Point Austin: Rising to the Defense

Travis County commissioners spent much of Tuesday afternoon contemplating a grant proposal to the Texas Indigent Defense Commission that (if approved) would initiate the creation of a public defender's office, beginning next year ("County Pushes Public Defender Plan Forward," May 10). It's hardly the first time the issue has been discussed, but the subject has become increasingly pressing. One of the embarrassing notes sounded as the question has been raised is that Austin is "the largest city in the country without a public defender's office," charged with the legal obligation and institutional purpose to defend poor people accused of crimes.

For the uninitiated, what Travis County has instead is a patchwork system, currently including public defenders in special contexts (juvenile justice, mental health, civil child protection) and (since 2014), a "Managed Assigned Counsel" system provided through the Capital Area Private Defender Service. CAPDS hires private criminal defense attorneys, generally paid with a flat fee, to defend accused people who can't otherwise afford a lawyer.

In principle, a public defender's office would provide an institutional complement to CAPDS, eventually handling 30% of all criminal cases, with salaried attorneys and "holistic" services that might include social workers, translators, and other professionals to help address the web of circumstances that often complicate what are seldom simply legal matters.

The Uneasy Triangle

As noted, this is a conversation that has been taking place over many years – CAPDS is its most recent incarnation – and it's been fascinating to watch the latest episode. Excluding the commissioners themselves, there are three interest groups that are both collaborating with each other and jockeying for position in developing the project: the PDO advocates, the criminal defense attorneys, and the criminal court judges. All profess to support the PDO "in principle," but each of them has a very different notion of what such an office should look like.

The advocates – speaking primarily through the Indigent Legal Services working group (appointed by the Com­mis­sioners Court) – see themselves as most urgently representing accused defendants, and trying to get them the fairest possible PDO structure. The defense attorneys see that role as primarily their own, and while generally sympathetic with reform, have come to resent the advocates' focus on the defense bar as one major locus of the ongoing problems. As a third group, the judges have been characteristically opaque, issuing collective letters under the signature of Presiding Judge Brenda Kennedy but other­wise avoiding public comment.

Outside the Tent

The bottom line, in the judges' most recent official declaration on May 2, was that they were ready to support a PDO proposal only if it would "adequately fund our current Managed Assigned Counsel (CAPDS)." That left the commissioners with the task of haruspicating just what the judges would accept in the way of other changes to their revised proposal. What became the "Eckhardt Plan" (as County Judge Sarah E. named it, approved in a 4-1 vote) accepted the judges' additional CAPDS funding while punting down the road the vexed question of supervisory-committees-to-be-named-later. Eckhardt's logic was understandable: Facing an already delayed May 10 deadline to file the grant application, stakeholders could hold their voluble breaths for a bit while they wait for a TIDC response.

Nobody was entirely happy, the sign of either a good compromise or a deal about to become undone. The advocates (notably Grassroots Leadership) lamented what they considered a betrayal of the working group's proposal. Yet the chair of that working group, Amanda Woog of the Texas Fair Defense Project, while criticizing the judges' desire to maintain administrative control, otherwise welcomed the commissioners' approval as representing "a major step forward" for indigent defense in Travis County. Skeptical defense attorneys, also worried about CAPDS funding, loudly complained that other "systemic problems" for indigent defense will not be solved by the creation of a PDO. That's both true, and no reason not to make this substantial contribution to leveling the courthouse playing field, heavily weighted in favor of the prosecution.

As I write, no one is certain whether the Eckhardt compromise will garner sufficient judicial support to advance the application and then persuade the TIDC. It's no secret that the courthouse judicial leadership (and assembled lawyers) reflexively resent any intrusion on their institutional, clubbish authority. But it's long past time for Travis County to begin creating a criminal defense system structurally independent of the folks presiding on the bench. A public defender's office should help make that happen.