney appointed to represent him in any adversary judicial proceeding that may result in punishment by confinement.” --Texas Code of Criminal Procedure art. 1.051(c)

32. CCP Quote “[I]f an indigent defendant is entitled to and requests appointed counsel and if adversarial judicial proceedings have been initiated against the defendant, [the appointing authority] shall appoint counsel as soon as possible,” but not later than 1 to 3 working days (depending on county size after the appointing authority receives the defendant’s request for counsel. --Texas Code of Criminal Procedure art. 1.051(c)

33. CCP Quote “Notwithstanding any other provision of this section, if an indigent defendant is released from custody prior to the appointment of counsel under this section, appointment of counsel is not required until the defendant’s first court appearance or when adversarial judicial proceedings are initiated, whichever comes first.” --Texas Code of Criminal Procedure art. 1.051(j)

34. SCOTUS Quote “[A policy of denying appointed counsel to defendants released on bond until entry of an indictment or information], if proven, arguably would also be in violation of Texas state law, which appears to require appointment of counsel for indigent defendants released from custody, at the latest, when the ‘first court appearance’ is made.” --Rothgery v. Gillespie County, Slip Op. p. 4 n.7 (citing Texas Code of Criminal Procedure 1.051(j))

35. CCP Quote “Notwithstanding any other provision of this section, if an indigent defendant is released from custody prior to the appointment of counsel under this section, appointment of counsel is not required until the defendant’s first court appearance or when adversarial judicial proceedings are initiated, whichever comes first.” --Texas Code of Criminal Procedure art. 1.051(j)

36. 1 or 3 working days 1 working day 48 hours 24 hours Arrest Magistration (Arrestee Requests Counsel) Request Forwarded to Appointing Authority Indigence Determined and Counsel Appointed Attorney Contacts Client Active Assistance Given for Completing Affidavit of Indigence at Time of Magistration Hearing Arrestee Bonds Accurate Client Contact Information (with Bonding Company) Sent to Attorney Request for Counsel Stored in Central Repository Allowing Law Enforcement to Determine that a Request was Made

37. MI v. Jackson “In both cases, the Michigan Supreme Court held that postarraignment confessions were improperly obtained -- and the Sixth Amendment violated -- because the defendants had ‘requested counsel during their arraignments, but were not afforded an opportunity to consult with counsel before the police initiated further interrogations.’ We agree with that holding.” --Michigan v. Jackson, 475 U.S. 625, 626 (1986)

38. MI v. Jackson “Sixth Amendment principles require that we impute the State's knowledge from one state actor to another. For the Sixth Amendment concerns the confrontation between the State and the individual. One set of state actors (the police) may not claim ignorance of defendants' unequivocal request for counsel to another state actor (the court).” --Michigan v. Jackson, 475 U.S. at 634

39. MI v. Jackson “Just as written waivers are insufficient to justify police-initiated interrogations after the request for counsel in a Fifth Amendment analysis, so too they are insufficient to justify police-initiated interrogations after the request for counsel in a Sixth Amendment analysis.” --Michigan v. Jackson, 475 U.S. at 635

40. 1 or 3 working days 1 working day 48 hours 24 hours Arrest Magistration (Arrestee Requests Counsel) Request Forwarded to Appointing Authority Indigence Determined and Counsel Appointed Attorney Contacts Client Active Assistance Given for Completing Affidavit of Indigence at Time of Magistration Hearing Arrestee Bonds Accurate Client Contact Information (with Bonding Company) Sent to Attorney Request for Counsel Stored in Central Repository Allowing Law Enforcement to Determine that a Request was Made

41. 2008 Indigent Defense Workshop October 23-24 TAC Event Center Registration and agenda available Register soon! CALL Terri at 512-936-6994

42. Or see me or staff for registration form

43. THANK YOU www.courts.state.tx.us/tfid PO Box 12066 205 W. 14th Street – Suite 700 Austin, Texas 78701 512-936-6994