By Sen. Rodney Ellis
Imagine a baseball game in which the umpire also happened to be the manager of one of the teams. Absurd, right? Yet something very much like that scenario plays out in many Texas courtrooms every day.
When a person charged with a crime cannot afford to hire a lawyer, the Sixth Amendment of the United States Constitution requires that an attorney be appointed to protect the rights of the accused. In most Texas counties, judges control the appointment of these attorneys. They decide who is eligible and control how much the lawyers will be paid. Judges even have a responsibility for making sure the defenders do their job appropriately, even though they only see a sliver of the attorney’s job performance in the courtroom.
While they do their best, it is not hard to see that judges already have a full plate without having to supervise the performance of one half of our adversarial system. This is one big reason the American Bar Association’s first principle for public defense says that “the public defense function, including the selection, funding, and payment of defense counsel, is independent.”
Travis County is poised to start a new system which promises to not only make indigent defense more independent of the judiciary, but also to add a level of management, quality monitoring, and professional development that has not been part of the system before. With the help of a grant from the Texas Indigent Defense Commission, the county will implement a “managed assigned counsel” program, in which a non-profit criminal defense organization will coordinate and provide criminal defense services to poor defendants. The program will work with the two existing public defender offices in Travis County, specializing in juvenile cases and representation of persons with mental illness, and provide defense for all other appointed cases.
As a result, 100 percent of the county’s indigent defense appointments will be handled through an independent, professionally-managed defender organization – a first in Texas. The Travis County judges, court personnel, and defense bar are to be congratulated for taking the initiative to hammer out a plan that will benefit the county’s entire justice system.
Managed assigned counsel programs, patterned on a successful private defender program in San Mateo, California, are a relatively new option for Texas counties that rely on private attorneys to provide indigent defense services. The program recognizes the benefits of independence from the judiciary and the need for more proactive coordination and management.
Some of the program’s biggest boosters are judges, who are pleased to be relieved of the somewhat awkward responsibility for coordinating defense services, which for many is a distraction from their core responsibilities. With the defense under judicial control, the biggest concern is not that the defense gets any advantage, but rather that there is pressure on the defense to do what is in the interest of the courts (such as move cases quickly) as opposed to what is in the interests of their clients (which may create more work for the courts). The traditional system creates a complex web of incentives which needlessly complicates, and sometimes compromises, the practice of criminal defense.
While the benefits are many, the implementation of this new program will have to remain true to the ideals of better justice from which it came. The new structure alone will not elevate the quality of services provided. That will take effective management, sufficient resources, and a willingness to hold lawyers to a high standard of professionalism.
While the system needs to make sure that it invests in the attorneys providing this important service for the county, we must focus on the fact that it does not exist for the lawyers first and foremost, but rather to protect the rights of the indigent accused. Too often, poor defendants in Texas have been victims of the “meet ‘em and plead ’em” variety of defense. An effective defense requires client communication, investigation of the facts, and zealous advocacy for the best outcome possible for the client.
While these things will not automatically follow from the new management system, there is now the best opportunity ever to ensure that every accused person, no matter how poor, is represented with the professionalism that is appropriate to our ideals of fairness and justice.