Texas judges ask out of indigent defense oversight

February 5, 2013


David Carroll


Pleading The Sixth


Pleading the Sixth: In an effort to meet the American Bar Association’s Ten Principles, judges in Travis County, Texas (Austin) created a plan to remove themselves from the oversight and administration of public defense services. Will the proposed “managed assigned counsel” plan become a model for the rest of Texas?

Recognizing that having judges oversee the payment of indigent defense counsel “leads to conflict, disagreement, and dispute which negatively impacts the relationship between judges and lawyers and undermines the respect and dignity which is required in the criminal process,” Travis County, Texas (Austin) has proposed a plan to create a new Office of Managed Assigned Counsel (MAC) that would “reposition the management of the felony and misdemeanor court appointed attorneys from the direct supervision of the Criminal Judges to a Director under the direction of an Indigent Defense Board.”  As first reported in the February 1, 2013, Austin Chronicle, the goal of the MAC plan is to bring Travis County into compliance with the American Bar Association, Ten Principles of a Public Defense Delivery System and to become a model for the rest of the state.

As the Sixth Amendment Center has written before, independence is the preeminent need of every indigent defense system because without it, most of the other ABA Principles are unobtainable.  That is, fearing the loss of income by not pleasing the judge who hired them, public defense counsel will take on more cases than they can ethically handle (in violation of Principle 5), will delay working on a case (in violation of Principle 3), will triage their hours available in favor of some clients, but to the detriment of others, thereby failing to meet the parameters of ethical representation owed to all clients (Principle 10), and will agree to work under low-bid, flat fee contracts (Principle 8).

The Travis County plan inherently recognizes this fact.  In particular, the plan notes that “one of the areas of greatest concerns for the Travis County Judiciary,” is that it is “extremely difficult” for a judge to meet ABA Principle 10’s call for defense attorneys to be systematically reviewed against performance standards without the judges “engaging in advocacy in individual cases.” Moreover, judges’ have their own administrative duties and dockets to cover, making it impossible to supervise the “approximately 250 attorneys on the court appointed list.”  According to the Travis County judges, the current system of judicial oversight results in little “significant quality control and oversight” to the point where “there may be defendants who are receiving services that are below a standard acceptable to the citizens of Travis County.”

The plan calls for a board to hire a director and a staff of five to manage the assigned counsel system at an estimated cost of $518,594.00.  The board and director would, among others duties: a) establish performance criteria for attorneys, investigators and experts; establish indigency criteria; and create standards for approving attorneys, investigators, and experts to be on the roster of eligible professionals serving indigent defendants. And to meet the requirement to have attorneys appointed early in the life of a case (ABA Principle 3), the judges’ plan calls for all attorneys to contact each new client within one day of receiving an appointment and holding a client interview within three days of notification of appointment.

As promising as this all is, there is one critical flaw to the plan: the proposed oversight board is not truly independent. The footnotes to Principle 1 of the ABA Ten Principles reference the National Study Commission on Defense Services’ Guidelines for Legal Defense Systems in the United States (1976).  The Guidelines were created in consultation with the United States Department of Justice (DOJ) under a DOJ Law Enforcement Assistance Administration (LEAA) grant. Guideline 2.10 (The Defender Commission) states that, to avoid conflicts of interests, an indigent defense commission should not include sitting judges. The Travis County plan calls for a seven-person board comprised of “two district judges, one county court of law judge, one Commissioner, the County Executive of Justice and Public Safety, the President of the Criminal Section of the Austin Bar, and the President of the Austin Criminal Defense Lawyers Association.” As one judge noted in the Austin Chronicle, if one of the goals of the plan is for judges to do their jobs “without even the appearance of impropriety,” the proposed make-up of the MAC Board could undermine that reasonable aim.

Fortunately, the Travis County judiciary has developed a plan to solicit feedback before moving ahead with the plan. There will be a series of meetings held between February and May of 2013 with criminal justice stakeholders and criminal defense attorneys in anticipation of putting in a grant to the Texas Indigent Defense Commission to help defray the initial costs. If all moves forward according to plans, the new Travis County Office of Managed Assigned Counsel would begin operations in 2015.  The 6AC will keep you posted on its progress.