Like 97% of children ages 10 to 16 charged with a crime in Travis County, he was unable to afford a lawyer and was therefore represented by the juvenile public defender’s office.
Because of legislative efforts by the office, the boy is guaranteed counsel and attends hearings unshackled. His lawyer is paid similarly to those in the district attorney’s office.
Most adults charged with crimes in Travis County are also unable to afford an attorney, but they lack the same protections. In fiscal year 2017-18, the county found nearly three in four screened defendants to be indigent, or unable to afford an attorney. The threshold for indigence is 125% of the federal poverty line, or $15,612.50 in annual income for an individual.
But Austin is the largest city in the country without a public defender’s office to serve them. Instead, indigent clients are represented by contracted attorneys paid a flat fee—$600 for a typical felony case, less for a misdemeanor.
The median hourly rate for full-time private attorneys in 2017 was $281, per the Texas Bar Journal.
This system incentivizes attorneys to take on as many cases as possible, data shows.
According to state-commissioned guidelines, attorneys should carry no more than 236 misdemeanors or 174 felonies annually.
In 2018, one appointed attorney took on 628 cases, per the Texas Indigent Defense Commission. One in seven exceeded the maximum caseload of 236; nearly all had a mixture of misdemeanors and felonies.
“What’s different, I think, about Austin is that a significant part of the criminal defense community has a business model [in which] court appointments are an integral part,” said Kameron Johnson, director of the juvenile public defender’s office.
In contrast is the DA’s office, which hires salaried attorneys. Last year, the average caseload was 236.
“I don’t think that anyone would think that we could run a DA’s office better if we contracted that out,” Johnson said.
Things are starting to change, however.
In August, the county received a $48 million state grant—the largest ever awarded by the TIDC—to create a public defender’s office.
Advocates said the office will better serve defendants because its staff can build legal expertise, share resources and respond to oversight in ways that individual contractors cannot.
When the grant expires in 2024, Travis County will have a 67-person staff—about two-thirds attorneys—taking on 30% of indigent cases. The remainder will continue to be appointed private attorneys.
In search of a culture
In late September, the Travis County Commissioners Court tasked a 12-member oversight group—made up of legal professionals, local advocates and community leaders—with finding a chief public defender.
“With a brand-new office, the person that you hire is really going to have both the administrative and bureaucratic skills to get all your workplace processes and workflows [in place],” said Chito Vela, a criminal and immigration defense attorney who is a member of the group. “But then on the other hand we also want somebody who has the softer qualities.”
These include compassion and leadership skills.
“Being a lawyer is completely different than managing and motivating a whole office full of different people,” said Melissa McRoy Shearer, director of the Travis County Mental Health Public Defender’s Office, which represents adults with serious mental illnesses.
The group finalized a job description Oct. 15 and expects to interview candidates by December.
Once hired, the new chief will need to build not only a staff but also a culture.
While the county was in the process of developing its proposal for state funding, some local criminal defense attorneys and criminal court judges pushed back against the new office, which they argued could threaten the existing system of appointments.
“It’s creating this new culture that doesn’t exist now,” said Maria Emerson, a member of Advocates for Social Justice Reform, or ASJR, a local organization that helped mediate the proposal drafting process. “It’s us and them, where we’re trying to really make it a we.”
Investing in public defense
Public defenders are salaried and have caseload limits guided by American Bar Association standards.
These limits allow public defense attorneys to do more than just triage cases, Shearer said, and instead spend time with each client.
A centralized public defender’s office can also better identify trends and strategies.
“A private attorney coming into the courtroom may do one or two cases a year,” said Bradley Temple, an associate juvenile court judge. “They’re not going to develop that expertise and that specialization, nor are they going to form those relationships [with district attorneys and judges] that are really important.”
Public defenders also have more resources, including staff investigators and social workers.
In the mental health public defender’s office, staff meet twice a week to review ongoing cases, Shearer said. Teams of public defenders and social workers talk through their strategies and solicit feedback from their colleagues.
When the new office is up and running, these benefits will also extend to private attorneys.
“We’ve always embraced and supported the private bar,” Johnson said. “Because of the specialization and the expertise that we have, they will come to us when they have these juvenile cases.”
Both Johnson and Shearer’s offices host continuing education and training, open to public defenders and private attorneys alike.
Alex Bunin is the chief of the Harris County public defender’s office, which he helped found in 2011, as well as a member of the oversight group.
A 2013 evaluation by the Council of State Governments Justice Center found that the Harris County Public Defender’s Office saw better outcomes than assigned and retained attorneys.
This year, nearly 60% of the office’s felony clients were acquitted, dismissed or avoided a custody sentence, Bunin said via email.
The Travis County Public Defender’s Office will begin taking cases in 2021 and ramp up to representing 30% of indigent clients by 2024.
In the meantime, the chief public defender and oversight group will be tasked with building a system of checks and balances to make sure the new office fulfills its promise.
“I think one of the reasons why there was the disconnect [between advocates and private attorneys] early on is because anecdotes were substituted for data,” said Bob Batlan, a member of ASJR. “But until you have a measurement system, it’s all finger pointing.”
Additionally, members of the oversight group and advocates alike have expressed hope that the new office could eventually mirror the juvenile public defender’s office, which takes almost every indigent case—even as they acknowledge serious funding constraints and likely pushback from the private bar.
“My experience with [public defenders] is far superior representation,” said Rick Cofer, a criminal defense attorney who represents juveniles in cases where there is a conflict.
“You get what you pay for.”