Texas experts dive into the state of public defense 60 years after Gideon decision

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On March 18, 1963, the U.S. Supreme Court ruled in Gideon v. Wainwright that “lawyers in criminal courts are necessities, not luxuries,” requiring states to provide an attorney in a criminal case when a person can’t afford to hire one.

As the ruling hits its 60th anniversary this month, The Texas Tribune partnered with the Texas Indigent Defense Commission for a half-day symposium Friday examining public defense in Texas. Discussions featured prominent figures like former state Sen. Rodney Ellis and death row exoneree Anthony Graves, as well as conversations on challenges in rural areas and innovations. Here’s a look at some of the highlights of those conversations.

One-on-one with Rodney Ellis 

Ellis, a Harris County commissioner who served in the Texas Senate from 1990-2017, was behind the 2001 passage of the Fair Defense Act, which allowed more impoverished people to have paid legal representation. There was also a mandate for Texas courts to have a formal process for providing defendants these lawyers.

“In Texas, we have to a great extent ignored the mandate of Gideon v. Wainwright,” Ellis told moderator Sewell Chan, the Tribune’s editor in chief, in a Friday interview. He said that the state of Texas has largely pushed the funding for providing counsel to defendants to the counties. About 17% of the costs of providing public defense is covered by the state, with the rest up to counties.

Asked if there should be an mechanism to force the state to more comprehensively fund public defense in the spirit of Gideon, Ellis said yes, but the question is how.

The commissioner also talked about the roles of law enforcement and prosecutors, saying they have difficult jobs and are under tremendous pressure but that “there are very few checks and balances there.”

Asked what the Legislature should do to improve the issue of indigent defense, Ellis emphasized funding.

“Just don’t give up hope on fairness,” Ellis said. “At the end of the day, it’s all we have that inspires us.”

Rural defense hurdles

Several attorneys representing rural communities talked about the challenges they faced replacing retiring attorneys. Recruiting young attorneys, who are saddled with debt, is tougher for smaller cities and towns because the pay is typically lower in less-populated communities.

James McDermott, the chief public defense attorney for the Far West Texas Regional Public Defender Office, said most counties don’t have a public defender’s office, so private attorneys often work on a “wheel,” meaning judges appoint them from a list.

McDermott, whose office serves five counties, said that his first assistant has about $250,000 in student loan debt.

“It is almost impossible right now for most people coming out of law school to find a way to move to a rural community and to sustain that kind of debt,” McDermott told Tribune reporter William Melhado, who moderated the conversation. McDermott added that with the increase of retirements, younger attorneys are also disinclined to go to rural communities because there aren’t people to learn from.

Victoria County Judge Ben Zeller said that with the challenge of indigent defense being pushed down to counties, you see a “patchwork of responses and programs and abilities to fund.” If indigent defense were funded at the state level, Zeller said, we might not see such inconsistency across the state. He also cited the budgetary benefits of regional public defender offices, which help ensure the protection of defendants’ constitutional rights.

Lakeshia Walton, a defense attorney for the Potter & Armstrong County Public Defender/Managed Assigned Counsel office in the Panhandle, said using a regional concept allows her office to have specialists beyond lawyers to better serve clients.

“Our office does have two caseworkers as well that focus on the mental health aspect. That population is pretty prevalent in the jail system,” Walton said. This allows the office to not just represent clients but connect them to needed services.

Asked about solutions, the panelists talked about incentives like tuition reimbursement, loan repayments, housing stipends, better pay and increased support from the state.

Walton said work-life balance is especially key for younger lawyers.

“We want to be able to experience, to continue growing as a person, so once we grow as a person we can be better for our clients,” she said.

One-on-one with Anthony Graves

Anthony Graves, who was wrongly convicted of the 1992 murders of six people and spent more than 18 years behind bars (12 of those on death row), said what kept him going when he was imprisoned were his faith and a bit of naivete.

“Naivete saved my life,” said Graves, who said that if he really thought he could be put to death for a crime he knew nothing about, he would have lost his sanity.

Graves, who now works as the director of public outreach at the Harris County Public Defender’s Office, said he feels a strong sense of purpose to speak out about the criminal justice system and about reform. He said that rather than feel sorry for him, people should hear what he says about the problems of the system he’s seen from the inside.

“I want you to make change,” Graves said during his interview with Chan, the Tribune’s editor in chief.

Graves also praised the holistic approach of offices like the Harris County Public Defender’s Office, which ensures that defendants don’t feel left behind. He said more public defense offices should employ formerly incarcerated people to work as peer navigators and use their lived experiences to help attorneys connect with clients and better manage their cases.

Graves said he never thought about leaving Texas despite what happened to him.

“I knew this was where the fight was,” he said

Innovations in public defense 

The final panel of the day discussed creative solutions to support public defense in Texas.

Gilan Merwani, the holistic defense director and social work supervisor for the Harris County Office of Managed Assigned Counsel, said holistic defense is about humanizing the process of public defense. The office employs social workers, investigators and other team members to ensure quality representation inside and outside the courtroom.

“Clients have intersectional issues, which means they go beyond the legal case, and we want that to be resolved and addressed so the client doesn’t keep coming through the legal system,” Merwani told investigative reporter Alex Stuckey of Houston Landing, who moderated the discussion.

Also on the panel was Rocky Ramirez, the law and technology resource attorney for Bexar County’s Office of Managed Assigned Counsel. He said that technology now allows public defense firms to build custom solutions based on the needs of an agency, whether it be document searches or communication tools, and share best practices with other counties and jurisdictions to help foster more efficiency.

Anna Maria Jimenez is a managing attorney for the Regional Public Defender for Capital Cases in Lubbock, an office that focuses on cases in which the death penalty is sought. The organization has satellite offices in Angleton, Austin, San Angelo, San Antonio and Terrell. She said attorneys there focus early in a case to convince a prosecutor’s office to consider options other than the death penalty.

Nora Picasso discussed her work as director for myPadilla, a Travis County-based organization that helps criminal defense attorneys connect with immigration experts to make sure their clients’ Padilla rights are protected. “Padilla” refers to Padilla v. Kentucky, a case in which the U.S. Supreme Court found that defense attorneys must inform noncitizen criminal defendants about deportation risks based on a conviction when they are considering a guilty plea.