In a recently discovered memorandum, a case is made for case limits in criminal cases, especially those handled in indigent cases by appointed lawyers.
House Bill (HB) 1318, passed by the 83rd Texas Legislature, instructed the Texas Indigent Defense Commission (TIDC) to “conduct and publish a study for the purpose of determining guidelines for establishing a maximum allowable caseload for a criminal defense attorney that…allows the attorney to give each indigent defendant the time and effort necessary to ensure effective representation.” That study is now complete and available on the TIDC website where it can be downloaded as well.
Both national and state organizations make clear that attorneys can effectively handle only so many cases a year. Yet, in Harris County, the claim is that a small percentage of attorneys handle an extraordinarily large caseload of appointed criminal cases while reporting that caseload is only 40-65% of their practice.
According to the memo, there is no evidence that the disproportionate appointment system is based upon merit. Few of the attorneys with highest appointed caseloads ever go to trial. Yet they are the highest paid appointed attorneys in the system. The number of cases appointed by lawyer, by type, or by court can be viewed on the TIDC website here: http://tidc.tamu.edu/public.net/Reports/AttorneyCaseLoad.aspx.
The memo also explains a study undertaken to examine the work done by appointed counsel across the state which was then compared to work in Harris County. The study utilized 196 attorneys (private attorneys and public defenders) over a 12 week period. They logged their work and tasks into a computer program, resulting in a sample of the amount of time lawyers spend on their cases. Their numbers were sent to 319 attorneys to review and adjust based upon how much time they should spend on cases. Finally a panel of 18 senior criminal defense lawyers reviewed those results and again adjusted to reflect time that is generally required for cases. From those numbers, caseload standards were set based on the time available in the year and the time required for particular cases.
The results were that several Harris County indigent lawyers kept caseloads much greater than the Texas standard and the national standard. In short, the actual results in Harris County were the most egregious violations of the caseload maximums across the state. One attorney closed 969 cases (441 felonies and 528 misdemeanors) in one year! The highest caseload standard was 236 class B misdemeanors that could effectively be handled by one attorney in a one year period. This particular attorney (licensed approximately 7 years) threw in an extra 292 misdemeanors AND 441 felonies, which comprised only 65% of her total practice. That’s a huge caseload and tops the charts for Harris County. Another 23 attorneys top out at over 300 adult felonies per year. Of those 23, 6 had 400 or more and 2 had 553, which is apparently the cut-off for being paid. So 24 lawyers far exceed the caseload standards for indigent defense. Many others exceed the standards, though by not as great a margin.
The memo’s conclusion: The answer to improving private assigned counsel in Harris County is twofold: (1) establish reasonable caseload maximums, and (2) encourage a culture of investigating and researching cases.
The full memo can be viewed and downloaded here
This is an issue that Robert Fickman, a local criminal defense lawyer and Past President of HCCLA, has flagged for years. Data in the past has been based on the amounts paid to local appointed lawyers. This data was limited due to the fact that it came from the auditor’s office without specific detail. Now, with TIDC collecting specific data and attorneys self-reporting their practice percentages, the data paints a broader picture of the injustice in attorneys handling too many cases. They simply do not have enough hours in the day (or year) to properly investigate and prepare defenses and challenge the state’s evidence with these extreme caseloads. One of his recent blogposts on the topic can be found here http://blog.fickmanlaw.com/2015/06/harris-county-where-the-accused-are-treated-like-cattle/.