Monday Musings: Public Defenders & Parity

It’s an issue that faces many public defenders and support staff throughout the country: salaries, resources, and other things money could buy for the best defense money can’t buy. These are the issues (or, more specifically, the issue of pay parity for public defenders) that led TexPD4Parity to create Public Defenders & Parity.

Recently Tex took the time to answer some questions for Monday Musings, and to shed some light on an issue that often flies under the radar.

Introduction

I’m ready for my close up, Mr. DeMille. Oh, we’re rolling? Is this mike on? ::taptap::

It is? Okay, then. :::clears throat:::

Good morning, my fellow PD- philes! I’m TexPD4Parity, author of the narrowest, driest, most unread blog in cyberworld! (Hint-There may be an idea for a new Rodney Award category here.) I’m really glad I got the opportunity to be interviewed for Monday Musings. I think the questions are extremely well crafted and better than the take-home exams I had in law school. Despite an occasional lapse into attempted levity, I did my best to answer the questions as thoughtfully and fully as possible. Regardless of whether you live in Texas or not, this is an issue that affects many of us both on and off the job.

For those who haven’t dropped by the ol’ blogstead, Public Defenders & Parity doesn’t deal with intense legal analysis of appellate decisions, nor does it delve into the day to day victories and horrors of a public defender’s life. I write about the issue of the inadequacy of funding whether it be salaries, training, or support. Not very sexy, I admit. Let’s get on with the interview.

You eloquently explain your blog’s purpose and goals in your first post. What more can you tell us about why you’ve chosen to focus on the issue of pay parity for public defenders?

My increasing radicalization on this issue began about four years ago when a document was circulating showing the salaries of all supervisory staff in the DA’s and PD’s offices. Courthouse folklore had it that it had been requested under public information laws by one of the county criminal court judges. I believe that it was also the source for The Spangenberg Group’s data on salaries for it’s 2004 report on indigent defense in Dallas County.

About a year later, then DA Bill Hill went to the commissioners and asked for this huge raise for his prosecutors. The media quoted some pitiful ADA complaining that his wife had to work so he could where the white hat. The commissioners cut the requested amount about a third and gave raises to both the ADAs and PDs. Of course, the ADAs’ raises were worth more in real dollars than the PDs’ because they were already making significantly more than PDs. And, of course, the media didn’t cover that.

During this same period of time a memo was issued from “on high” to the tenor that most PDs did this for idealistic purposes and not the money and that since we didn’t have lobbyists to get us nifty things like longevity pay, we should just shut up and do our jobs. This seemed to me to smack of “learned helplessness” and defeatism. So I started germinating ideas on what might be done to correct the status quo.

Also playing into this was the 2001 Fair Defense Act and the creation of the Task Force on Indigent Defense both of which have failed to address compensation, training, and support funding. It is as though PDs don’t exist as human beings in Texas, but are rather viewed as an amorphous commodity.

The launching of Public Defenders & Parity was in anticipation of this legislative session. I hadn’t intended on tracking legislation as much as I’ve done until I started seeing the bills being filed that directly or indirectly relate to the issue. I actually intended for there to be more discussion and hopefully generate ideas on how to go about getting what we need.

I overestimated the amount of interest I could generate on parity issues. As Lewis Black would say, I must have been “delooooooosional.” Whether I over-estimated the number of Texas PDs in the blogosphere or whether I just suck (can I say “suck?”) as a blogger, I’ve been really disappointed at the number of comments I’ve received.

As you point out in your first post, the concept of indigent defense is still in its infancy in Texas. How would you describe the growing pains and its current development?

I’m afraid the infant is being raised in a dysfunctional family. Long before I became torqued-up over the funding issue, I thought the authorizing statue, article 26.044 of the Texas Code of Criminal Procedure, represented a fundamentally flawed model. Defense counsel should have sufficient independence to zealously represent their clients without having to worry about the political consequences to themselves or the office. Nor should they have to forfeit their right to free speech.

A chief public defender serves at the sufferance of the commissioners. His or her assistants, at least in Dallas County, are not protected by civil service and are employed at the pleasure of the chief public defender.

A judge has the discretion to use public defenders in his or her court or not and if PDs are allowed in the court, the judge is able to determine who that PD is. And, just as easily, throw him or her out of the court.

I have seen judges agree to take on additional PDs on the condition that “X” be hired to fill the position. I have known of a PD who was banned from a courtroom for, as was commonly believed around the courthouse, writing a letter to the editor in support of the judge’s primary opponent. I have heard of PDs being shuffled from one court to another when a judge complained they “set too many cases for trial.”

The TFID has done a lot of good with the use of discretionary grants to start new PD offices, expand existing programs, and provide some tools of the trade in the form of computers and case management software, but discretionary grants cannot be used to pay the salaries of existing positions and formula grants to the counties are basically to reimburse them for the costs of implementing the Fair Defense Act.

Until the state legislature builds independence into the model, provide direct funding or legislates parity trough unfunded mandates, creating and expanding PD offices with a flawed framework is simply “crap breeding crap.” I’ll explain the origin of that phrase in a future post.

The lack of funding of indigent defense has been national news lately, with the problems in New Orleans plus the funding-related delays in the Brian Nichols trial in Atlanta. Have you seen an increase in awareness of the problem, and what impact do you think it could have on the question of pay parity?

Let’s not forget the cuts forced down the throats of public defenders in Cook County, Illinois. That just sickens me.

To answer your question, I’d like to think these stories could have an impact, but this is Texas, after all. This is where the death penalty is being adopted for sex offenders, the “duty to retreat” before using deadly force is being abandoned, and the Court of Criminal Appeals just got “dope slapped” on the back of its collective head on three death penalty cases.

As reported wonderfully in Grits for Breakfast and The Wretched of the Earth, the Court of Criminal Appeals is not particularly “defendant friendly” and its chief justice chairs the TFID. Is it any surprise that compensation or funding standards for existing programs haven’t been addressed in the over five years of its existence and that these issues aren’t even on the table in its strategic plan for the next 4 or 5 years?

I don’t think state or local policy makers care one wit about what’s going on beyond the state line. At least they don’t seem to care with regards to this issue. Occasionally, the papers will pick up on what’s going on in Louisiana due, I suppose, to its proximity, but the issue is largely ignored in the media, including the so-called liberal publications.

You have detailed some of the Texas Legislature’s activities, especially those related to judge and prosecutor longevity pay issues. How would you describe your impressions of the legislative process and trying to get things done through that process?

My general impression has left me feeling like being trapped inside a Lewis Black routine. There are two issues here. One is the frustration of trying to achieve some when one doesn’t know what the hell he’s doing. That can be fixed. Starting early in the process is a must. We’ll also need to try to line up support not only to introduce legislation, but to get the appropriations committee to provide for it in the appropriations bill. It also wouldn’t hurt to have an ally on the calendars committee so that legislation gets heard.

The other is realizing that even when one has all the ducks in a row, there are pitfalls everywhere. A former staffer told me that it’s always a long shot to get something passed as there are “a thousand ways to kill a bill.”

In one of your posts you point out that indigent defense/public defender offices are a cost-efficiency solution rather than an attempt to “fulfill some lofty Gideonesque ideal.” Is there a hostility towards the very concept of indigent defense that affects the goal of parity? If so, how is it possible to get past any reluctance inherent in such hostility?

It’s not just hostility; it’s also indifference, ignorance, and benign neglect. We, as public defenders, have to educate policy makers about why under-funding defense affects the appearance of fairness in the system. We have to get the numbers and show them what we’re talking about. Chief public defenders need to actually meet with legislators in Austin and explain what they need and why.

The media needs to be cultivated in Texas and, in turn, the voting public. As one comment on my blog suggested, it’s not enough to write letters to the editor. We need to get individual reporters interested in writing about this issue. We need to be willing to provide them with the information or be able to show them where to find it themselves.

The first step, though, is to get public defenders in this state to realize that nothing happens if they remain complacent with the status quo.

When I was thinking about this question, I remembered the character, Howard Beale in the film Network:

“All I know is that first, you’ve got to get mad.

You’ve gotta say, “I’m a human being, goddammit! My life has value!”

So, I want you to get up now. I want all of you to get up out of your chairs. I want you to get up right now and go to the window, open it, and stick your head out and yell,

“I’m as mad as hell, and I’m not going to take this anymore!!””

THE PD STUFF FIVE QUESTIONS

If you weren’t an attorney, what other job would you like to try and why?

I’ve thought about this a great deal over the years. If I had it to do over again, I might like to try being a writer or a photographer, but I feel I’m merely competent at one and not particularly talented at the other. Having an artistic profession requires an obsessive drive I’ve never really developed.

I’ve thought about teaching, but my law school performance was less than stellar.

Lately I’ve become quite interested in learning to build off-the-grid homes that use straw bale and adobe. If I had to work as a laborer, that’s an area I’d like to be involved in.

Best moment on the job?

I have to tell the first story as a contrast to the second one.

I had been with the PD’s office for over a year and was still assigned to the misdemeanor section. Although I truly enjoyed working with this particular judge, he frequently helped out the State more than I thought was in good taste. For example, I was trying this DWI case to a jury and I moved for an instructed verdict due to the persecutor’s failure to prove up a necessary element. The judge let them reopen. The State screwed it up again. Again, I moved for an instructed verdict. Again he allowed them to reopen. I stood to object and he cut me off, “I know, you’re gonna object cuz I’m helping them! I don’t blame you! OVERRULED!

Still assigned to the same court about a year later, I had a week where I had overlapping jury trials. By overlapping, I mean while the first jury was deliberating, we started picking the second jury. We stopped to take the verdict. Guilty. State put on it’ punishment case. Jury goes out to deliberate and we go back to voir diring (yes, voir dire, pronounced “voh-dyre” in Texas, is frequently used as a verb here.) the panel.

I had another case set that week which had been being passed every month for over a year. It was a bond case with a civilian complainant and, thus, low priority for the ADAs who were allowed to run the docket and announce ready on the .029 blood test DWIs with multiple priors. The judge had this obscure rule that if defense counsel and the State announced ready on different cases, the State would be allowed to try its preference first, but would have to try whatever defense counsel had announced on after that. I had made my announcement of ready (knowing it meant jury trial number three for the week) and the judge told the prosecution they were going to trial.

The ADAs roared their terrible roars, rolled their terrible eyes, gnashed their terrible teeth (apologies to Maurice Sendak), and filed a motion for continuance.

It was agonizing watching one ADA examine another ADA on the stand trying to prove up their motion followed by my cross. At least for the judge. Finally, he said, “Mr. X, c’mere,” motion to the side of the bench. When I got there he leaned down out of ear shot of the rest of the courtroom. He said, “There’s an easier way to do this. Go back to counsel table and request leave of the court to file a Motion to Dismiss for lack of a speedy trial. You’ll WIN!.

And I did.

Worst moment on the job?

Other than the day an irate family member screamed at me in a hallway crowded with people, “The Lord is gonna set this right and He’s gonna start with YOU!”, I’d have to say it’s not so much a moment as an extended period of time when I found myself in a particular judge’s cross hairs. It seemed every day I had to appear in that court, as a prelude to the morning’s colitis attack, I would have to play “twenty questions” with the judge until I answered one not to her satisfaction. Then I would be treated to a seeming eternity of berating in front of a packed courtroom. It only ended when I learned to remain absolutely still. The judge sniffed at me and, thinking I was dead, moved on to fresher prey.

If Heaven exists, what do you think God will say to you when you arrive?

I don’t subscribe to the traditional concepts of Heaven and Hell, but in the event I’m wrong I think He or She’ll say, “Boy, ya look rode hard and put up wet. C’mon in and rest a spell.”

If you could only pick one, who is your hero/heroine?

I’m way too cynical about human nature to believe in the archetypal “hero” or “heroine’, although I do believe people are capable of incredibly heroic acts. I think there are many people act heroically everyday when they intervene on behalf of the helpless at great risk to their own well-being, whether that be the “hero’s” physical safety, liberty, or political survival. I think the person who epitomizes this in recent events is Liviu Librescu, the Virginia Tech professor who bought time for his students to escape at the cost of his own life. My runner up is Warrant Officer Hugh Thompson, the chopper pilot who had ordered his gunners to train their guns on the American forces at My Lai in order to stop the massacre of civilians and reported the incident.

Thank you, Tex, for taking the time to so eloquently and excellently shed some light on this important issue.

Next week’s Monday Musings guest is MissTyrios. If you have some questions you’d like me to consider for her interview please email me.

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