New Approaches in Indigent Defense

Interviews

New Approaches in Indigent Defense

New Approaches in Indigent Defense

At Reinvesting in Justice, Wesley Shackleford, deputy director of the Texas Indigent Defense Commission, talks about indigent defense, procedural justice, and improving access to legal services for those who cannot afford it.

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AVNI MAJITHIA-SEJPAL: Hi. This is Avni Majithia-Sejpal and you're listening to the New Thinking Podcast. I'm at the Dallas City Hall with Wesley Shackelford, Deputy Director of the Texas Indigent Defense Commission in Austin. We're both here at Reinvesting in Justice, a conference that brings together a wide range of criminal justice practitioners to discuss challenges and highlight innovative work being done in the field of Criminal Justice today. Wesley is speaking on a panel about procedural justice a little bit later today, specifically as procedural justice intersects with thinking about racial disparity within the justice system. Wesley, welcome to the New Thinking Podcast.

WESLEY SHACKELFORD: Thanks, Avni.

MAJITHIA-SEJPAL: Today's big topic is Reinvesting in Justice. How do you interpret that?

SHACKELFORD: Coming at it from the indigent defense world, we're looking to find new innovative ways to provide required indigent defense services in working with partners in county government who are interested in trying new approaches.

MAJITHIA-SEJPAL: For the benefit of our listeners, can you summarize what your panel is going to be about and also what you specifically will be talking about?

SHACKELFORD: Sure. It's a diverse panel, the Chief of Police for Dallas and he's going to be talking I think about community relations with the police department especially with communities of color in Dallas. We also have panelists from my parent organization, the Office of Court Administration also based in Austin and he's going to be talking about procedural justice in the court system directly. I'll be addressing indigent defense systems and innovative programs that my agency's been involved in creating.

MAJITHIA-SEJPAL: Can you tell us a little bit about that?

SHACKELFORD: My organization provides grant funding to counties to help support the provision of legal services to poor people charged with crimes. I'm going to be talking in particular about our discretionary grant programs where we're partnering with counties who are interested in advancing their own systems through partnerships. Really moving in new directions from what I'll call the legacy system of court-appointed counsel systems, which is still the by far predominant form of provision of indigent defense services in Texas. Some of the programs that we've been working on are what we call managed assigned counsel programs. This is in communities where the courts who by statute are the ones in charge in Texas of determining who is going to be appointed to represent indigent defendants. They make the assignments on individual cases to specific attorneys.

They in some places have decided that that's not something they want to do. We've been supporting them in developing this new system. It really started back in 2009 in Lubbock County. The judges there took the initiative to essentially spin off the management of the appointment list and the assignment of counsel to a non-profit Bar-led organization. They started it with a subset of cases, mental health defendants and with some case workers to support the attorneys in that work. After a couple of years in learning the new system and what the issues were, they expanded it to the entire criminal court system. At this point in Lubbock all of the appointments are managed by this Bar-led organization. The courts have nothing to do with the selection of counsel. The Bar panels with the Chief Defender reviews all requests for support services like investigators, expert witnesses. They also review and approve all the fee vouchers which is another of the powers that is given to the judges in this state.

That was such a success that Travis County in Austin has also now launched the same system. As of this year the criminal court appointment system is managed by a non-profit Bar Association with Chief Defender, two Deputy Defenders, an investigator and so forth. This has been a big sea change and we see it as an opportunity for counties around the state who may not be ready to take over the entire system through the creation of, say, a public defender’s office where you have staff attorneys managing the provision of counsel. These are still private attorneys but it provides a lot of independence from the courts and it also provides an opportunity for more direct oversight and quality control which are things that judges aren't really in a position to do.

Chief Defenders who manage the system are. They help staff cases if need be. They provide mentoring services and then they annually review performance and provide pointers and training opportunities for all of the private assigned counsel attorneys in the jurisdiction.

MAJITHIA-SEJPAL: That's really interesting. You talked about the success of the reform initiatives in Lubbock County. Can you elaborate on that? What kinds of results are you really seeing?

SHACKELFORD: I think it is the same attorneys but I would say the quality is better. They've created mentoring programs both in Lubbock and now in Travis County which I think has the effect of enhancing the quality of representation, bringing up the new generation. I think Lubbock, one of the challenges they faced was an aging criminal defense attorney population retiring. It wasn't really a process without a public defender's office to mentor and train young attorneys who wanted to go into the defense world. The old model of starting in a prosecutor's office, it wasn't really attractive to a lot of young attorneys so they've been able to establish a full-scale mentoring program under the auspices of the Managed Assigned Counsel program. I think that's probably one of the biggest enhancements.

MAJITHIA-SEJPAL: Why is procedural justice important according to you, and how can it really speak to addressing issues that minorities face within the criminal justice system?

SHACKELFORD: For the criminal justice system to have credibility in the community or at large, there has to be justice perceived. It's both the appearance and the actuality of fairness in the proceedings. Really that's what the initiatives that we've been undertaking are trying to enhance. The court-appointed counsel system can at least lead to the appearance that the defendant's attorney may not have their interests aligned with the defendant. You speak to defense attorneys and they'll talk about the difficulties in establishing a good relationship with their client when they may feel like the attorney was foisted on them and works for the judge. Even the prosecutor when in fact, the prosecutor doesn't have anything to do with it but there's still that perception. The procedure, if you will, of having the court assign it can lead to that and that undermines really the whole justice system and really is at the root of the second initiative that I wanted to speak about.

That's a client choice initiative that's underway in Comal County which is New Braunsfels. It's a small to mid-size community between San Antonio and Austin. They are for the first time in the United States have implemented a system whereby the clients, the defendants who've been charged with a crime, get to select the attorney who will represent them. This is the system that's in place in common law countries across the world, England, Scotland, Australia. It has been for many, many years but has never really been tried here. We got the idea from a Cato Institute report, Free Market Principles from 2010 and Norman Lefstein which is one of the thought leaders in Indigent Offense nationally from the Indiana University School of Law, has partnered with us to create the program.

There was a very large stakeholder committee with a national oversight board to develop the model and it began operation just at the beginning of this year. There's going to be a full evaluation of course, but the main concept behind it is that the interests of the clients are going to be aligned with their defense attorney rather than the defense attorney's interests are aligned with the client. The only way they're going to get appointments in the system is if a client chooses to have them represent them. It piggybacks on the court appointed system. These are attorneys who have already been qualified and screened by the judges, which is the system we have, as being qualified, have the requisite training and experience to provide representation. From that pool, that relatively large list, basically all the criminal defense attorneys in the community, the clients can choose.

We found so far that about three-quarters of them do elect to choose their own attorney. If they don't maybe they don't have any knowledge, they will be assigned an attorney off the wheel as they always have been. It turns out that attorneys do have reputations in the community and defendants can get information to make an informed decision. It's really no different than anyone else who need to buy a service be it hiring a plumber or an accountant or anything else. You gather the information and you make a choice about who you think is going to provide you the best service.

The attorneys at least initially, have already reported that it's much easier to establish a trusting relationship with their client because they feel vested in the choice. This was the attorney they in fact chose to represent them. It's going to be really interesting to see what the results are. Does it improve the quality? What are the perceptions of the clients in the community? What do the defense attorneys report? There's a robust evaluation by the Justice Management Institute that's going to take a look at this and we'll have a full report in 2016.

MAJITHIA-SEJPAL: What are some of the challenges facing indigent defense today, particularly as it intersects with procedural justice and issues of disparity?

SHACKELFORD: The overarching issue and it may always be issue is inadequate resources. In public defender programs and assigned counsel systems, if there isn't enough funding to provide meaningful representation, then it's very hard to have procedural justice. You can have a system of attorneys who are there in name only who stand up with the defendant while they plead guilty to the crime they've been charged with and accept the offer that the prosecutor makes. We do have a system that's based largely on guilty pleas. The challenge is when the defense attorneys don't have adequate time and resources to properly investigate the cases that you can undermine the belief that the system is fair. If you're in the defense community, if your attorney doesn't have time to actually track down the witness that may be able to attest to your defense, then you're not going to have any trust in the system. I think that's probably the overarching consideration.

MAJITHIA-SEJPAL: Thanks for talking to me today.

SHACKELFORD: Thanks for having me.

MAJITHIA-SEJPAL: I'm Avni Majithia-Sejpal and I've been talking to Wesley Shackelford at Reinvesting in Justice. To listen to more New Thinking Podcasts or to learn more about our work, you can visit our website at www.courtinnovation.org. Thanks for listening.

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