Buddy, can you spare some time?

Recently a member of the Harris County defense bar penned an article taking a critical look at public defenders' offices. And, somewhat predictably, those employed by the Public Defender's Office were up in arms about the perception that indigent defendants might not be getting the legal representation they deserve.

Clay Conrad wrote that public defenders are too overworked to provide the level of representation called for. Mr. Conrad points out that the main problem facing public defenders is caseloads that are too heavy.

Overloaded defenders are forced to triage, exchanging quick pleas in some cases for the ability to fight in others. They have to decide which cases will benefit from extra attention and which will not. Cases are "pied out" without time to conduct a real investigation, interview witnesses, or even determine whether there are grounds to challenge the police version of the facts.

Per ABA Guidelines, attorneys should not handle more than 150 felonies a year. But what does it mean to handle that many felony cases a year? That works out to three felony cases a week -- each and every week. Assuming a 40-hour work week, that means just 13 hours per case. That thirteen hours includes court time, jail visits, witness interviews, research and motion drafting. It doesn't take into account trial prep and trying cases. It also doesn't take into account meetings, continuing education, lunch, vacation and sick time.

Does that sound like enough time to handle a case adequately?

The lack of time to work a case puts pressure on everyone to dispose of other cases as quickly as possible. Which cases just get the "once over" and which cases get further work? How are those decisions made? Whose lives are affected because there aren't enough hours in the day?

But it is not always easy to know which cases are the hopeless ones if all you do is read the offense report and spend a few minutes talking to the defendant and the prosecutor. Without putting in the time required to investigate the facts, the law, and the witnesses, it is unethical to recommend that a client accept a plea bargain. Maybe the offer represents the best possible result, but maybe the client is completely innocent and just too frightened to disagree.

I know many of the lawyers in the Harris County Public Defenders' Office and they are very good at what they do. They care and they want to make a difference. But idealism and energy can't make up for lack of time and money.

What happens when Harris County decides it's time to cut the budget? Indigent defendants aren't a large voting bloc in Harris County. Trim a little here. Cut a little there. At some point the ABA Guidelines will be tossed aside in the name of keeping the operation within its allotted budget. At some point there will be pressure to "work out" more cases in order to keep costs down.

It's hard to serve two masters.

Let's make a deal

I ran across this tasty morsel on a listserv to which I subscribe...

A fellow lawyer advised me today a district attorney offered to dismiss his client's case if the lawyer would waive his court appointed attorney fees. Lawyer has put in a lot of time and energy on the case. Lawyer feels like he has been put in a bad spot by the district attorney and doesn't know what to handle this. 

Any suggestions?

Here's a suggestion. File an ethics complaint against both the prosecutor who made the "offer" and the district attorney. By making such an "offer," the prosecutor is violating his ethical duty to see that justice is done. If the case deserves to be dismissed, the case should be dismissed. End of story.

Would this prosecutor have made the same "offer" to the attorney if it were a retained case? If, as I suppose, the answer would be no, then you have an argument that the prosecutor and, by extension, the district attorney are violating the Equal Protection clause of the 14th Amendment as the indigent client is being discriminated against because of his economic status.

Such actions also violate a persons's 5th and 6th Amendment right to counsel. By placing such an "offer" on the table, the prosecutor is creating a disincentive for attorneys to accept appointed cases in that county. If the competent and experienced attorneys refuse to accept court appointments, the right to counsel becomes a hollow promise.

Maybe the district attorney should take a closer look at the cases the office chooses to prosecute. Maybe the weak cases need to be cast aside. Trying to balance the county's budget on the backs of indigent defendants is just plain wrong.

Keeping the prosecutor who made the offer on the county payroll is just as wrong. Hell, allowing him to continue practicing law is wrong.

At what point does a budget crisis morph into a constitutional crisis?

According to an article in this week's Texas Lawyer, the bickering between Demopublicans and Republicrats over funding the federal government has put a stop to the payment of vouchers for attorneys taking appointments in federal court.

"Notices prominently displayed on the websites for the Northern District of Texas and the Western District of Texas let lawyers know that the two-week continuing resolution President Barack Obama signed into law extends federal funding until March 18, 2011, but it only provides enough funding to pay for vouchers that were processed but not paid during a recent suspension. 

The government will be unable to pay vouchers received after March 7, 2011. the notices on the Northern and Western Districts state that 'all vouchers that are submitted will be paid when funding is available.'"

At what point does this funding crisis infringe upon an indigent defendant's right to appointed counsel? At what point to private attorneys decide not to take on new federal appointments because of the uncertainty of getting paid?

"There is no doubt in my mind that this development will discourage criminal defense attorneys from accepting criminal appointments in the federal justice system going forward. We have overhead, we have staff, we have rent, we have families, we have health insurance, and to ask a private practitioner to forgo payments for services rendered for an indefinite period of time is untenable." -- David Finn, Dallas criminal defense attorney

The federal courts rely on private attorneys to take on cases so that the federal public defenders aren't swamped with too many cases. Without private attorneys willing to take on federal appointments, los federales would have to increase the number of public defenders -- something that is more costly than doling out cases to private attorneys.

Of course it doesn't help that there is no effective lobby for indigent defendants across this country. My guess is that, give a choice, most Americans would cut back on funding for indigent defense before cutting back on any programs near and dear to their hearts.

But this isn't just politics as usual. We're talking about our Sixth Amendment right to counsel - a right that belongs to all of us, regardless of our economic or social status.