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

1. 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

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

3. Council of State Governments (CSG)

4. Texas Fair Defense Act Requirements and Metrics Institute a fair, neutral, and non-discriminatory attorney selection process Independence and Fairness Conduct magistrate proceedings promptly Promptness in Appointments 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 Qualifications and Quality Ensure same attorney continuously represents the client until completion of the case Require defense counsel to attend relevant continuing legal education

5. Interim Reports 2012-2013

6. Final Report September 2013 The PD Office Add Significant Value to Harris County Office operations meets national quality principles 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 PD adds a defense perspective to systemic planning discussion

7. Overview Process and Quality Review Outcomes Recommendations

8. Independence HC Public Defender Board Sept. 1, 2010HC Public Defender Board Created Convene regularly, seem engaged and supportive Dec. 6, 2010Chief Public Defender Alex Bunin First Day Hired experienced public defender to head office Adopted appropriate legal and staff job descriptions Jan. 31, 2011Office Opened Office became operational in a timely manner Dec. 1, 2011Office Fully Operational

9. Structure of PD Office Fully staffed operational budget of approximately $8.1 million in 2013 Number of attorneys = 37

10. Quality Controls Office Standards Experience and Training Continuous representation of cases Office following State Bar’s Performance Guidelines for Non-Capital Criminal Defense Representation Performance and personnel evaluation protocols Case Management System Parity with District Attorney’s Salaries Computerized records Ability to track time spend on cases to calculate workloads Salary maximum consistent with DA office

11. Monitoring Workload is a Key to Quality Felony Cases 150 MH Misdemeanor Cases Maximum Annual Caseload per National Standards 350 Juvenile Cases 200 Appellate Cases 25 *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.

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

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

14. PD Investigation Support Significant and Impactful Expenditures on Investigation Time FY 2012 Proportion of Investigator Time by Outcomes in Felony Cases PD Office$534,174 3,950 Cases$135 per case Assigned Counsel System$874,638 67,530 Cases $13 per case 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

15. PD Office Handling More Serious Felony Cases HCPD is defending a relatively higher proportion of aggravated felonies and sexual abuse of child 19% Of new murder filings were assigned to the HCPD between October 2011 and July 2013

16. PD Handling “High Utilizer” MH Cases MH Volume in Harris County Jail Algorithm Selection of Most Severe/High Utilizers for HCPD Appointment 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. August 2012 to September 201310,413 with “special needs sheet” HCPD Appointed Lawyer1,401

17. Overview Process and Quality Review Outcomes Recommendations

18. Comparative Analysis of Client Case Outcomes MH Misdemeanor Clients Felony Clients Cases Met MH Selection Algorithm Cases Match Along Offense and Demographics Variables OutcomesMH Specialized Counsel 28 Clientsvs. PD MH Division 354 Clientsvs.Regular Assigned Counsel 120 Clients OutcomesPD Counsel 1,431 Clientsvs. Assigned Counsel 1,539 Clientsvs.Private Counsel 1,632 Clients No comparison was possible for juvenile cases due to lack of access to needed data

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 MH Trained Assigned Counsel HCPD Assigned Counsel 6% 7% 27%

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 Assigned Counsel HCPD Dismissals 17% 11% Deferred 21% 17% Acquittals 0.3% 0.1% Guilty 61% 72%

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 Appointed Counsel HCPD Assigned Counsel 19% 15% 23%

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).

23. Overview Process and Quality Review Outcomes Recommendations

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

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

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 advocacyand other advice for the larger criminal defense bar, and ability to work on systemic issues

27. Thank You Dr. Tony Fabelo Research Director tfabelo@csg.org Carl Reynolds Senior Legal and Policy Advisor creynolds@csg.org Jessy Tyler Research Manager jtyler@csg.org 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.