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A Public Option: Little-used county office one choice in curbing indigent defense costs
With the budget-crunched county cutting costs this summer, the Hidalgo County Public Defender’s Office faced an uncertain future.
The chief public defender needed to convince commissioners to pay for the office established in 2005 to defend the county’s poorest residents from misdemeanor charges.
In his pitch to keep his office around, Jimmy Gonzalez told them his attorneys didn’t fit the typical stereotype of an overworked public defender.
“We’re not at full capacity,” Gonzalez said, noting his office can easily absorb at least twice as many cases each year. “In the future, I’m not asking for more pay. I’m not asking for more employees. I’m asking for more work.”
County commissioners ultimately decided to take on the office’s $650,000 annual cost even as they were slicing $9 million from other parts of the 2010 budget.
But they did so with one caveat: the office needed to become cost-effective by taking on more work.
Studies have consistently shown a public defender’s office can do the same work cheaper than court-appointed, private attorneys. But Hidalgo County may have the only public defenders in the country who routinely complain they don’t have enough to do.
As the county considers ways to control an indigent defense expense projected to hit $9.9 million next year, experts and state administrators say it is underutilizing one solution to its cost conundrum.
“Every other public defender in the state is being crushed with crippling caseloads,” said James Bethke, the director of the state task force on indigent defense. “Here we have an office in one of the poorest jurisdictions in the state and the office is being underutilized.
“That doesn’t make sense.”
PUBLIC DEFENDERS
No one person or group has complete control over the complex factors that determine the public defenders’ caseloads.
For years, the county relied solely on a court-appointed counsel system in which judges assigned private attorneys to represent defendants who couldn’t afford their own lawyers.
But the 2001 Fair Defense Act dramatically changed indigent defense in the state.
Counties were required to implement more stringent rules to determine who needed appointed counsel. Those who weren’t offered an attorney for minor charges now needed representation. And Hidalgo County’s costs to provide those services began to rise -- doubling from $2 million to $4 million by 2005 as the county slowly implemented the act.
County administrators sought a grant that year to open a public defender’s office in hopes of lowering expenses. Because these county-employed lawyers would work on salary rather than on the hourly rate paid to private attorneys, the cost to the county was expected to be lower and more predictable.
But from the start, the plan was viewed skeptically by private lawyers who saw it as a threat to their livelihood. Judges, too, were unconvinced that the public defender system would be a panacea.
NO CHOICE
When the Texas Task Force on Indigent Defense gave Hidalgo County a four-year grant to start its office, private defense attorneys frantically tried to block it from handling certain types of cases, fearing it would cut into the number judges assigned them.
Aida Salinas Flores, presiding judge of the 398th state District Court, said local defense attorneys threatened to run a candidate against her in her next election when she brought up the possibility of public defenders taking felony cases.
Robert Spangenberg, an indigent defense consultant contracted by the state to review Hidalgo County’s office in its infancy, supported the idea of public defenders handling felonies as a way to retain attorneys looking for challenges and pay beyond what is offered in the misdemeanor courts. However, he soon realized that opposition from some defense attorneys was too strong.
“There really wasn’t a choice,” he said. “Either there was a program with just misdemeanors or there wasn’t going to be a program at all.”
Defense attorneys are typically the biggest opponents of replacing the appointed-counsel system that can line their pockets. But in an economically depressed area like Hidalgo County -- where 70 percent of defendants couldn’t afford to hire a lawyer last year -- the criminal defense bar saw a public defender’s office as an even greater threat.
Rumors have circulated among them that budgetary issues will lead the county to hand all cases to its public defenders, said lawyer Juan Alvarez, who handled 180 court appointments this year.
Alvarez survives on court appointments and takes notice when there are fewer to go around.
He recalled a joke he once told a fellow attorney as they were scanning the docket posted outside a courtroom.
“I’m thinking I’m going to change my name to ‘Public Defender,’” he said. “It’s already all over the damn docket.”
A TYPICAL DAY
But for now, Alvarez’s fears are unfounded.
The court system is supposed to assign at least 25 percent of all indigent misdemeanor cases to public defenders, under plans developed when the county established the office.
But on one typical arraignment day in August, 29 defendants appeared before County Court-at-law No. 6 Judge Albert Garcia in a one-hour period. Twenty-three of them told Garcia they couldn’t afford a lawyer, and all 23 were appointed private attorneys from among the cadre of lawyers sitting in the courtroom.
None of the defendants were assigned to Iris Guerra, the assistant public defender stationed there to wait for cases.
What happened during that one hour of arraignments in Garcia’s courtroom is similar to what happens in most other county courtrooms.
In four of the county courts-at-law, including Garcia’s, the public defender took on only 15-18 percent of all the indigent cases on the docket, according to appointment data for the last three years. In many of those cases, the county Indigent Defense Office — not the judge — actually made the appointments.
Data and anecdotal evidence indicate County Court-at-law No. 4 Judge Fred Garza, who is on the board that oversees the Public Defender’s Office, is the only judge who regularly appoints them cases.
He saw fewer indigent defendants than other county court judges in the last three years but made twice as many public defender appointments.
Garza said he tries to keep within the plans agreed upon when the county set up the office.
But Jaime Palacios, presiding judge of the County Court-at-Law No. 2, said he doesn’t think about the office’s workload when he is on the bench.
The Indigent Defense Program — the group of county employees who screen inmates at the jail — should ensure that the public defenders receive the proper number of appointments, he said. The judges focus on showing impartiality when distributing cases among the private attorneys.
“The public defender’s office will assist us if there are other defendants in the courtroom that need to be represented,” Palacios said. “They don’t get all of them, but they get their fair share.”
BALANCING ACT
Budget administrator Raul Silguero has studied dozens of possible solutions for the county’s rising indigent defense cost but keeps coming back to the public defenders. (See "Texas counties take different approach to common indigent defense problem")
By simply maximizing the caseload for each — giving them at least 1,000 more cases annually, or about 200 cases per public defender — the county could save $1.1 million over what it’s spending now on private attorneys, he said.
A 2006 study by Texas A&M University’s Public Policy Research Institute found that public defenders, on average, can handle a case for about $40 less than private lawyers. (See "Other counties push public defender's offices")
But as it stands now, their declining case loads mean the county is spending more per public defender case than it was three years ago.
In 2006, the county spent an average of $218 per public defender case compared to the $236 it spent on those with court-appointed private attorneys. As of last year, the office’s average cost had doubled to $452 per case, since the public defenders are paid the same salary regardless of how many or how few cases they handle.
County administrators are toying with the idea of expanding the number of attorneys in the office.
But without buy-in from the judges, the case loads won’t change, Gonzalez said.
And the county’s magistrates aren’t all sure expanding the office is the key.
The courts must be cautious not to put too big of a burden on the public defenders or risk overworking them, said Judge Albert Garcia.
“It’s a difficult balancing act,” he said. “But the good thing is that everybody is trying their hardest to work together and find a solution for it. Whether they can accomplish it — that’s something else.”
MOVING ON
It’s a balancing act that one assistant public defender will soon see from the other side.
John Schulz joined the office in 2007 as a young attorney because he felt he needed more seasoning. Now, he is giving up his position to start his own law practice.
In his new role, he will have to concern himself with both the practice and the business of law — a familiar task for the 200-plus private attorneys who took court appointments this year.
Like other young attorneys starting out, he will rely on court appointments as he builds his business and will in effect be jockeying for jobs in competition with former coworkers at the public defender’s office.
But after two years there, Schulz wants new opportunities.
He wants to try the felonies he is currently barred from taking on. And an income beyond his annual government salary of $54,600 — a salary surpassed by 53 private attorneys who were paid by county taxpayers to take on indigent cases — is appealing.
What he finds out there may be markedly different than what the system offered in the past.
Indigent defense costs are expected to near $10 million next year. And most interviewed for The Monitor’s three-day review of the system — from the private attorneys who flock to the courthouse to look for work; to the judges and county employees who distribute the cases and make out the checks; to the elected officials who must ensure all residents, regardless of income, get a competent defense — agree the system needs some tweaking.
The public defender’s office — the solution most heavily favored by county administrators — could end up taking on a bigger load. But if that happens, the business model based on court appointments is bound to change.
Schulz acknowledges the irony in his situation, joking that “there is an element of ‘I hope the public defender (system) crashes and burns.’”
But good attorneys will always be in demand for criminal defense, family law or civil litigation, he said. He called the Public Defender’s Office a solution but not the only one.
In the difficult task of balancing the price of indigent defense and the pursuit of justice, there is at least one constant.
“There’s no substitution for a good-quality attorney,” Schulz said.
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Jeremy Roebuck covers courts and general assignments for The Monitor. You can reach him at (956) 683-4437.
Jared Janes covers Hidalgo County government, Edinburg and general assignments for The Monitor. You can reach him at (956) 683-4424.
