Improving Indigent Defense: Evaluation of the Harris County Public Defender Tony Fabelo, Ph.D. Carl Reynolds Jessy 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

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

Council of State Governments Justice Center | 7 Overview Process and Quality Review Outcomes Recommendations

Council of State Governments Justice Center | 8 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, 2010 HC Public Defender Board Created Dec. 6, 2010 Chief Public Defender Alex Bunin First Day Jan. 31, 2011 Office Opened Dec. 1, 2011 Office Fully Operational

Council of State Governments Justice Center | 9 Structure of PD Office Number of attorneys = 37 Fully staffed operational budget of approximately $8.1 million in 2013

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

Council of State Governments Justice Center | 11 *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

Council of State Governments Justice Center | 13 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 Misd 35,529 Cases 22 ¢ per case Felony 24,578 Cases $34 per case Juvenile 4,723 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 Assault4356,1597% Aggravated Robbery3543,54310% Auto Theft01,0920% Burglary3364,1088% Drug Possession72614,0685% Drug Sale2394,0096% DWI1362,6875% Family Violence Assault2103,4226% Homicide % Murder % Other94314,4857% Sexual Assault Child1751,52511% Sexual Asssault Adult558686% Theft4409,0425% Total4,11465,4066% 19% Of new murder filings were assigned to the HCPD between October 2011 and July 2013

Council of State Governments Justice Center | 16 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 ,413 with “special needs sheet” HCPD Appointed Lawyer 1,401

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 Outcomes MH Specialized Counsel 28 Clients vs. PD MH Division 354 Clients vs. Regular Assigned Counsel 120 Clients Felony Clients Cases Match Along Offense and Demographics Variables Outcomes PD Counsel 1,431 Clients vs. Assigned Counsel 1,539 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).

Council of State Governments Justice Center | 23 Overview Process and Quality Review Outcomes Recommendations

Council of State Governments Justice Center | 24 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

Council of State Governments Justice Center | 26 General Lessons Quality control leads to better results Competent 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 You Dr. Tony Fabelo Research Director Carl Reynolds Senior Legal and Policy Advisor Jessy Tyler Research Manager 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.