improving indigent defense: evaluation of the harris county public defender tony fabelo, ph.d. carl...
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Improving Indigent Defense: Evaluation of the Harris County Public Defender
Tony Fabelo, Ph.D.Carl ReynoldsJessy Tyler
Justice Center, Research Division Austin, Texas
October 2013
Council of State Governments Justice Center | 2
Justice Center of the Council of State Governments
• National non-profit, non-partisan membership association of state government officials
• Engages members of all three branches of state government
• Justice Center provides practical, nonpartisan advice informed by the best available evidence
Council of State Governments Justice Center | 3
Council of State Governments (CSG)
Council of State Governments Justice Center | 4
Texas Fair Defense Act Requirements and Metrics
Institute a fair, neutral, and non-discriminatory attorney selection process
Conduct magistrate proceedings promptly
Screen for and determine eligibility pursuant an adopted standard
Appoint counsel promptly for those that qualify
Ensure counsel’s qualifications, ability, and experience match the complexity of the case
Pay counsel pursuant to the attorney fee schedule adopted in the local plan
Ensure same attorney continuously represents the client until completion of the case
Require defense counsel to attend relevant continuing legal education
Independence and Fairness
Promptness in Appointments
Qualifications and Quality
Council of State Governments Justice Center | 5
Interim Reports 2012-2013
Council of State Governments Justice Center | 6
Final Report September 2013
The PD Office Add Significant Value to Harris County
PD produces better defense outcomes than assigned counsel for similar cases
tracked in study
PD provides previously unavailable defense services such as training,
mentoring and advice
Office operations meets national quality principles
PD adds a defense perspective to systemic planning discussion
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Overview
Process and Quality Review
Outcomes
Recommendations
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Independence
HC Public Defender Board
Convene regularly, seem engaged and supportive
Adopted appropriate legal and staff job descriptions
Hired experienced public defender to head office
Office became operational in a timely manner
Sept. 1, 2010HC Public Defender Board Created
Dec. 6, 2010Chief Public Defender Alex Bunin First Day
Jan. 31, 2011Office Opened
Dec. 1, 2011Office Fully Operational
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Structure of PD Office
Number of attorneys = 37
Fully staffed operational budget of approximately $8.1 million in 2013
Chief Public Defender
Investigators (3)
Division Chief (1)
Attorneys (11) Attorneys (10)
Division Chief (1)
Investigator (1)
Division Chief (1)
Attorneys (7)
Case Manager (1)
Case Clerk (1)
Receptionist (1)
HR Coordinator (1)
Administrative Officer (1)
Administrative Assistant (1)
Legal & Policy Analyst (1)
IT Admin (1)
Systems Tech (1)
Appellate Division Juvenile Division Administration
Special Counsel (1)
Attorneys (4)
Social Workers (3)
Mental Health Division
Investigator (1)
Felony Trial Division
Council of State Governments Justice Center | 10
Quality Controls
Parity with District Attorney’s Salaries
Salary maximum consistent with DA office
Experience and Training
Office following State Bar’s Performance Guidelines for
Non-Capital Criminal Defense Representation
Continuous representation of cases
Office Standards
Performance and personnel evaluation protocols
Case Management System
Computerized records
Ability to track time spend on cases to calculate
workloads
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*HCPD represents mental health misdemeanors, which have an NAC caseload standard of 350 per attorney. The HCPD takes on every case with meeting selection criteria, so there are no cases of this type going to the appointed counsel.
Monitoring Workload is a Key to Quality
Maximum Annual Caseload per National Standards
Felony Cases
150
Juvenile Cases
200
MH Misdemeanor Cases
350
Appellate Cases
25
Council of State Governments Justice Center | 12
Felony Workload in Assigned Counsel System Significantly Higher than PD Office
The figure below shows the number of cases that were paid in the Harris County felony assigned counsel system, for 255 attorneys and 20,847 cases, with a
demarcation showing the National Advisory Committee (“NAC”) standard of 150 cases
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Workload Standards Are Not in Place for Assigned Counsel System
For felony cases 45% of the assigned counsel caseloads exceeds the National Advisory Commission (NAC) “standard” of 150
felonies, which does not account for private cases
For misdemeanors the top 10 percent of attorneys received over 452 cases in a year (with an average of 632 and the highest at
952 cases) exceeding the national standard of 400
For juvenile cases, twelve attorneys had more than the NAC standard of 200 juvenile cases, with an average of 327 cases per
attorney, which does not account for CPS cases
Council of State Governments Justice Center | 14
PD Investigation Support Significant and Impactful
Expenditures on Investigation Time
FY 2012
PD Office$534,174
3,950 Cases$135 per case
Assigned Counsel System$874,638
67,530 Cases $13 per case
Proportion of Investigator Time by Outcomes in Felony Cases
More investigation time relates to ability to dismiss or no bill a case
Misd35,529 Cases22¢ per case
Felony24,578 Cases$34 per case
Juvenile4,723 Cases
$4.21 per case
Council of State Governments Justice Center | 15
PD Office Handling More Serious Felony Cases
HCPD is defending a relatively higher
proportion of aggravated felonies and sexual abuse
of child
HCPD All Filed Cases in Harris County
Proportion Represented by
HCPD
Aggravated Assault 435 6,159 7%
Aggravated Robbery 354 3,543 10%
Auto Theft 0 1,092 0%
Burglary 336 4,108 8%
Drug Possession 726 14,068 5%
Drug Sale 239 4,009 6%
DWI 136 2,687 5%
Family Violence Assault 210 3,422 6%
Homicide 12 117 10%
Murder 53 281 19%
Other 943 14,485 7%
Sexual Assault Child 175 1,525 11%
Sexual Asssault Adult 55 868 6%
Theft 440 9,042 5%
Total 4,114 65,406 6%
19%Of new murder filings were assigned to the HCPD between October 2011
and July 2013
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PD Handling “High Utilizer” MH Cases
Algorithm Selection of Most Severe/High Utilizers for HCPD
Appointment
(a) A diagnosis of schizophrenia, bipolar disorder, or major depression, or, (b) having been prescribed psychoactive medications in the current period of
incarceration, or in a past episode; or (c) having been adjudicated incompetent in
the past, or (d) being a ward of the county, i.e. adjudicated incapacitated, or (e)
housed on the mental health unit within the jail.
MH Volume in Harris County Jail
August 2012 to September 201310,413 with “special needs sheet”
HCPD Appointed Lawyer1,401
Council of State Governments Justice Center | 17
Overview
Process and Quality Review
Outcomes
Recommendations
Council of State Governments Justice Center | 18
Comparative Analysis of Client Case Outcomes
MH Misdemeanor Clients
Cases Met MH Selection Algorithm
OutcomesMH Specialized Counsel
28 Clientsvs.
PD MH Division 354 Clients
vs.Regular Assigned Counsel
120 Clients
Felony Clients
Cases Match Along Offense and Demographics Variables
OutcomesPD Counsel
1,431 Clientsvs.
Assigned Counsel1,539 Clients
vs.Private Counsel
1,632 Clients
No comparison was possible for juvenile cases due to lack of access to needed data
Council of State Governments Justice Center | 19
Outcome Analysis for MH Misdemeanors
Misdemeanor dismissals were five times more likely for HCPD clients than for a matched group of similar defendants
with assigned counsel
HCPD Assigned Counsel
27% 6%
MH Trained Assigned Counsel
7%
Council of State Governments Justice Center | 20
Outcome Analysis for Felony Clients
Felony HCPD counsel achieved for clients a greater proportion of dismissals, deferred sentences, and acquittals,
and a smaller proportion of guilty, than assigned counsel
HCPD Assigned Counsel
17% 11%Dismissals
21% 17%Deferred
0.3% 0.1%Acquittals
61% 72%Guilty
Council of State Governments Justice Center | 21
Felony Case Outcome Analysis
Appointed counsel reduced charges for 23 percent of clients, which is more than HCPD and hired attorneys, and
appointed counsel also achieved the fewest dismissals
This suggests that HCPD and retained counsel are more likely to achieve dismissal of weak cases,
where appointed counsel is more likely to plead them down
HCPD Appointed Counsel
19% 15%
Assigned Counsel
23%
Council of State Governments Justice Center | 22
Appellate Division Outcome Analysis
HCPD appellate counsel had a five percent reversal rate (ratio of number of cases reversed to number of cases
heard)
The 1st and 14th Courts of Appeals (in which the Appellate Division practices) average a three per
cent reversal rate in criminal cases (which includes cases outside of Harris County).
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Overview
Process and Quality Review
Outcomes
Recommendations
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Recommendations
Continue to adjust the role of the office within the system, ensuring that the county receives the maximum benefit from the specialized defense presence HCPD provides
Periodically review assignment of cases to encourage courts to assign more complex and/or specialized cases to the office
Improve efforts to quantify time spent on cases, with even greater attention to consistent and full reporting
Time spent on cases is collected as part of case management system but only 39% of records have complete time stamps
and this needs to improve
Council of State Governments Justice Center | 25
Recommendations (continued)
Conduct periodic caseload analysis and evaluate each division’s caseload to determine if can be expanded
First exploratory review of work load data shows the possibility of increasing workload above 150 under certain circumstances
and appropriate mix of cases
The average felony case took 6.5 hours, resulting in a possible annual caseload of 206 cases (1,344 available hours divided by 6.5 hours per case equals 206 cases) instead of the current 150
standard
Justice Center developed a max 100 points caseload system with specific “weights” by type of case that can be used to
monitor and manage caseload yearly
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General Lessons
Quality control leads to better resultsCompetent and diligent representation demands more
effort than minimal per-case or per-docket payment tends to support
More attention is needed to examine the workload or performance of the assigned counsel system
Public Defender Office provides systemic benefits
Targeted expertise such as representation of the mentally ill, successful appellate advocacy and other advice for the
larger criminal defense bar, and ability to work on systemic issues
Council of State Governments Justice Center | 27
Thank YouDr. Tony FabeloResearch [email protected]
Carl ReynoldsSenior Legal and Policy [email protected]
Jessy TylerResearch [email protected]
This material was prepared for Harris County. The presentation was developed by members of the Council of State Governments Justice Center staff. The statements made reflect the views of the authors, and should not be considered the official position of the Justice Center, the members of the Council of State Governments, or the funding agency supporting the work.