In early June 2014, the mood at the Bexar County Public Defender's Office finally lifted a positive note. After three years of not having a Chief Public Defender — Angela Moore, who started the office in 2005 with a Texas Indigent Defense Commission grant, resigned in frustration in 2011 — Bexar County Commissioners Court appointed Richard Dulany as interim Chief Public Defender and promised to hire a full-time person to head the office.
Things were looking up. Dulany seemed like a shoo-in to get the permanent position. He had a background in public defender work dating back to 1994 and he had pushed to reform the languishing office as it remained leaderless. The department was not in compliance with state law, and it faced a conflict of interest because it was housed in Judicial Services, the same department as the medical examiner and lab technicians — those departments are staffed with people who are sometimes crucial in convicting Bexar County residents working on an appeal through the office.
Dulany was one of two appellate attorneys in the Bexar County Public Defender's Office at the time.
Further bolstering his credentials, it was Dulany's complaining that resulted in some significant changes — Bexar County promised to hire a Chief Public Defender, bring the office into compliance with state law and resolve the conflict of interest presented by housing the public defender, medical examiner and lab technicians under the same department.
Fast forward to March 17, 2015, and the county hired a new Chief Public Defender. Dulany didn't get the job. Instead, it went to Michael Young, a criminal-defense attorney from the Rio Grande Valley who also worked as a federal public defender in Brownsville, Texas. By September 24, 2015, Young had fired Dulany.
"I was angry and in disbelief when I first got fired," Dulany said. "Now I'm just so happy I'm not in that place and that I don't work for the county."
He says things started going downhill between him and Young right away. Young readily admitted that he and Dulany had "philosophical" differences.
"First, we are all at-will employees," Young said of Dulany's termination. "The only thing I would be comfortable commenting on is I don't think his vision for the office and the role the public defender should play in indigent defense in this county was consistent with the idea I had."
Dulany said his beef with Young's vision boiled down to the mental health services provided by public defenders and a trial program to bring the public defenders into Central Magistration, where arrestees make their first appearance, to flag mentally ill defendants and represent them during bail hearings. He also took issue with a general misdemeanor trial pilot program.
"My whole thing about the public defender's office and mental health services is it needs to be efficient," Dulany said. "It was obvious to me when I was in private practice that the court-appointed attorneys do a real good job on the run-of-the-mill misdemeanor case."
Not so when it comes to mental health.
"If you get appointed on a mentally ill defendant, and you don't have specialized training, you are probably not the best person to represent that client," he said. "And that's where a specialty defender, a mental health public defender, is invaluable."
As for Central Magistration program, Dulany said the private bar should administer it, not the public defender's office.
Young, however, touts the Central Magistration program as a success. And he says public defenders are needed direly at Central Magistration.
Between April 1, 2014, and February 28, 2015, 7,216 persons were estimated to be eligible for diversion to the Center for Health Care Services for mental health treatment programs, according to a grant award from the Texas Indigent Defense Commission. Of those, just 2,170 were assessed and only 125 were diverted for services, representing 5.76 percent of persons screened and representing only 1.7 percent of those eligible for diversion instead of time in Bexar County jail.
According to the TIDC grant award, the underutilization of diversion is multifaceted, including noncooperation from arrestees — roughly 50 percent refused to participate or discuss mental health issues. This might be because of the physical layout of Central Magistration, where arrestees are booked by officers in close proximity to where they are seen by a mental health professional. The other problem, according to the grant award, is the lack of having a mental health professional at the facility every day, all day, seven days a week.
However, Young says anecdotal evidence exists that the pilot program will be successful. Young brings up a man named Jonathan Lanier, a homeless man arrested on a drug charge. Assistant Public Defender Erica Dominguez represented him at his first bail hearing and was able to secure his release on a personal recognizance bond and Lanier was transferred to Haven for Hope. The case was handed over to Assistant Public Defender Andrew Fletcher, who got it dismissed. By mid-February, when the public defender's office tried to follow up, Lanier already had his own apartment and insisted that they meet him on the weekend because of his day job.
"The whole object of that was get him out of that whole go to jail, doing 20 days, getting time served and ending up back on the street," Young said. It saved the county money and brought Lanier into the right kind of morally responsible justice.
However, there are logistical problems with it.
"The problem has been more injecting ourselves into a currently existing model out there," Young said, explaining that detention officers, magistrate judges, pre-trial and mental health professionals are the existing landscape. "And it's like, all of a sudden, now we show up and we are putting ourselves in there."
Last Tuesday, Young met with the magistrate judges in an effort to figure out how to streamline the process. He said the tone of the meeting was positive.
The misdemeanor trial court pilot program is also seeing a rocky start. As it stands, only County Court 12 will hear cases from the program. Again, logistics. A computer currently appoints attorneys, Young said, so if a mentally ill indigent client lands in any court aside from County Court 12 for a misdemeanor, the public defender's office can't represent them.
While 2014 and 2015 saw basic improvements to the public defender's office — like bringing it into compliance with state law — the fact remains that expanding the public defender's office has been a troubled process, from logistical hurdles to county politics to conflicting philosophies on the role of the office.
"You know, it's difficult in any county. It really is, especially in Texas," Young said. "It's such a hodgepodge how they do it, and, so, defining those roles and making sure it's going to be quality, that's the primary goal, making sure you are doing something better for the client."