Indigent Defense

1. Indigent Defense • Texas Association for Court Administration • Ft. Worth, October 23-26, 2012 Jim Bethke, Executive Director, TIDC

2. The right to counsel is required by the U.S. Constitution and Texas law. It is NOT discretionary.

3. www.txcourts.gov/tidc

4. The Texas Indigent Defense Commission provides financial and technical support to counties to develop and maintain quality, cost-effective indigent defense systems that meet the needs of local communities and the requirements of the Constitution and state law.

7. Goals for Today Review Requirements & Accomplishments under Fair Defense Act of 2001 & 2011 2. Examine Grant Opportunities—State & Feds 3. Discuss Recent State & National Indigent Defense Initiatives / Preview 83rd Legislative rs

8. Fair Defense Act of 2001 & 2011 Contextual BackgroundHistory

9. Long Road to Make Indigent Defense Meaningful Texas Fair Defense Act (FDA) Gideon vs. Wainwright 2001 1963 2012 12 Years of Implementation Struggle to translate at state level the “right to counsel” into a meaningful indigent defense system

10. Gideon vs. Wainwright In our adversarial system of criminal justice…. With government “quite properly” spending “vast sums of money to establish machinery to try defendants accused of crime”.....you need ….. “procedural and substantive safeguard designed to assure fair trials before impartial tribunals in which defendants stands equal before the law” “This noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him.” Gideon v. Wainwright, 373 US 335 (1963)

11. Fair Defense Act of 2001 Adopted to Address Major Issues with Texas Indigent Defense No uniformity in local indigent defense appointment practices Established Texas Task Force on Indigent Defense Judges’ discretion to select counsel, pay fees and determine who is indigent fueled appearance of cronyism No consistent standards regarding training and experience No state funding or oversight Set infrastructure to address issues and implement FDA in 2001 Few Public Defender’s Offices Appearance of inconsistencies in qualifications for death penalty cases No reporting on budget/performance

12. Fair Defense Act Put Structure in Place for Improving Indigent Defense in Texas State Funding Process Standards Oversight Timing of Appointment State Provides Some Funding to Support Indigent Defense Required Plans Method of Appointment Transparency & Data from New Reports Compensation Grants for Improvements Fiscal & Program Monitoring Qualifications Improve Quality of Representation Meets Constitutional Standards Heightens “prima facie” legitimacy Improves “Justice Outcomes”

13. Highlights of Accomplishments State Funding Limited but Increasing Key Process Standards Implemented Oversight in Place Local plans with agreed method of appointment, fee schedules and qualifications in place State “formula” funding to “subsidize” local costs limited but in place Prompt appointments “Fair, neutral and non-discriminatory” appointment process State “discretionary” funding “targeted” for better quality and cost-effective programs Reporting to the state routine Prompt payment process and standard for fee schedules Compliance audits routinely conducted Direct Client Services Qualification process Legislative initiatives develop with commission direction PD expansion / Regional programs Capital Writs Office MAC programs

14. Specific Legislative Accomplishments Greater independence for Commission Texas Indigent Defense Commission (2011) Budget request directly from Commission to legislature Director works for Commission Authorize “managed assigned counsel” programs and capital appellate attorney standards Added standards Assignment of counsel method for motions to revoke probation and appeals Expansion of FDA

15. Key Judicial Duties • Plan Preparation and Submission • Establish Process to Screen for Indigence • Rule on requests for appointed counsel Appoint counsel promptly • 1 working day if county population over 250,000 • 3 working days if county population is under 250,000

16. Screening & Verification Overview Private counsel retained magistration Appoint counsel No Yes Is counsel requested? Does person qualify for counsel? Pre-Trial assists w/& verifies financial affidavit magistration Private counsel retained Yes Yes No Pre-Trial Services used before magistration? Arrest Does person qualify for counsel? Appoint counsel Yes Magistrate assists w/& verifies financial affidavit Yes No Is counsel requested? Private counsel retained magistration No No Private counsel retained

17. Timelines for Appointment of Counsel

18. Front-end Processing Issues 24 hours 1 or 3 workdays 1 workday 48 hours Magistration (Request for Counsel Taken) Request for Counsel Received by Appointing Authority Appointing Authority Determines Indigence and Notifies Counsel Appointed Counsel Contacts Clients at Jail Arrest Issue 1: No date/time of arrest recorded, so time to magistration not determinable Issue 5: Pre-case filing events not centrally tracked, so timely processing not determinable Issue 3: No timely transfer of request Issue 4: Denials of indigence are often not documented, so timely determination may not be determinable Issue 6: Percentage of cases assigned to same counsel Issue 2: No assistance w/ affidavit or jailer assists w/ affidavit 18

19. Rothgeryv. Gillespie County 128 S. Ct. 2578 (2008) “[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.”

20. Does an Article 15.17 hearing (magistration) in Texas mark the initiation of adversary judicial proceedings, “with the consequent state obligation to appoint counsel within a reasonable time after a request for assistance is made”? Questions Answered by the Supreme Court in Rothgery • Answer: Yes (128 S. Ct. at 2583-84)

21. “[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.” (128 S. Ct. at 2592)

22. Does the right to counsel attach at the Article 15.17 hearing even if a prosecutor is not aware of or involved in its conduct? • Answer: Yes • (128 S. Ct. at 2581) Questions Answered by the Supreme Court in Rothgery

23. But isn’t an indictment required in order to commence adversary judicial proceedings and cause the right to counsel to attach? • Answer: No • (128 S. Ct. at 2586, citing Michigan v. Jackson, 475 U.S. 625, 639 n.3 (1986)) Questions Answered by the Supreme Court in Rothgery

24. “[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, 128 S. Ct. at 2590) Why Do Defendants Need Lawyers After Their Art. 15.17 Hearing?

25. How Quickly Must A Defendant Be Given A Lawyer After the Article 15.17 Hearing . . .Under Federal Constitutional Law?

26. “[C]ounsel must be appointed within a reasonable time after attachment to allow for adequate representation at any critical stage before trial, as well as at trial itself.” (Rothgery, 128 S. Ct. at 2591) • Defendants are entitled to counsel to help them prepare for critical-stage proceedings, and to decide whether to undergo optional/voluntary critical-stage proceedings. (Estelle v. Smith, 451 U.S. 454, 471 (1981)) Under Federal Constitutional Law?

27. Interrogations after the Art. 15.17 Hearing • Line-Ups after the Art. 15.17 Hearing • Examining Trials • Psychiatric Exams • Plea Negotiations • Arraignment • Pre-Trial Hearings • Trial Example of Critical-Stage Proceedings

28. How Quickly Must A Defendant Be Given A Lawyer After the Article 15.17 Hearing . . .

29. If the Defendant is in Custody: “[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)) Under the Texas Code of Criminal Procedure?

30. Does an Article 15.17 hearing (magistration) in Texas mark the initiation of adversary judicial proceedings? • Answer: Yes (128 S. Ct. at 2583-84) Questions Answered by the Supreme Court in Rothgery

31. How Quickly Must A Defendant Be Given A Lawyer After the Article 15.17 Hearing . . .Under the Texas Code of Criminal Procedure?

32. If the Defendant is Released on Bond: “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)) Under the Texas Code of Criminal Procedure?

33. Appointed Counsel Duties • Apply for inclusion on appointment list • Accept appointment from court • Interview client promptly: • Contact client by end of first working day after receiving notice of appointment (fax, phone, mail or in person) • Interview client as soon as practicable • Note: Failure to contact/interview client timely may result in removal from appointment list

34. Appointed Counsel Duties, cont. • Investigate facts of arrest and offense • Prepare for every court appearance with client • Represent client until: • Charges are dismissed; • Defendant is acquitted; • Appeals are exhausted; or • Attorney relieved and replaced after good cause finding by court

35. Appointed Counsel Duties, cont. • Request payment for your reasonable attorney fees and any expenses incurred: • In-court and out-of-court time spent on case • Post-trial activities such as preparing a motion for rehearing, appellate brief, oral argument • Fee schedule provide reasonable compensation based on time required, complexity of case, and ability of attorney • If request for payment is denied, even in part, judge must put reasons for denial in writing. You may appeal the denial by filing a motion with PJ of the administrative judicial region

36. Section 79.034. Policies and Standards(see pages 48-49, FDA, codified) Gov’t Code Sec. 79.034. POLICIES AND STANDARDS. (a) The commission shall develop policies and standards… The policies and standards may include: (1) Performance standards for counsel appointed to represent indigent defendants. See State Bar of Texas: Non-Capital Guidelines / Options Require attorneys to read and be familiar with the Guidelines as objective attorney qualification; Include in criteria for approving an attorney for list their commitment to the Guidelines; Include in criteria for periodic review/removal of attorneys their commitment to the Guidelines; or Require attorneys to read and be familiar with the Guidelines in section duties of appointed counsel.

37. Examine Grant Opportunities TIDC Grant Program and Funding History

38. Historical Grant Funding * Budgeted; ** Up to this amount; ^Includes Extraordinary, Technical Assistance, and Targeted Specific Assistance.

39. Indigent Defense Spending by Type of Service

40. Indigent Defense Spending by Type of Case

41. Average Cost Per Case Breakdown

42. Historical Trend in Allocation of Funds 2003 2007 2011 $1.4 mil. $2.3 mil. $8.6 mil. $10.4 mil. $25.1 mil. $14.8 mil. * In 2002 grant funds were 100% Formula-based.

43. Outline Formula Grant Program

44. Formula Grant Program Population-Based Grants Direct Disbursement Grants Equalization Grants

45. Formula Grants: Population-Based Floor of $5,000 allocated per county Remainder of funds distributed based upon a county’s percentage of state population County may not reduce the amount of funds provided for indigent defense services in the county because of funds provided by the Commission

46. Formula Grants: Direct Disbursement This type of grant is subset of population-based formula grants which permits small counties to access formula grant pool without applying for grant

47. Formula Grants (Spending): Equalization Grants Allocated to ensure minimum state funding reimbursement rate for increased expenses above 2001 baseline Counties encouraged to use money to help pay for a new initiative or project to improve indigent defense services

48. Formula Distribution FY 2011 60% population-based 40% equalization *(the percentage varies yearly)

49. Factor Used in the Present Formula “Formula” “Equalization” 1. County Population (2010) Floor of $5,000 for All • County Spending (2001) • Based on the % of increased expenses since 2001 baseline • County may not reduce the amount of funds provided for indigent defense services b/c of funds provided by the Commission

50. FY2011 Formula Grant Tarrant Dallas Harris population$2.1 million population$.94 million population$1.2 million 2001 base: $16,099,401 2001 base: $10,997,784 2001 base: $5,736,549 2010 IDER: $22,129,394 2010 IDER: $27,276,768 2010 IDER: $13,392,061$9.34 per capita $6.67 per capita $7.40 per capita Population 2,368,139 Population 4,092,459 Population 1,809,034 Equalization $400,000 Equalization $2.1 million Equalization $950,000 Actual $1.6 million Actual $4.2 million Actual $1.9 million