Poor Judgment

In Harris County, the indigent defense system works great — for everyone but the indigent.

In Harris County, the indigent defense system works great — for everyone but the indigent.

His Honor never showed.

Outside Judge Bill Harmon’s courtroom, a few dozen men and women in jeans and thin slacks line the hallway. Most sit on the floor, knees propped up, gazing inertly at the opposite wall. A few look at their phones. They have the practiced patience of people often expected to wait.

Down the all-white hall, a man in a suit strides toward us, the flat soles of his leather shoes slapping the tile. He stops and jerks at the courtroom doors, which are recessed and shiny, the color of cherrywood. Only after finding them locked does he drop his eyes to the people at his feet. “He’s not here yet?!” the suit demands. No one answers.

It’s a Monday morning, a little past 9:00. Half an hour ago, this hallway on the eighth floor of the Harris County Criminal Justice Center in downtown Houston was swarmed with people. Now all the other courtrooms have opened, swallowed their subjects, and closed up again. Only the hall folk of Criminal Court at Law No. 2 remain, resigned citizens waiting at the gates of the Honorable Bill Harmon’s grim little kingdom.

Harmon’s court handles misdemeanors, though like all the cases heard in this building, the charges being leveled are serious enough to incur incarceration. A single day in jail can cost someone a job or create a child care crisis, but the consequences also activate powerful legal rights. The Sixth Amendment, as interpreted by several U.S. Supreme Court decisions in the mid-20th century, guarantees a right to counsel for all defendants charged with crimes punishable by confinement. Those who can’t afford an attorney shall have one appointed, the Court ruled in the landmark 1963 case Gideon v. Wainwright. “In our adversary system of criminal justice,” wrote Justice Hugo Black for the majority, “any person hauled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. This seems to us to be an obvious truth.”

Most Texans hauled into court are indeed poor. Last year, the state appointed counsel in 71 percent of felony cases and 41 percent of misdemeanor cases, according to the Texas Indigent Defense Commission. More than 415,000 defendants qualified for indigent defense services in 2014, and nearly 65,000 of them passed through the Harris County Criminal Justice Center.

But an unknown number of defendants qualified for help and were denied it. Likewise, an unknown proportion of those who received appointed counsel were represented by attorneys too busy to do much more than communicate a prosecutor’s plea deal. In either case, defendants are deprived of the Constitutional guarantee to what the U.S. Supreme Court describes as a “vigorous defense.”

These injustices are hard to quantify for the same reason they’re easy to commit: The state exercises almost no oversight of indigent defense, and most counties still administer their programs through an antiquated process rife with conflicts of interests. Most counties, including Harris, pass the responsibility down to individual courtrooms. The judicial appointment system lets judges decide which defendants will receive appointed lawyers, which lawyers will get indigent appointments, and how many cases these lawyers will be assigned. There are plenty of little administrative rules, of course, such as attorney pay rates and minimum qualification. And, as required by state law, Harris County has an official indigent defense plan that codifies exactly how judges are supposed to evaluate whether a person is poor enough to be entitled to appointed counsel. It instructs judges to consider a defendant’s debts, expenses and dependents when determining indigency.

But that’s all on paper. Here in the hallway, inside the courtroom, and even in absentia, Judge Harmon makes the rules. And Harmon’s rules are among the harshest in Harris County, a place not known for its equitable criminal justice system. More than half the defendants now waiting for Harmon have come to court without an attorney, and many believe they’ll be appointed one. None of them will.

After a while, the tension in the hallway begins to thaw. The group chats quietly about parking — one person had found a $7 spot while another, desperate not to be late, had pulled into the nearest lot and paid a despair-inducing $20. Several people had made sure to get here early, before 8:00, to be ready for docket calls at 8:30 and 9:00. Punctuality for this morning roll call of court cases is crucial. A defendant who gets caught in the snaking security line in the lobby and arrives a few minutes late could, at the judge’s discretion, have her bond revoked and be whisked back to jail without so much as a chance to call the babysitter. Or she might be forgiven without a word. The hallway consensus is, better safe than sorry.

criminal justice
Photo by Johnny Hanson
Judge Bill Harmon sits next to a wall of family photographs in his judge’s quarters at the Harris County Criminal Court at Law No. 2.

Some appointed lawyers and other advocates of the judicial appointment system say it’s the best way to meet the enormous logistical and financial challenges posed by indigent defense. But critics claim it’s deeply flawed, both in theory and in practice. Because judges are rewarded for clearing cases quickly and attorneys must stay in a judge’s good graces to keep getting work, the judicial appointment system appears to pit the interests of judges and lawyers against the rights of the accused. In practice it’s even worse, say many attorneys. When indigent defendants are denied counsel, they have no recourse. Some represent themselves. Others keep coming back to court, lawyer-less, until their bond is revoked. Once back in jail, they’re likelier to be appointed counsel.

Around 9:30, the suited man from earlier returns and tries the doors again, apparently not tipped off by the floor crowd. But finding everything still locked, he stalks away again, snarling, “I’ve never seen such bullshit in my life…” He doesn’t seem used to waiting.

A spindly young woman sitting across from me smiles. “It’s always like this,” she says. “I been to this court four times already and it always starts late.” A few others nod. “He won’t even be there when the doors open, either,” she adds.

A staffer unlocks the doors around 10:00. He offers neither reason nor apology for the delay, and no one asks. The group rises, stretches and gathers itself, then crowds, trudging, into the courtroom looking like a line for the world’s bleakest roller coaster. Inside, they settle on wooden benches and again put on their waiting faces. Harmon’s bench is vacant, as predicted, but along the right wall half a dozen staffers chat and shuffle papers contentedly. About 6 feet in front of the benches, a passel of prosecutors bustle over files and talk about their weekends. One informs another, “This court never starts before 10.”

It’s not too surprising that some judges make their own hours, but some also seem to make their own rules. While state law lets counties decide on their own standards and procedures for determining indigence, it specifies the county apply these standards “to each defendant in the county equally, regardless of whether the defendant is in custody or has been released on bail.” Access to bail can be considered in evaluating a defendant’s ability to hire an attorney, but only alongside myriad other factors and only if the bail posted represents the defendant’s own wealth. In other words, if your mom and friends scraped together the money to spring you from jail, that fact can’t be considered.

But in Harmon’s court, the origin of a defendant’s bail — along with all the other criteria established by Harris County to determine indigence — seems to matter very little.

At nearly 10:30, court coordinator Rosario Khalaf announces that she is about to call docket. She asks defendants to stand when they hear their names and state whether they have an attorney present. “If you do not have an attorney, your case will be reset to give you time to hire one,” Khalaf says.

Of the 36 people on the docket, only one-third have brought an attorney. Seventeen showed up alone, though two say they plan to represent themselves, and seven are absent.

After docket call, Khalaf summons each lawyerless defendant to her desk to schedule a new court date three weeks or a month away. One such defendant is Victory Holliday, a petite young woman with long dark hair and worried eyes. “What if we can’t afford an attorney?” she asks. “I’m a student…” “Once you posted bond, it became your obligation to hire an attorney,” Khalaf says. She hands Holliday a few papers and turns to the next defendant. Holliday walks back to her seat in a daze.

With that, she joins the ranks of broke defendants in Harris County left to scrape together enough money to hire their own attorneys, or slip down the path of least resistance to plea deals and jail.

Texas was once a pioneer of indigent defense. as early as 1857, the Texas Code of Criminal Procedure instructed courts to appoint attorneys for poor defendants in criminal cases — more than a century before the U.S. Supreme Court would do the same. But despite its statutory head start, Texas lagged behind most of the country in actually ensuring indigent defense. The state government provided no administrative, regulatory or financial support to the counties, let alone accountability, until 2001, even as various studies ranked Texas among the worst in the nation at protecting the rights of poor defendants.

Only after three uniformly damning reports on Texas’ indigent defense system came out in quick succession, around 2000, were state lawmakers sufficiently shamed or inspired to act. One report, from the State Bar of Texas Committee on Legal Services to the Poor in Criminal Matters, summarized the findings of all three when it concluded, after four years of study, “Simply put, the state of Texas is a national embarrassment in the area of indigent legal services.”

The Texas Legislature took its first stab at reform in 1999, passing a bill that would have begun dismantling the judicial appointment system. But it was vetoed by then-Governor George W. Bush. In the next session, lawmakers tried again, but much more gingerly. The Texas Fair Defense Act of 2001 didn’t tell counties what their indigent defense plan had to be, but it instructed them to have a plan and to nail down particulars such as pay rates and attorney qualifications. The bill also established a legislative Task Force on Indigent Defense, which later became the Texas Indigent Defense Commission. This commission has some carrots to help counties improve their indigent defense programs, including gentle guidance and grant money, but it has no stick. It employs only three inspectors to monitor counties’ compliance with the Fair Defense Act. Violations could, in theory, cost a county its grant money, but a representative for the commission said this has never happened.

State Senator Rodney Ellis, D-Houston, authored the Fair Defense Act of 2001. He recalls it almost bitterly. “That’s what I could get passed,” he said. Ellis and others have since eked out improvements but haven’t come close to fixing what he says remains the fundamental problem: the judicial appointment system.

“There’s an inherent conflict in the judge being in control of who represents an indigent person,” Ellis says. “You’re the referee and the manager of one team. It’s just inherently unfair. It’s common sense.”

Whenever judges’ and defendants’ interests conflict, Ellis says, appointed attorneys may have stronger incentives to keep judges happy than to serve their clients. Rub a judge the wrong way, Ellis says, “You won’t get another case.”

When I describe how Harmon’s court staff told defendants that making bail disqualified them from being appointed counsel, Ellis looks dismayed but not surprised. He calls his chief of staff, Brandon Dudley.

“I’m assuming that’s a violation of the Fair Defense Act,” Ellis says.

“It’s certainly supposed to be,” Dudley says. “Lots of judges do it. It’s just, you know, how do you enforce it? … It’s a real problem. That gets into, how do you have that many enforcement tools to monitor this stuff around the state?”

Dudley sighs, concluding, “They use it as a way to make people plead.”

Texas courtrooms are basically fiefdoms. Trial court judges such as Harmon win four-year terms in partisan elections, have no term limits, and are supervised by a single disciplinary body: the State Commission on Judicial Conduct, which is responsible for investigating complaints and monitoring the behavior of every judicial officer in Texas. Its 13 board members are volunteers appointed by the governor, the Texas Supreme Court and the State Bar of Texas. More than 3,200 magistrates, justices of the peace and municipal, probate, district, county, retired and associate judges in Texas answer to a commission with a staff of 14.

Guilty pleas are important because for some judges, speed is the name of the game, and nothing clears a case faster than a guilty plea. Trial court judges are assigned thousands of cases a year and are evaluated, formally and informally, on how quickly they dispose of them. Each year, the state Office of Court Administration quantifies how efficiently each county clears its cases. Harris County is very efficient. Last year, its misdemeanor courts had a clearance rate of more than 100 percent, meaning they disposed of cases faster than new ones came in. Felony district courts were almost as quick, with a clearance rate of 97 percent.

The purpose of the efficiency evaluation is to keep judges from accumulating giant backlogs, especially since such delays could leave defendants stuck in jail for months if they can’t make bail. But every virtue, in excess, becomes a vice.

Robert Fickman has practiced defense law in Harris County for more than 30 years and served until recently on the board of directors of the Texas Criminal Defense Lawyers Association. He says judges have come to treat these numbers as objective measures of success.

“The way a lot of judges view themselves and compete with one another is by the size of their docket,” Fickman says. “The smaller the docket, the better the judge. And in fact, it’s probably the opposite. I’ve found the smaller docket oftentimes means the crummier the quality of justice.”

Fickman is a vocal critic of the judicial appointment system. He says official and cultural bias toward small dockets can pressure judges to appoint attorneys who clear cases quickly, regardless of the quality of counsel they provide.

“There’s a certain number of court-appointed lawyers who appear to be appointed primarily for their ability to move the docket,” Fickman says. “The trade-off is that the judge is appointing Lawyer X to lots of cases, and in return for the appointments, Lawyer X is moving those cases, which meets the judge’s objective.”

According to data from the Texas Indigent Defense Commission, 422 attorneys accepted appointed cases in Harris County last year, but some received far more than others. Ten percent of appointed attorneys took on more than a third of all indigent defendants. The average caseload for all attorneys who accepted appointments in Harris County last year was 189. For that prolific 10 percent, the average was 637.

In January, the Public Policy Research Institute at Texas A&M University published a groundbreaking study of indigent defense caseloads in Texas. In addition to researching how many cases appointed attorneys are currently accepting, it established a maximum caseload attorneys could be expected to carry while maintaining a minimum standard of quality defense.

The results were startling. The study, “Guidelines for Indigent Defense Caseloads,” recommended that attorneys accept no more than 236 of the lowestgrade misdemeanors or 174 of the lowest-grade felonies each year.

According to an Observer analysis of Texas Indigent Defense Commission data, more than one-third of Harris County appointed attorneys exceeded these standards. The excesses weren’t minor, either. Overall, attorneys who accepted misdemeanor appointments in Harris County last year handled an average of 216 such cases. That’s lower than new guidelines, but not by much. It’s also badly skewed, because attorneys who took on more than the recommended maximum of 236 cases tended to take on many, many more. In 2014, among attorneys who accepted more than 236 misdemeanors, the average caseload was 495.

In felony courts, the disparity was similar. The average caseload for all attorneys accepting felony cases last year was 119, comfortably under the new maximum of 174. But attorneys who exceeded the recommendation took more than twice the average — 266 felony cases.

More than a dozen of the attorneys with felony caseloads above the recommended max in 2014 accepted misdemeanor appointments at the same time. Four also handled appointed capital cases.

To create the caseload guidelines, A&M researchers needed to figure out, for different case types, how much time it takes to develop an effective defense. Using a two-pronged approach, they asked a panel of experts to come up with one set of numbers while, separately, they surveyed hundreds of Texas lawyers and distilled their responses into another set. The two methods yielded impressively similar results. Misdemeanors need around 11 hours of work, the groups agreed, while low-level felonies take around 17 hours. A single high-level felony case usually eats up the better part of a week: 30 hours.

In this context, the output of Harris County’s most prolific attorneys seems less ambitious than impossible. One attorney, Jeanie Dickey, disposed of 441 felony and 528 misdemeanor appointed cases in Harris County last year. (Dickey did not respond to multiple requests for comment.) According to the A&M study, even if all the felony cases were lowlevel, that quantity of work should have taken her almost seven years.

At least, that would be the estimate if Dickey only worked assigned cases. But the same legislation that ordered the caseload study, Ellis’ House Bill 1138, required attorneys who provide indigent defense to report how much of their work time is spent on assigned cases, as opposed to the more lucrative privately retained ones. Dickey told the Texas Indigent Defense Commission that last year, she dedicated a little less than two-thirds of her time to her 969 indigent clients.

One might assume such huge numbers are a product of lawyerly ambition — attorneys accepting modest numbers of assignments from individual courts but working several courts at once, racking up big caseloads. But an Observer analysis found that many attorneys with the biggest workloads took most or all of their assignments from a single judge. Misdemeanor judges have several options for how to distribute their indigent cases. Some rotate through a number of favorite attorneys; others contract with a few lawyers to handle all indigent cases each Monday for six months, or every day for two weeks, a month, or more.

Harris County
Jen Reel
Criminal defense lawyer Robert Fickman in his Harris County office.

Harmon keeps by far the smallest roster of appointed counsel in Harris County. Last year, he distributed all 2,451 of his assigned cases among just 10 attorneys. The lion’s share went to Jorge Cantu and Mekisha Walker, who are contracted to represent indigent clients in Harmon’s courtroom every day it meets. In 2014, Cantu and Walker accepted more than 750 misdemeanors each — more than three times the maximum recommended by the Public Policy Research Institute study.

When asked about his huge 2014 caseload, Cantu concedes, “When you look at pure numbers, they’re high. I’m not going to argue with you or dispute that.” But those statistics don’t tell the whole story, Cantu says. “It just depends on the kind of cases. Probably half of them are, a driver’s license was invalid or something like that. … We want to make sure there was probable cause and just the basic stuff, but it’s real simple to ascertain which [cases] you’re going to need to spend more time on.”

Cantu says being a contract attorney skews his totals as well. “We’re in this court every day,” he says, “so the numbers are real high compared to other people.” And he notes that he and Walker can’t turn down cases unless they’ve hit the legal cap of seven new appointments per day. “That’s part of the deal we have with the county,” he says. “Only when we get to seven can we say no.”

Cantu says that critics of high caseloads don’t understand the role contract attorneys play in making indigent defense feasible. “The county’s saving a lot of money” by paying him per day rather than per case, he says. Indeed, last year Cantu made a little more than $67,000 from Harmon’s court, which averages out to about $88 per case. Meanwhile, non-contract appointed attorneys in Harris County misdemeanor courts were paid from $50 to $90 per hour.

If the county wants to set annual case limits or lower the daily cap on new cases, Cantu says, “That’s fine. Don’t give us seven cases.” But limiting caseloads would mean hiring more attorneys. “Who’s going to pay for it?” he asks. “That’s the bigger question.”

No matter how a lawyer gets so many cases, he or she better work them fast. And the fastest way to clear a case is for the defendant to plead guilty.

And plead they do. The indigent defense caseload study found that appointed attorneys had strong incentives to pressure their clients to accept plea deals regardless of actual guilt. “High caseloads contribute to a ‘meet and plead’ system that can result in serious incidents of attorney error,” it notes.

Last year, defendants in 57 percent of Harris County’s 69,000 trial-level misdemeanor cases pleaded guilty, as did almost half of the 40,000 felony defendants.

In some cases, appointed attorneys have more than incentive to urge their clients to plead. They also have leverage: jail.

“The way it’ll work is, the [appointed] lawyer will talk to the [district attorney], the DA will tell them, ‘This is what the offer is,’ and they’ll go back and convey this offer to the defendant,” Fickman says. “It almost always boils to this: that they’re offering you X, which means if you plead guilty you’ll get out of jail in so many days. Or we can reset [delay] your case, if you want to fight it, and you’ll end up spending more days in jail. It’s a hostage choice — it’s not a choice at all. These are poor people who need to get back out and try to feed their families. So what do they do? They plead guilty. They’re not pleading because they’re necessarily guilty but because they’re getting their liberty. The horror, the horrible irony of this system, is that people are pleading guilty just to get their liberty. And it goes on every fucking day.”

Besides needing to keep judges happy by clearing dockets, appointed attorneys have powerful financial reasons to churn through cases. Appointed counsel earn a pittance compared with even the cheapest private attorneys’ rates. So the only way to make a decent living doing indigent defense is to accept high caseloads. Because appointed attorneys are usually paid flat rates, every extra minute spent improving the quality of his defense hurts his bottom line.

Joshua Hill knows this from experience. Last year, Hill had one of the highest appointed caseloads in Harris County. He accepted two six-month contract assignments from county courts, served them back-to-back, and says he won’t be repeating it any time soon. “Right now, I’m no longer doing misdemeanor appointment work,” he says. “I don’t know if I’m ever going to again.”

Four or five days a week, every week, judges assigned Hill up to seven new clients a day. He says that with such a caseload, he had to fight to maintain his ethical standards. “I can’t speak for everybody who does appointed work. Some of them are great. I’m sure some aren’t as conscientious,” Hill says. “But every case I was appointed on, I treated it the same as if it were somebody who had hired me, as if it were a close friend.” He burned out after a single year.

Hill disposed of 736 misdemeanor cases in 2014. “With that kind of volume, it just wears on you,” he says. “If you’re really digging in and doing the work and not just pushing things through the system, it gets difficult. It takes too much out of you.”

Fortunately, there are other ways to handle indigent defense. A few floors above Harmon’s courtroom is the Harris County Public Defender’s office. Founded in 2011, it handles a small percentage of indigent cases but gets impressive results. While misdemeanor judges have several options for distributing appointed cases, felony court judges in Harris County are supposed to use a “wheel system,” meaning they pick attorneys to appoint from a randomized list of qualified counsel that’s generated for each assigned case. The Harris County Public Defender appears on the “wheel” list like any other individual lawyer, so its attorneys handle a variety of felony cases. But it also takes on some juvenile and appellate cases, along with all of Harris County’s misdemeanors that may involve mental illness.

The Harris County Public Defender gives its attorneys strictly enforced caseload limits and pays a salary independent of their caseload, taking away any incentive to accept more cases than they can effectively defend. Their office also pays for its own supplemental resources such as expert witnesses and outside investigators. Such resources can flip the fate of a case, but regular appointed counsel have to request them from the same judge that appointed them counsel and will hear the case — a judge that might consider these resources a waste of the court’s time and money.

A 2013 evaluation by the Council of State Governments Justice Center revealed that these differences in administering indigent defense have huge effects on justice outcomes. Felony defendants represented by the Harris County Public Defender were acquitted three times as often and misdemeanor clients with mental illness saw their cases dismissed five times as often. And both felony and misdemeanor clients were more likely to have their cases fought at trial rather than pleaded.

Alex Bunin, chief public defender for the office, says the findings make sense. Besides the inherent conflicts of interest, putting judges in charge of assigning and evaluating appointed counsel is a time-consuming job if done correctly. “There’s no oversight as to any individual lawyers except each judge’s ability to say, ‘I’m no longer going to appoint this lawyer,’” Bunin says.

So what’s to stop judges from appointing attorneys they know violate clients’ rights?

Bunin thinks for a moment. “Right now, there’s no mechanism other than the judge’s own conscience,” he says.

Back in County Criminal Court No. 2, Khalaf finishes resetting the court dates of everyone who arrived without a lawyer. But they can’t leave, because a judge must sign their paperwork and Harmon is still absent. They wait and wait. Around 12:30, Khalaf gets a call saying Harmon isn’t coming today. She doesn’t tell the defendants; I only know because I overhear her asking another staffer to call around and find a replacement. No one seems surprised or concerned. Khalaf doesn’t volunteer a reason that Harmon is out, and nobody asks.

I made three trips to Harmon’s court, months apart, to see if the procedures I originally witnessed were repeated. They were. Harmon himself was consistent, too, failing to appear on any of the days I attended. Nor did he respond to multiple phone calls. In late August, unable to reach him in person or by phone, I finally mailed a certified letter to his courtroom, but Judge Harmon was on vacation when the letter arrived. At press time, he remained so.

Emily DePrang is a freelance writer in Austin.

Published at 8:56 am CST
Top