On May 6, Richard Dulany nearly gave up on Bexar County. The 48 year-old attorney is one of two appellate public defenders, hired by Bexar County to represent accused criminals who cannot afford to retain their own lawyer. He had been alternately baffled and frustrated practically since he started with the office in the spring of 2013, but sitting in the back of the room during that Tuesday’s Commissioners Court meeting, wearing his bowtie and listening to what should have sounded like good news, he decided to complain even louder.
The County’s proposed solution to issues Dulany himself raised did not seem likely to produce better results for the hundreds of thousands of Bexar County residents estimated to qualify for indigent defense. In fact, the quality of indigent defense was barely discussed at all. “It’s just a disaster,” said Dulany in an interview the following Saturday, explaining his grievances against the Bexar County Public Defender’s office as currently organized.“There’s zero leadership and zero management.”
Indeed, the office, currently comprised of two appellate public defenders (including Dulany) and one mental health public defender, has been without a “chief public defender” since May 2011 when the last chief resigned in disgust and was promptly escorted out of the County’s office building. Required under Texas law for any functional public defender’s office, the chief typically manages the department’s budget, caseloads and staffing. And since lawyers are compelled to only take direct instruction on their cases from other attorneys as per the American Bar Association, it’s essential the chief public defender be licensed to practice law in the state as well.
For the last three years, this state requirement has been flouted, and for nearly nine years, so has one that mandates the office be operated as an independent department.
For much of the office’s history, it’s been under the relatively new Judicial Services branch, a seemingly obvious departmental home. Yet Dulany first made waves last November, when he filed a motion to withdraw from a case due to a conflict of interest. Simply stated, the conflict arose from the fact that the medical examiner and county crime lab were under the same county department as the public defender, and answered to the same department head. This arrangement created at least the appearance that the public defender attorneys might hesitate to attack the testimony of the medical examiner or crime lab technicians, even though it could be a crucial part of the defendant's appeal. The court agreed. Most recently, in a bizarre effort to temporarily relieve this conflict, the Public Defender’s Office has been moved under the newly created Mental Health department. Dulany did not welcome this transition, either.
The plight of the public defender is pretty rough anywhere, anyway. The pay is low, the clients often truly guilty criminals and the success rate marginal. For appellate public defenders like Dulany, the rate at which they successfully overturn convictions rarely gets above five percent. Yet innocent people are arrested and wrongful convictions do occur, and are sometimes even overturned. In fact, according to the National Registry of Exonerations, the trend for exonerations is ascending. Last year, 90 exonerations were issued, the highest number recorded for any year the Registry tracks, and Texas led the nation with 13 exonerations. Though those crimes garnered felony convictions, it stands to reason that wrongful convictions likely extend to misdemeanors as well.
While the right to a fair trial is enshrined in the Sixth Amendment, and the assistance of counsel for anyone, even if they cannot afford it, was affirmed by the Supreme Court in 1963’s landmark case Gideon v. Wainwright, there’s precious little instruction on how to provide what’s called “indigent defense.”
States are largely left to their own devices. For years in Texas, individual judges were in charge of assigning cases to court-appointed attorneys—who would be reimbursed by the county instead of hired by the client—if a defendant was found to be indigent, so the approach could and did vary with each judge in each court. In 2001, Texas passed the Fair Defense Act (FDA), which for the first time required counties to present a written plan standardizing indigent defense protocols and developed the Texas Indigent Defense Commission to evaluate these plans and disburse grant funding from the state.
“What the Fair Defense Act did is that it went from a system that wasn’t a system at all … to a system where counties are supposed to develop indigent defense processes,” said Andrea Marsh, founder and executive director of the Texas Fair Defense Project. “There’s 254 counties and 254 ways of doing things,” in terms of indigent defense, Marsh said by phone. Counties could continue to follow a court-appointed attorney plan, they could “farm out” indigent defense to a nonprofit, they could create an in-house public defender’s office or they could create some sort of hybrid of those options. That holds for pleas, trials and, in Texas, the right to an appeal, which is the work that Dulany does.
In Bexar County, the definition of indigent—making less than $957.50 per month in net income—means that about 20 to 25 percent of County residents could be considered too poor to afford a lawyer according to US Census data. According to a study by the TIDC, Bexar County has the second-highest rate of indigent cases, with 60 percent of misdemeanor defendants and 70 percent of felony defendants receiving court-appointed or public defender attorneys. The two appellate public defenders currently working for Bexar County handled just under 30 percent of all the criminal appeals filed during the second half of 2013. Court-appointed lawyers handle the remaining indigent appeals, as well as all of the non-appeal cases, both felonies and misdemeanors.
When you meet Dulany, you can almost immediately tell he’s the kind of guy who could easily get crosswise with authority. Wiry and energetic with unblinking blue eyes and sandy hair turning white at the temples, he’s self-admittedly “intense” and has “an incredible stubbornness.” Beyond that, he’s an enthusiastic iconoclast whose passion for his dog (a comely Sheltie named Victoria), his hobbies (home brewing and winemaking) and his soon-to-arrive first child can sometimes seem to rival that of his profession, which he jokes boils down to “getting paid by the man to fuck with the man.” Anyone with any knowledge of Texas county governments, so dependent on protocol and hierarchy, could simply write Dulany off as a square peg in a round hole. Yet, for years he got along just fine, first in the New Mexico public defender’s office and then on both sides of El Paso County’s judicial system. He’s actually the only person to work in Bexar County’s Public Defender’s Office who has also worked for other public defender’s offices.
Dulany grew up in Dallas, the son of a public health nurse and a urologist, in a home he described as belonging to “the only Democrats” in the affluent University Park area. The joint experiences of accompanying his mother on house calls in Dallas’ housing projects and growing up with Democrat parents at a time when Dallas made national news for its vociferous hatred of the party seem to have imprinted upon Dulany, who gravitated toward public defender work shortly after graduating from University of Texas’ law school in 1991. He wound up in El Paso’s public defender’s office for about two years before lighting out to New Mexico where he worked in the Farmington District Attorney’s office, which he described as “living a Tony Hillerman novel” and then for the public defender’s office in Las Cruces. But a lackluster salary caused him to call up colleagues in El Paso, and he returned to West Texas to work in El Paso’s District Attorney office as an appellate attorney for almost seven years.
Dulany and his wife Laura, a physician, moved to San Antonio in 2006, where Laura hails from. After some detours into tax law and brewpub management (thinking of opening his own beer joint, Dulany worked in Freetail’s kitchen for a year), Dulany hung out his shingle as a criminal defense attorney once again.
He had especially missed his appellate specialty. “What I do is weird,” he said one Friday afternoon at Taps y Tapas over a happy-hour pint. “There aren’t many people who can—or want to—do these things.” Reflecting on appellate public defenders particularly, he said, “you have to be committed to it, you have to have a really thick skin and you have to be aggressive in the most diplomatic way you can.” When he first walked into the Bexar County Public Defender’s Office, he was “just happy to get the job.” And that’s when the trouble started.
A good illustration of what drives Dulany, and likely many other criminal defense attorneys, comes in the form of a man with the divine name of Jesus Angel Garcia.
To hear Garcia tell it, he was in a pretty desperate spot one chilly Monday night in late November 2010. A baby-faced man in his late 20s at the time, Garcia testified in court that he was pulled over at about 1:30 a.m. while on a quick trip to pick up some much needed cash from a co-worker who owed it to him. According to court transcripts, the officer who made the stop said he smelled alcohol and thought Garcia was slurring his words when he spoke with him. After administering three field sobriety tests, which he claimed Garcia failed spectacularly, the officer arrested Garcia for driving while intoxicated.
During his February 12, 2013 trial, Garcia pled not guilty and took the stand in his own defense. In an interview with the Current, he bashfully admitted that his finances didn’t allow him to hire a lawyer at the time, so he received a court-appointed attorney. His testimony, versus the arresting officer’s testimony, was essentially the only evidence admitted into court for the swift, decisive trial, as at the time of his arrest not all SAPD patrol cars had “dashcams” to record traffic stops. The officer did not pull Garcia over for a moving violation, and testified that he observed no suspicious driving on Garcia’s part. Rather, he pulled Garcia over because the vehicle—a Ford Mustang his girlfriend had recently purchased used—had temporary tags in lieu of a proper license plate. The officer claimed these tags were not the standard dealer tags that are commonly doled out to cars purchased and then driven off the lot, but the type that are used for vehicles on test drives. To the officer, that indicated the car could have been stolen, and justified him pulling over Garcia.
Garcia, who spent 164 days in the Bexar County Jail rather than plead guilty, disputes this. Garcia disputes the whole police report. But Garcia, despite his divine name, lost.
The jury found Garcia guilty and Judge Jason Wolff sentenced him to a fine and jail time that was credited to time served. Between this arrest and his trial, Garcia was arrested on a second DWI. This time, he asked for a blood test. It took about three months for the results to come back, but when they did, it showed less than the legal limit of blood-alcohol content and he was released from jail.
Perhaps the outcome of that second DWI has galvanized Garcia to pursue all the rights accorded to him under federal and state law, including an appeal filed by Dulany.
Nothing in the transcript suggests that Garcia’s original, court-appointed attorney performed in the egregiously bad way that an appeal on grounds of ineffective counsel requires. But Garcia and Dulany tried to prove that’s because a key piece of evidence, the temporary vehicle tag, was never admitted. The tag was not made part of the record on appeal, so initially Dulany argued that even if the tags were the type used in test drives, they’re the same as those used for “loaner” vehicles a dealership might give to customers getting their car serviced and thus “was entirely consistent with innocent, lawful behavior,” making the traffic stop baseless and the resulting evidence inadmissible in court. That, the appeal filed in the spring of 2013 states, is enough to establish that the court-appointed defense attorney “fell below an objective standard of reasonableness” and that deficiency turned the outcome against Garcia. However, hearing the appeal this spring, Justice Karen Angelini of Texas’ Fourth Court of Appeals sided with the original judgment.
But just after Dulany filed his brief, the district attorney assigned to Garcia’s appeal shared with him one thing that Dulany believes might just make a difference: the actual temporary tag. So, Dulany filed something he rarely does, a sort of “hail Mary” of the justice system called a petition for discretionary review, or “PDR.” It is essentially Garcia’s last shot at getting his conviction overturned via a court-appointed lawyer.
In the PDR that Dulany filed, he noted that “it is readily apparent that the tag is a vehicle-specific one” and not, as the officer claimed, a more generic type used for test drives. Ergo, Dulany argued in the petition, the traffic stop was unlawful and the officer provided false testimony, since the officer clearly stated during the trial that the type of tag he saw would have zeros for the VIN and zeros for the year and make of the vehicle. The tag on Garcia’s girlfriend’s Mustang included those fields. The question is: is driving around with temporary dealer plates late at night suspicious enough to pull over anyone?
The petition is still under review, and the chance of it succeeding, some familiar with criminal appeals say, is perhaps one percent. If the PDR is granted, Garcia will get a “do-over” on his day in court.
For Garcia, who could have been free of this ordeal long ago save for some stiff jail time served had he pleaded guilty, it comes down to what he described in court as being “railroaded” by a police officer who testified he wrote “hundreds” of DWI tickets. In an interview in mid-May, Garcia said, “somebody needed to stand up to that officer.” His decision to plead not guilty and pursue that claim as far as he’s legally allowed came, he said, “when I read the police report; I couldn’t believe it.” In court, under oath, he described the police report as “not accurate at all.” In the interview, Garcia said, “all I want is a new trial, so I can fight it the right way.”
Garcia’s case helps to illustrate the type that Dulany puzzles out in his position at Bexar County. Though perhaps not as involved as work for the original trial, appeals are knotty things—so much so that National Legal Aid and Defenders Association recommends attorneys take on no more than 25 appeals per year. Last year, Dulany filed 30 briefs, well over that standard. He and his fellow appellate public defender, Michael Robbins, stopped taking new appeals cases on May 1 because they were already too overwhelmed. Robbins will file six briefs in the next month alone. A typical month following caseload standards may see two to three briefs.
A chief public defender would oversee caseloads, and make the decision when the staff attorneys—who are often cheaper than court-appointed attorneys—have too much on their plate. According to the American Bar Association, attorneys may be disbarred for taking on so many cases that they are unable to render competent counsel. Without a chief, neither Robbins nor Dulany have the clear authority to alter their caseloads or appeal to the Commissioners Court to hire additional staff. They previously would go through Mike Lozito, head of Judicial Services and now would need to go through the head of Mental Health, Gilbert Gonzales.
Robbins, an attorney who practiced for more than 24 years before joining the original Bexar County public defender team, generally gets along with his higher-ups at the County. “I’m not saying one bad thing about Mike Lozito,” said the attorney in an interview in his office, “he’s a nice fellow and a good man.” He’s even eager to work under County Manager David Smith, and said he has no knowledge of either Lozito or Smith interfering with the Public Defender’s Office since he’s worked there. But Robbins would like to see at least three changes: to be a department directly under Smith, instead of housed in another department; a chief public defender; and at least one more appellate public defender.
However, other people aside from Robbins have left the office under contentious terms, for reasons that echo Dulany’s concerns about the office and Robbins’ suggestions.
In 2005, Angela Moore started the Bexar County Public Defender’s Office with a grant from the state entity that oversees indigent defense, the Texas Indigent Defense Commission and ran it until May 2011, when she resigned, as she explained over lunch, “due to [her] treatment.” The first and only chief public defender, Moore’s first annoyance came when she was told the Public Defender’s Office would be moved to a department called Criminal Justice Planning and Coordination shortly after the office opened in 2005. In 2009, it transferred to the newly created Judicial Services.
“I don’t know if they planned it,” she said of the move, “they never mentioned it to me, and they never discussed it with me.” Prior to that, Moore reported directly to the Commissioners Court, which is how most other public defender offices in Texas are organized. Under Judicial Services, Moore said she felt like she lost her autonomy, and once the original grant to start the office ran out, watched as her office’s budget dwindled and her staff went from four attorneys to two. “I couldn’t even apply for some federal criminal justice grants because we had to go through County offices and the County wouldn’t follow up,” she said.
Moore emphatically believes that the County’s focus is on the bottom line, and her non-attorney overseers were more concerned with numbers rather than quality of defense. “We were having to convince non-lawyers of the rule of law and the need for public defenders,” she continued, adding “Bexar County doesn’t care about the rights of the accused because they’re politically powerless.”
Rocky Glass, a public defender hired by Moore who now heads up the Ft. Bend County Public Defender’s Office, affirmed this perspective. He started with the Bexar County office in late 2007 and stayed for two years. “They wanted numbers, ‘how can we quantify the work that you do?’” Glass said via phone in late May. “Appeals are very difficult to quantify … The Commissioners Court was thinking that the public defenders office saves money, but it doesn’t particularly save money with the appellate office … Indigent defense doesn’t necessarily mean cheap defense.” He characterized his sense of the County’s perspective as: “Poor people should just get the cheapest defense possible.”
Glass left the office to take the job in Ft. Bend. “I saw the writing on the wall,” he said, “there was all this politics going on, certain people didn’t like Angela personally … more and more people were coming to me to get things done; they were going around her and I thought that was kind of sneaky and ridiculous.”
Unmoored, the remaining public defenders continued to flounder in a sea of office politics. Dulany only briefly crossed paths with Lori Miller, the senior assistant appellate public defender (both Dulany and Robbins are assistant appellate public defenders). She left almost exactly two years after Moore, via a long, angry letter circulated to county employees. It’s referred to by both her supporters and detractors as “Lori’s Manifesto.”
Miller, who could not be reached for comment, was another original member of the Public Defender’s Office. Her manifesto states “I have grave concerns that the office is not in compliance with the laws of the State, or the framework under which the County officials originally established the Public Defender’s Office; and that, due to the interference of county middle-management, the attorneys in the Office are being forced into a situation where we must choose between acquiescing to the demands of the Judicial Services Department administrators, in violation of our ethical duties as attorneys, or face the prospect of the office being closed down and losing our jobs…”
Miller, too, criticized the County for not filling the then-two-year vacant chief public defender post and failing to remedy the conflict of interest posed by having the Public Defender’s Office under Judicial Services.
In an interview, Seth Mitchell, assistant to the County Manager, said of these general complaints, “I think it’s the approach that they bring to their job. If they’re looking to be offended, they’ll be offended,” and indicated that likely in every county department one could find a few disgruntled employees. When told that there were other County employees outside of the Public Defender’s Office who were similarly concerned, he said that it’s also not hard to find County employees who take issue at how another department is being run.
One of those employees would be Melissa Barlow Fischer, general administrative counsel for the criminal courts in Bexar County. Barlow Fischer was on the original Public Defender’s Office oversight committee and maintains that the appellate public defenders office is well liked by the court it serves, the Fourth Court of Appeals. However, she too questions the legitimacy of the Public Defender’s Office. “To set out a public defender’s office and cut out major stakeholders like the judges and defense attorneys, it’s just doomed to fail,” she said by phone. She’s also currently frustrated that the newly reinstated oversight board has not had a meeting since the department was moved into the Mental Health department in February and lacks a chair as well as clear instruction from the Commissioners Court, which is also required under the Texas Code of Criminal Procedure.
“It’s a heck of a lot cheaper to have an appellate public defender and pay them a salary than pay for [court-appointed attorneys],” said Barlow Fischer. “But it’s kind of like, at what cost? Is it OK that it’s not set up the way it should be? No. It’s somewhat embarrassing for the county when you compare [our office] to other counties.”
The frustration expressed by Dulany, Moore, Glass, Miller and Barlow Fischer is aimed primarily at Bexar County, but there’s relatively little relief to be found from the state. Even supporters of the Fair Defense Act admit that it leaves much to the county’s discretion, whether attorneys, and even the commission created to govern indigent defense in Texas, agree or not.
For instance, many counties in Texas don’t even have public defenders, and instead rely solely on a court-appointed attorney system. However, at this point, every major urban county in the state has a public defender’s office, though they vary widely in structure. El Paso County has 32 attorneys under one chief public defender, as well as six investigators, two social workers and two caseworkers; Dallas County has one chief public defender overseeing nearly 90 public defenders; Travis County has one mental health public defender and one juvenile public defender. Most, if not all, of these public defender offices augment a court-appointed system, rather than replace it entirely, and that approach seems most favorable to the indigent defense experts consulted for this article.
Where Bexar County stands apart from every other public defender’s office is that it is, according to a recent survey completed by the Texas Indigent Defense Commission, the only one that does not report to the Commissioners Court directly and is not considered a “stand-alone” office. It is also the only office not currently headed by an attorney, whether in the chief public defender position or some comparable supervisory role.
“What is concerning about Bexar County is the fact that there is no chief in place and you have a public defender’s office that is supervised by non-attorneys. That is not what the Fair Defense Act intends,” said Kathryn Kase, executive director of the Texas Defender Project and former reporter for the San Antonio Light. “I’m sure that that seems incomprehensible to non-lawyers,” Kase continued, “but under the code of ethics that governs lawyers, this is really, really important.”
One of the main reasons this irritates attorneys so is attorney-client privilege. “Everything a lawyer learns in context of representation is confidential,” explained Kase on the phone from her Houston office. “You don’t want random people from the county being able to walk in and look at files. There was this idea that you would have a chief public defender so that you could protect those files and insulate them from political storms … especially in the context of controversial cases.” Miller and Dulany have separately raised concerns about the privacy of the files located in the Bexar County Public Defender’s Office. Dulany noted that there was no central filing system when he arrived, and in Lori’s Manifesto, Miller mentions an incident when a county employee accessed her locked office and went through client mail without her authorization.
While the Fair Defense Act set up the Texas Indigent Defense Commission to oversee counties’ compliance with the Act, the Texas Fair Defense Project website notes, “Although the FDA has greatly improved access to counsel for many people accused of crimes, the law provides few mechanisms for holding counties and judges accountable for following the procedures laid out in their own indigent defense plans.”
The TIDC has been aware of Bexar County’s lack of a public defender for years, claimed Angela Moore. “They chose not to get involved with local control,” she said. TIDC received a copy of Lori’s Manifesto, which was remarked upon during a June 27, 2013, meeting of TIDC’s Policies and Standards Committee. In the minutes, it was noted that Wesley Shackleford, Deputy Director of the TIDC, met in mid-June with Lozito to discuss the letter. At that time, “[Lozito] indicated the County was strongly considering hiring a chief public defender to head the office.”
In early December, just after his conflict of interest motion to withdraw was granted, Dulany made the TIDC aware of it, according to an internal TIDC agenda for a Policies and Standards Committee meeting that was to be held in January of this year. The agenda provided for a detailed discussion of Bexar County’s organization including the continued lack of a chief public defender, the perceived conflict of interest and the office’s inability to “standalone” instead of being folded into Judicial Services. However, the meeting was cancelled due to bad weather in Austin and never rescheduled. Instead, the TIDC’s executive director Jim Bethke, appointed by Governor Rick Perry, traveled to San Antonio and met with Lozito and other county administrators, but no employees of the Public Defender’s Office. Shortly thereafter it was announced that the Public Defender’s Office would be moved to Mental Health, apparently to remove the conflict of interest.
In an interview, Lozito said they planned to post the chief public defender job description sometime in June or July of this year, but could give no definite deadline for posting or hiring. While the position has been funded off and on for the past few years, it has never been filled, and its last posting occurred on the County’s internal website and was only up for a week over the Thanksgiving holiday before being abruptly taken down at the suggestion of both Robbins and Dulany, who, although both applied for the job, felt a broader national search would be more appropriate.
Shackelford, of the TIDC, knows that there has not been a chief public defender in place for three years. He also acknowledges that, “it is a required element of the code of criminal procedure.” When asked what the TIDC might do if Bexar County continued to go chief-less, he said “it’s never come up, that was at least part of the discussion that might have come up in the Standards and Policies meeting, that if there hadn’t been any progress, what would the commission’s response be?”
According to Lozito and Smith, the chief position went unfilled due to a general uncertainty about the office. After Moore resigned “there was a question of keeping the Appellate Public Defender’s Office,” said Lozito, so the position was removed from the following fiscal year’s budget and in turn helped to fund Miller’s position as senior assistant appellate public defender. “I had all the legal responsibility associated with being the lead attorney on the cases, but apparently no authority over decisions pertaining to the Office personnel, nor any say in the operational aspects of the office,” Miller wrote in her manifesto. When Miller resigned in May 2013, her position was removed and the chief position was reinstated in the following budget.
Lozito said he did not want to hire a specialized appellate chief public defender if the office would eventually be expanded and require a chief with a broader background. “To me, that would be a lot of inefficiency and bad feelings,” said Lozito about navigating a hypothetical situation in which a newly appointed chief appellate public defender would need to resign or have their position downgraded after the expansion of the office.
“We made attempts to do these things, but we wanted to make sure we were doing them right,” he said of the delay in hiring the chief.
Lozito and Bexar County now, after three years of hemming and hawing, appear ready to move on expanding the Public Defender’s Office. The proposal they submitted to the TIDC for a discretionary grant (the first application for any grant funding beyond TIDC’s annual formula grant since Moore’s departure) states the issue as one of economics. The grant, prepared by Lozito and grants manager Allen Castro, lists the “problem statement” as such: “… Bexar County spent $3.1 million on indigent defense in FY 2001, By FY 2013, the cost had nearly tripled to $9.1 million … Unfortunately, there is no evidence to suggest that the quality or cost-effectiveness of the system has improved even though the cost has nearly tripled.” The application points out that a 2005 study by the TIDC found that for misdemeanors, the cost per case was $119 for a public defender versus $155 for court-appointed counsel, without a perceived drop in quality. The problem statement concludes “this is precisely what Bexar County needs: quality and budget predictability.”
To that end, the grant will finance two misdemeanor trial public defenders for one county court-at-law to provide public defender services to 1,000 misdemeanants per year. This is a puzzling limit to set since national guidelines limit misdemeanor caseloads per attorney to 400 per year. It will also fund an additional mental health defender, expected to take on the annual limit of 200 cases per year. The program will also “collect data and other information to provide county and court officials with the ability to monitor the performance of the Trial Division,” although it doesn’t describe who these officials might be.
Neither Robbins nor Dulany were consulted about the grant. Barlow Fisher also claimed that the oversight board was not consulted and was skeptical of the judiciary's involvement. “I was disappointed a couple weeks ago about the pilot program,” she said. “There were no details; that makes me think that it’s not being well thought out. It’s certainly not [reflecting] the advice, consideration and inclusion of the judiciary.”
What has begun to frustrate indigent defense specialists familiar with Bexar County is that, not too far east down I-10, a very good model for a public defender’s office does exist. The Harris County Public Defender’s Office, which serves the bulk of Houston’s population, started in 2010 with Alex Bunin, who previously opened federal public defender offices in Alabama and New York. Bunin is now the chief of an office that encompasses the entire 13th floor of Harris County’s criminal justice building. It’s governed by an oversight board that includes not only two county commissioners, a presiding judge and attorneys, but also community stakeholders (faith leaders in Houston’s African-American community have been particularly vocal about the city’s indigent defense issues) and law professors. As the head of the department, Bunin can hire and fire attorneys, submit the department’s budget and manage its costs.
“I don’t have perfect independence,” he admitted in a phone interview, “but the person making decisions for the public defender’s office needs to be a lawyer … when my lawyers need an expert witness, I’m making [that] financial decision on behalf of the organization ... I don’t think a non-attorney can do that.”
He said that while his office is “unusual in that everything here worked,” Bexar County’s Public Defender’s office is “pretty indicative of what’s going on in Texas,” which is to say, it still has a ways to go in terms of meeting the needs of the indigent.
To Kase, an ideal Bexar County public defender’s office would “look a lot larger. First of all, it would have a chief public defender, it would comply with the Fair Defense Act, it would cover more courts and it would cover more types of courts.” She continued, “does it have to occur all at once? Heck no, in Harris County, the public defender’s office was staffed up over a period of years.” In order to do this effectively, Kase recommended that, “there needs to be some comprehensive thinking by a core group in the community. It shouldn’t just be County executives worrying about this.”
But, the May 6 Commissioners Court meeting in which the commissioners considered the grant application for the public defender "pilot program," indicated that “comprehensive thinking by a core group in the community” bore little resemblance to how this most current iteration of the Public Defender’s Office was conceived.
For starters, it’s apparent that the only judge who has thus far bought into the program is Scott Roberts, a Republican whose court specializes in mental health cases but handles other misdemeanors as well. Roberts will likely benefit from the additional mental health public defender provided by this grant. But what of the two additional public defenders? Would Roberts, who is up for re-election this November, essentially have four of six public defenders dedicated to his court? In Court, Commissioner Chico Rodriguez repeatedly asked what would happen to the entire pilot program if Roberts continued to be the only judge signed on and then lost his election in November. “If there's no judges participating in these programs, [the public defenders] won't have any work to do,” said Smith, “So my answer to that would be the pilot program is over …”
Smith’s role also seems problematic as currently envisioned. He told commissioners that, in the search for the chief public defender, he would work with each judge who elected to be part of the pilot program to “make a consensus hire for the chief public defender.” However, in the portion of Texas’ Code of Criminal Procedure that governs Public Defenders, the only supervising entities mentioned are the commissioners court or an optional oversight board.
Bob Featherstone, the newly appointed president of the San Antonio Criminal Defense Lawyers Association, said as much as the only person other than Lozito and Smith to speak on the matter in Commissioners Court. “We view with concern the establishment of a public defender's office,” he told the commissioners. “We don't oppose it, but we are concerned with transparency, open government and compliance with the law with respect to the establishment of this office,” he said, citing the Code of Criminal Procedure statutes.
Smith, however, clearly sees his mandate as directly serving the Commissioners Court and having the authority to appoint and manage the chief public defender. “There aren't that many counties that have county managers to be honest with you,” said Smith in reply to a question posed by Judge Nelson Wolff as to whom the public defenders currently report to. “Since I act on your behalf in matters of employment and such, I would think this would be an extension of that.” However, an Express-News article from 2011 noted that many urban counties, such as Harris and Dallas, have the equivalent of a county manager. Yet both those counties have chief public defenders that report directly to the Commissioners Court and/or an oversight board, without a “middleman.”
In an interview, Smith clarified that, under the currently proposed arrangement, the chief public defender would, “report straight to [him].” For Barlow Fischer, however, “I think the problem here is the middleman. [The code] doesn’t say they can delegate to the county manager, or a department of a department of a department.”
After that Commissioners Court meeting, Dulany started to alert people beyond the TIDC about his issues with the Bexar County’s Public Defender’s Office. One person who’s now keeping an eye on the Public Defender’s Office is State representative Ruth Jones McClendon (D-San Antonio), a fierce criminal justice advocate, who wrote in an email “One of my most important goals as a legislator is to help prevent innocent persons from being convicted and sent to jail or prison. So, I am naturally interested in learning more about how Bexar County's public defender system impacts defendants who are indigent. I want to be informed and prepared to do whatever I can as a state Legislator to be a helpful advocate for the needs of Bexar County and the best interests of indigent persons who might need criminal defense counsel.”
The grant application, which was discussed almost purely as a function of saving the County money (indigent defense is paid for by TIDC grants, which are in turn based off of court fees, as well as one cent of the county tax), did not address hiring a chief public defender or the office’s independence.
And, without the buy-in of other judges, the plan seems unlikely to expand beyond Roberts’ court.
The alternative could be to shut down the Public Defender’s Office all together and revert back to a court-appointed system entirely, which is not only more expensive, but also can be less effective. One Harvard Institute of Quantitative Social Sciences study from 2007 found that public defenders were less expensive and slightly less likely to lose cases, but also handled cases more expediently and secured shorter punishments for clients that did get convicted.
“You shut us down [and] nobody is there,” said Dulany. And that would be too bad, because Robbins and Dulany are well respected in the legal community. “He was beyond helpful,” said local criminal defense attorney Jaime Aldape, who has consulted with Dulany on his own court-appointed appeals work. “He really went out of his way and he didn’t have to do that, to be honest. I work a lot throughout Texas, and not everyone is that nice,” said Aldape.
“We’re also filling a Constitutional obligation,” Dulany said of indigent defense work, “you can’t just wish it away.”
After weeks of research, this reporter could find no evidence that Bexar County is exceptionally different from the other Texas counties that manage to run public defender offices reasonably well. However, it has proven exceptionally hard for the County to conceive of a workable system, including a 2010 task force on the issue. “The big picture is, we’ve tried every other alternative except a trial public defender’s office,” said Smith. “This is the last thing we can do on the criminal side.”
Perhaps here it’s worth pausing to reflect on the basic premise of the American criminal justice system: you are innocent until proven guilty, and defendants are entitled to a fair trial, not just a really cheap trial or a quick plea bargain. When one part of that system breaks down, it tilts the scales of justice. When at least 60 percent of all defendants are potentially subject to representation that doesn’t follow state law, amid the protests of attorneys and judges alike, the scales seem in danger of becoming profoundly out-of-whack. As Bunin noted, “You can’t really put a price on justice, which is what everybody wants.”
Bexar County owes it to justice to get it right this time.