Harris County’s ​‘Holistic’ Approach to Public Defense Provides Support In and Out of the Courtroom

Across the country there are public defense offices that are understaffed, underfunded, and overburdened. How is it that your office is able to overcome those obstacles that are plaguing others?

Let’s start at the beginning, because it kind of follows my career. I grew up in New York City — came to Texas after college and to Houston to go to law school. When I graduated in 1986, Harris County did not have a public defender’s office. Its system of appointments was, I think, 22 felony judges and 15 misdemeanor judges at the time, and each could appoint anybody they wanted to as their lawyer. There was no standardization or policies.

And the lawyers weren’t paid very much. It was by appearance and not by, for instance, how many hours you worked on the case. So you show up one day, you might get $150 or something. And if they reset the case and you showed up again, they paid you for that. You got paid a little more if your case went to trial. But on the whole, there were no real financial incentives to do a lot of work on cases. And that’s the way it was for a long time.

Sounds like there was a lot of incentive to keep resetting cases.

Exactly. So I did that work for a while, and then I became an assistant federal public defender in Beaumont in the Eastern District. The federal defender system had already become much more regulated and was well funded, so it was considered to be a gold standard for public defenders. I later opened a public defender office in Mobile, Ala., which didn’t have one, and then later opened a federal public defender office in the Northern District of New York. I was there about 12 years.

And that’s when Harris County was first deciding it would be interested in opening a public defender’s office. What had happened was Texas passed the Fair Defense Act back in 2001, which was sponsored by then-Sen. Rodney Ellis [now the Precinct 1 commissioner for Harris County]. The act created rules that counties had to follow about minimum qualifications for representation and having some sort of system for appointments, as opposed to leaving it to judges’ discretion.

Harris County developed some quality controls, like they had tests lawyers had to take, and they had what they called a wheel so that appointments would get more uniformly distributed. It wasn’t perfect — it didn’t fix everything — but it was better.

One of the things that happened in the Fair Defense Act was it created what is now the Texas Indigent Defense Commission. The commission gets money from fees from bondsmen and lawyers, and it redistributes that money to all 254 Texas counties for indigent defense. It certainly doesn’t pay for every county to have a fully functioning indigent defense system. In Harris County, for example, we get about $4 million or more a year. But it also has money for programs for counties that want to improve indigent defense.

Harris County applied in 2010 and got the biggest grant that had ever been given to improve indigent defense, and that was the start of the public defender’s office. The good thing about the grant was they were able to put in certain requirements, such as we couldn’t take on too many cases. So there were caseload standards. We had to have parity and salaries similar to the district attorneys’ office, which made certain that we wouldn’t be one of those poorly run offices that you were referring to.

So right off the bat, because of those grant requirements, you’re already setting yourself up for success.

Yes. Dallas, for instance, which preceded the Fair Defense Act, has always had a history of high-volume work. We don’t have that.

So you start the office in 2010. How has it grown over the years?

In 2010, it was basically me, and then I hired people after that. Now, we’re very big because [when Democrats won a majority] in 2018 with the change in leadership in Harris County — Commissioner Ellis, [County] Judge [Lina] Hidalgo — are all very supportive of our office and have drastically increased our funding, with which we’ve been able to add many more lawyers. We’re in the process of a two-year ramp up to significantly increase the percentage of our appointments in the courts. I can’t even tell you how many employees we have on staff today because it’s increasing daily. But we have at least a couple hundred employees, most of whom are lawyers. And we serve the felony courts, the misdemeanor courts, the juvenile courts, appeals and writs also.

The major thing that’s changed in the last two years is we’ve added a holistic services division. Traditionally in public defender’s offices, you’d be appointed to a case, there’d be a disposition, and we were done with it. With holistic services, the idea is that our clients have many more needs than just representation in that case. They may need their record cleared. They may need help with family law matters or employment or things like drug treatment or mental health. All of those things fall under the umbrella of holistic services.

Wow. Not only are you providing the legal help needed, but you’re continuing to help these people even after their case has been resolved.

And we’re continuing to grow that part of the office. We’re a big office that does many different things. And that’s a bit unusual, at least in the scope of public defender offices in the country.

Although someone’s case in the eyes of the courts is resolved, that doesn’t mean the root cause of what led them to court in the first place is fixed.

Right. If you don’t have a place to live, that’s why you’re going to get caught for trespassing.

The term holistic defense was coined by a group called the Bronx Defenders, which is a nonprofit public defender organization. They were one of a number of public defender organizations that were born in the 1990s in New York when then-Mayor Rudy Giuliani basically busted up the public defender union because they had gone out on strike. To fill that void, a number of groups started, one of them being the Bronx Defenders, who modeled themselves on the idea of having teams of lawyers with various specialties — employment, law, immigration.

And they were studied by the RAND Corporation, which found they ended up getting better results in their cases because of that. I got a national study recently that reaffirmed the benefits of holistic defense. So it’s pretty well understood in our community that it’s something that’s needed in all offices.

It seems what you all are doing requires a lot of support from the top, especially among commissioners who have final say over budgets.

I have a law review article coming out this fall called ​“public defender independence.” And it addresses the issue that because we have to receive funding from somewhere, we’re always going to have that influence over us. Commissioners, you know, are also funding other departments like law enforcement and prosecutors. So there’s always going to be a split about whose needs come first and whose aspirations are more important.

But we are well funded and we’re treated pretty well. Now in terms of practice — the DA’s office initiates the cases, they decide which cases to try, they have a lot of power in that regard that we’ll never have. And, for instance, they have the support of law enforcement on all their cases. We don’t have anything quite like that.

We’ve spoken to Stephen Hanlon, a leader in driving public defense reform, who emphasizes that data is one of the most important aspects in improving the system. How does your office utilize data?

For one, we use data to track our workloads. It helps us be more reasonable about what we should be doing. Over time, we’ve reduced the workloads for our lawyers. It really helps us in making sure that no one is overworked and they have time to work on their cases.

Data is also important in showing the worth of the work we do. The Council of State Governments Justice Center did a study on us in 2013, which was then followed up again last year by the Meadows Foundation. Both studies looked at things like what our dispositions were in comparison to the private bar. Basically, what kind of results we were getting in our cases.

And they found that we were taking a higher percentage of cases to trial, we were winning more cases, and we were getting more dismissals. So those are the kind of measures that can give you an indication that the result of our work is an improvement of the system.

Before Congress right now is proposed legislation that would provide national caseload standards, funding for offices, etc. Have you followed the EQUAL Defense Act, and, if so, what are your thoughts?

I think there’s only so far you’re going to get at the federal level, but it could certainly be a lot of leadership for the states. There’s talk of, for instance, a defender general, who would mirror the attorney general. I think that might be a bully pulpit. I think they might be able to do what our indigent defense commission does: hand out grant money to further good practices. But I really don’t see the federal government picking up the cost across the United States for all public defense.

A hefty price tag, for sure.

We can’t even get the state of Texas to pick it up across the board. But I do think there are some practices that should be nationalized.

What are some of those practices?

Things like having both protections locally and nationally. For instance, I have a board that’s between me and the commissioner’s court. And the American Bar Association recommends that it be nonpartisan. When I started, it wasn’t nonpartisan. It had two commissioners, some active judges, a couple of lawyers in the community. We’ve since changed those bylaws so now there are no voting active judges, there are no commissioners; it’s mostly academics, practicing lawyers who don’t take court appointments, folks from the community. So it’s more representative.

Another practice is what we call ​“participatory defense,” which is including the community in your work. A lot of times we will encourage families of clients and clients who are out to get together so they can exchange information with each other. And when they see things that are wrong in the system, they are able to organize and make their voices heard.

And again, as you said, data. A better way to collect it would be to have national standards instead of everybody for themselves.

I’m curious to get your thoughts on the importance of having a qualified public defense attorney who’s not facing those obstacles we’ve talked about — overworked, too many cases, not enough time — to provide adequate representation for a client?

The problem with criminal defense is a lot of lawyers are working solo. The downside is that they’re not getting the kind of synergy that you would if you were at a big firm. For example, if you’re at Norton Rose, you’ve got associates and all kinds of people at your beck and call. And the DA’s office is like that, too. So to replicate that, a public defender’s office brings a lot of highly trained and specialized lawyers together who can work together and you get the benefit of that. The more folks you have working together, the greater basis of knowledge and specialization that you have.

What advice do you have for other counties or jurisdictions that are either planning to open a public defender office or make necessary reforms to have a better functioning office?

One of the things we’ve done successfully in Texas in encouraging public defender offices is getting several counties to go in on one together. We call them regional offices. And that way, the counties are getting the best bang for their buck. They get quality representation and they’re sharing the cost with other counties. It can be done even in places where there’s not a lot of cases or not a lot of lawyers.

I talk to county judges and I think they all understand they have to pay for representation, but that’s the bare minimum, and they want to do it the best way they can. We don’t want them cutting corners and cheating people out of representation. We want to give them the best options possible.