Texas study finds prison defendants not properly represented

A study recently released after an intense investigation conducted by members of a State Bar committee found several issues with the way Texas provides defense lawyers to prison inmates who need legal representation.

The “Review of the Operations of State Counsel for Offenders” was completed by members of the State Bar of Texas Legal Services to the Poor in Criminal Matters Committee.

“Members of the State Bar committee worked on this report, but the State Bar of Texas did not issue it. The authors published it on their own behalf. The report involves evaluating other state agencies, which is outside the purview of the State Bar of Texas. This committee does remarkable work, and we value their expertise and input on low-income Texans’ representation in criminal matters,” said Amy Starnes, the State Bar’s public information director.

Lawyers who work for the State Counsel for Offenders (SCFO) office are employed by the State of Texas, operate under a budget subservient to the Texas Department of Criminal Justice Board – the same board that employs and directs the team of lawyers who prosecute those same inmate defendants – and the same board that oversees day-to-day operations within the prison system that seeks to prosecute them.

Those SCFO attorneys and the staff that supports them are assigned to different divisions within the department that include: “the criminal defense section that represents indigent inmates indicted for allegedly committing felonies while incarcerated in a TDCJ facility.

“Attorneys in the civil defense section who ‘represent indigent offenders who are subject to court proceedings under the Sexually Violent Predator (SVP) civil commitment statute.’

“The legal services section assists inmates in a variety of legal matters, including immigration removal proceedings; biennial reviews and petitions for release for clients under a civil commitment order; prisoner exchange programs with foreign governments; assistance to inmates in filing Petitions for Discretionary Review (PDRs); nunc pro tunc motions to correct errors in a judgment; and other legal matters.

“Finally, the appellate section represents inmates in civil commitment appeals; criminal appeals where an attorney in the Criminal Defense section represented the inmate; and occasionally writs of habeas corpus.

“The appellate section also has “Time Specialist” legal assistants who assist inmates with time credit issues; parole and mandatory supervision eligibility questions; and applications for shock probation or a time-cut.

“SCFO ‘will not help offenders with civil rights issues, TDCJ policy or procedure issues, fee-generating cases, and various other legal issues depending upon the circumstances,’” according to the report.

Early on the report states: “The purpose of this report is to determine if there are problems in the structure and operations of SCFO and the provision of indigent defense services to inmates in Texas.”

The report goes on to say if such issues are developed, the committee will make recommendations on how those problems might be address with both the state bar and the Texas Legislature.

The state bar committee based its investigation on an earlier document entitled “Ten Principles of a Public Defense Delivery System”, authored by lawyers at the American Bar Association.

The Texas team adopted a set of survey questions that it presented to respondents who either currently work, or who in the past have worked, for the state-supported prison inmate defense team.

And although none replied, the survey also was sent to members of the Special Prosecution Unit, the group that prosecutes crimes committed in Texas prisons.

The Special Prosecution Unit is overseen by a board made up of district attorneys in counties where prisons or juvenile justice facilities exist.

McLennan County District Attorney Abel Reyna was just elected to serve as chairman of the board.

While the two offices are separate, they end up working on cases together so they are aware of what their counterparts face, Reyna said.

“I think the defense lawyers are paid less and I don’t think they have the advantages the prosecutors do,” Reyna said.

The first survey question dealt with whether SCFO attorneys had the independence to properly and vigorously defend their clients and to that question 84 percent responded they strongly disagreed or disagreed that SCFO operated as an independent agency.

The committee supported its findings with statements like this one from one of the attorneys who responded: “You cannot be independent from the agency that controls the purse strings.

Many of the lawyers who answered the survey gave the state bar permission to use their names, but the initial report included no names.

“Their (TDCJ’s) goal seems to be providing an illusion of representation rather than actively advocating for a position contrary to the agency’s interests,” the respondent continued.

Another question dealt directly with the division’s budget brought this response: “We had severe restrictions on travel (which is absolutely necessary to see clients scattered around the state), we had faulty and bad equipment that was emblazoned with TDCJ logos.”

And: “It is an ongoing problem that top management gives orders that conflict with the interests of the clients we serve to support the actual or perceived desires of the Board of Criminal Justice.”

Seventy-seven percent of respondents said they strongly disagree or disagree that SCFO policies currently in place do not hamper the zealous representation of their clients.

“I once had a client that wanted to refuse parole in order to complete sex offender treatment and try to avoid civil commitment,” one respondent wrote.

“I called the parole division just to try and find out the status of his parole review.

“General Counsel for the parole board contacted the SCFO director who told me not to ever contact the parole board or parole division again,” he wrote.

Another wrote: “I frequently found that SCFO policies and rules either directly hampered basic representation (not to mention zealous representation) or discouraged zealous representation by attempting to dis-incentivize zealous representation.

“This included: limiting working hours (even directly preceding trials), failing to provide functioning access to legal research, prohibiting accessing office legal research from outside the office, ongoing failure to provide basic legal material necessary for trials (such as pattern jury charge books), and refusing to let investigators access social media or run records searches for missing witnesses.

“Again, this only notes a few of the many problems,” this respondent wrote.

Seventy percent of respondents said they didn’t believe SCFO attorneys had sufficient independent discretion to properly represent their clients; more than half said they think indigent clients are not properly screened and again more than half said they don’t believe SCFO lawyers are provided the proper time or location to visit their clients to prepare their cases.

In the report’s summation, investigators first address the funding problem, saying the State Council for Offenders should operate as a separate agency that is funded independently from the Texas Department of Criminal Justice and from its governing board.

“The committee is most concerned with SCFO’s lack of independence from TDCJ, inappropriate interference by SCFO management into staff attorneys’ representation of clients, and lack of parity with the prosecution function in regard to prisoners charged with crimes allegedly committed in correctional institutions, parity of institutional independence, and parity of resources,” the recommendations section begins.

“The committee also believes that a more comprehensive review of SCFO’s operations may be helpful,” the investigative committee’s report says.

Secondly the investigating committee recommended striving for parity on both sides: “State funding for SCFO and the defense of indigent inmates charged with crimes committed in TDCJ institutions, as well as the defense of indigent offenders who are subject to court proceedings under the Sexually Violent Predator (SVP) civil commitment statute, should be increased in order to provide quality, effective representation.

“Such state funding should ensure parity between the defense and prosecution functions, including staff and attorney salary levels, as required by Principle 8 of the ABA’s Ten Principles of a Public Defense Delivery System,” the report said.

And third the report said: “In lieu of the creation of an independent SCFO and parity in funding between SCFO and the prosecution function, the Texas Indigent Defense Commission (TIDC).

“The TIDC should coordinate with the Texas Department of Criminal Justice (TDCJ) to conduct an evaluation of the operations of SCFO.

“The study should include an evaluation of attorney caseloads as they compare to national standards; attorney salaries as they compare to attorney salaries in the SPU; the SCFO budget as it compares to budgets in similar offices in other states; the use of investigators and experts, case outcomes, and how the structure and operations of the SCFO compare to the recommendations of the American Bar Association's Ten Principles of a Public Defense Delivery System; as well as any other best practices determined by the TIDC.

“A report including the results of the study should be submitted to the Legislative Budget Board and the Governor not later than September 1, 2018,” the recommendations concluded.

“There may be need for some change,” Reyna said, “but it will require action by the state legislature to change current statutes and policies,” Reyna said.