Travis County Revisits Creating Public Defenders’ Office

Legal panel ponders questions pondered many times before

Judging from Monday night’s “conversation” about the possibility of creating a Travis County Public Defenders’ Office, the myriad stakeholders still want to make progress toward that goal – and even managed to agree that any such office must be “adequately” funded. How to get from here to there … remains to be determined.

(l-r) Brian McGiverin, Sarah Eckhardt, Geoff Burkhart, Andy Casey, Darwin Hamilton (Photo by Michael King)

The Carver Library forum, sponsored by the Travis County Democratic Party, the Black Austin Democrats, and the University Democrats, spent a couple of hours going over the very basic details of what needs to happen – and what it would likely cost – to lay the groundwork for a new PD office. The multi-party sponsorship, the multi-panelist conversation, and the considerable attendance of current courthouse players, suggested both that (to borrow a phrase from Albert King) everybody wants to get to heaven … but nobody is yet eagerly volunteering to endure the necessary transition.

A drumbeat that ran through the evening’s remarks was sounded early by Geoff Burkhart, executive director of the Texas Indigent Defense Commission: “The key is money.” On that score, at least, there was no disagreement in the room.

In addition to Burkhart, the sizable panel included Travis County Judge Sarah Eckhardt, Andy Casey of the Austin Criminal Defense Lawyers Association, Amanda Woog of the Texas Fair Defense Project (who has chaired the county’s indigent defense work group), Judge Elisabeth Earle, Darwin Hamilton of Grassroots Leadership, and Roger Jefferies*, the justice and public safety executive for Travis County.

Add to that list Craig Moore, president of BAD, who handled the introduction, peripatetic civil rights attorney Brian McGiverin, who emceed the conversation, and TCDP Chair Dyana Limon-Mercado, who managed the audience Q&A, and you could be forgiven for anticipating a bold-faced name pile-on. Somewhat surprisingly, everybody on the panel managed to make a couple of useful contributions, and the audience of mostly legal professionals got in a few shots as well.

McGiverin began with Woog, who summarized the national research on PD offices. She said it reflected “major differences in outcomes for defendants” when compared to court-appointed private lawyers, including better outcome conviction rates, total sentencing, days in jail pre-trial: “About everywhere you look, a public defenders office could have an impact that could improve outcomes.” She also deplored the “weird perverse incentive” of Travis County’s current system of flat fees for assigned defense attorneys: that is, the more they work for a particular defendant, the less money they will earn overall.

There was some pushback from Casey about the state of the research – he said the studies (“talking about the systems, not the attorneys”) do not always control for either the full circumstances of the defendants nor for the quality of the attorneys. But he reiterated Burkhart’s argument — “The money is not sufficient, but it is necessary” in at least supporting the intention of adding a PD office to the county’s current system. The goal generally mentioned, and reiterated by Eckhardt Monday night, is for 30% of felony and misdemeanor cases to be handled by public defenders.

That would leave the other 70% to be defended elsewhere, presumably either by private attorneys (for defendants who can afford them) or the existing Capital Area Private Defender Service, whose almost-acronym "CAPS" was thrown around quite a bit. The common lingo reflected both the many inside players in the room and the concern by some that turning towards official public defenders would indirectly leave CAPS holding an increasingly empty bag.

But even Casey – whose ACDLA membership has been very skittish about this entire project – insisted that creating a PD office did not mean CAPS would be undermined, and Eckhardt used much of her time reiterating that the most important current need is for the various stakeholders not to “throw each other under the bus” or “villainize one another” while trying to come up with a plan.

Eckhardt noted that Travis County has been “sneaking up on a public defenders network” for many years, and already has four such structures in place: for juveniles, parent and child representation on the Child Protective Services docket, and for mental health misdemeanor cases. She suggested that experience supports the notion that an institutional structure provides an “anchor,” training, and mentorship for attorneys working in indigent defense, along with the obvious benefits of a steady job rather than a freelance, flat fee for disconnected representation.

That thread ran through the discussion, with much rhetorical support, although it’s not clear if there is really a consensus to move forward with any consistency (Eckhardt estimated at least five years for such a program to get on its feet). The county has already requested and received an extension from the Indigent Defense Commission for a 2019 grant application, a necessary first step, and even the size of the panel reflected the tip of the iceberg of all the groups with an interest that don’t necessarily agree on the final goal.

The conversation was brought much closer to the human ground by two personal tales, the first by Hamilton and then another by Eckhardt herself. Hamilton, who now works for the state, recounted his experience facing a serious drug charge in the early Nineties, defended by a court-appointed attorney who had never defended a drug case. The prosecutor, Hamilton said, told the court that because Hamilton was “articulate,” it made him “more dangerous.” Later, Hamilton said, that prosecutor became a judge and is now a practicing defense attorney.

Hamilton told the abbreviated story, he said, to highlight the “implicit bias” in the judicial system against poor people, especially those of color like himself – and to remind the room of “things that a level of privilege will not allow you to see.” He was the only person of color on the panel, and he told the assembled room, including many legal professionals, “We have to hold you accountable.”

A bit later, Eckhardt told the story of her young, mentally ill nephew, who during a psychotic breakdown committed serious felonies in three states. She said he had received good representation from both a public defender and private attorney, although they couldn’t avoid his final acceptance of a 14-year sentence in California. For her, the story provided another premise for the people in the room to work together in good faith to arrive at better solutions and better indigent defense. “We need your help,” she told the audience, in determining “how we find the appropriate balance to provide adequate defense for every Travis County resident.”

In passing, Eckhardt decried “the state of county politics” as having recently prevented the merger of the District Attorney and County Attorney offices, which she said would have provided major savings. Nobody took her up on that challenge, but there were minds both on the panel and in the audience who were definitely of a different opinion. Eckhardt and Jefferies sketched out the financial issues underlying the PD proposal – she estimated the current spending on indigent defense at $12.5 million (about half what is spent on prosecution) and that a PD office would require another $9 million (still not matching the prosecution resources).

Eckhardt also noted that the Texas Senate had just voted to impose a 3.5% annual property tax cap on local jurisdictions. She said should it be ratified by the entire Legislature, Travis County would likely be in the position of having to go to the voters on virtually any new program expenditures – like funding for indigent defense.

When McGiverin opened the conversation to the audience, the already implicit controversies became more explicit. Defense attorneys Amber Vazquez-Bode and Skip Davis, among several others, raised a barrage of issues about the overlapping “systemic problems” in the justice system that wouldn’t be solved by a what Vazquez-Bode called a “magic bullet” like a PD office. (Davis successfully insisted that everyone begin using “adequately funded” as preamble to any such office.) Casey and others on the panel variously responded with versions of “We have to start somewhere.”

Did the “conversation” advance the goal of better indigent defense in Travis County? Too soon to tell – Jordan Smith began reporting on the subject for the Chronicle back in 2013, and she’s long since gone on to greater things, and although there’s been some progress around the edges (juveniles, et al.), the central project hasn’t advanced very far at all. But the apparent feeling in the room suggested this time might be different, and from the audience, Judge Julie Kocurek declared, “This is the most interest in indigent defense since as long as I’ve been a judge. We need to strike while the iron is hot.”

Certainly the heavyweight attendees suggested that half the county courthouse had turned up to take a listen, including this high-profile list (including Kocurek): Judges Brenda Kennedy, Brad Urrutia, Cliff Brown, Tamara Needles, Chantal Eldridge, and Nancy Hohengarten; Precinct 1 Commissioner Jeff Travillion; City Council Member Delia Garza; County Clerk Velva Price and County Registrar Bruce Elfant.

No doubt I missed a few more elected dignitaries, and they were certainly outnumbered by criminal defense attorneys with important skin in this particular game. Whether the stakeholders can finally come together to make progress on indigent defense, remains an open question. And whether an eventual public defenders office – if it ever materializes – can put even a dent in what Hamilton called an unfair, “95% plea-bargain system” stacked against indigent defendants, will require a good many more public “conversations.”

Perhaps there’s a bit of momentum. For those interested, Limon-Mercado announced that the UT Law School’s student Indigent Defense Group will be holding a roundtable on the subject Thursday evening, 6-8pm, TNH 3.127, 727 E. Dean Keeton Street.

*Correction: Roger Jefferies' name was initially misspelled; it has been corrected.

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Travis County, Indigent Defense, Sarah Eckhardt, Brian McGiverin, Travis County Democratic Party, Austin Criminal Defense Lawyers Association, Texas Fair Defense Project, Grassroots Leadership

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