When Travis County overhauled its system of providing legal representation for the poor back in 2015, criminal justice advocates, judges, attorneys and prosecutors had high hopes.
An independent agency would oversee most indigent defense in the Austin area, with a staff of nearly a dozen and an annual budget of more than $1 million. With the help of nearly $2 million in state funding over the last three years, the agency would make sure private lawyers who agreed to represent low-income people were doing a good job for their clients and weren’t juggling too many cases at once.
If it worked, they thought, Travis County’s solution could become a model for the whole state.
So the architect of the new system was surprised to learn recently that despite all the reforms, one local attorney, Cheryl Hindera, was appointed to a whopping 349 felony and 434 misdemeanor cases last year. According to state guidelines, that should be the work of about four full-time lawyers.
“That’s too many cases,” Mike Lynch, a retired Travis County judge who came up with the idea for the new local indigent defense system, said when a Texas Tribune reporter informed him of Hindera’s caseload. “I practiced law for 20 years, and I don’t think I could handle that many cases, or that any lawyer should. I didn’t know the numbers were that high.”
Because Travis County doesn’t have a public defender’s office — except for juveniles and some of the most mentally ill defendants — the county pays more than 200 private local attorneys like Hindera to represent adults who can’t afford a lawyer. And the numbers show that she is among a small group of Austin attorneys who are being appointed to far more cases than experts believe any one lawyer could handle.
Things were supposed to improve with the 2015 reforms. That’s when the county decided to shift control of the indigent defense system away from elected judges, who had historically decided which lawyers got appointed to represent poor defendants — leading to widespread allegations of favoritism and concerns that overloaded attorneys were providing poor representation.
A new agency called the Capital Area Private Defender Service now oversees the whole system, which is known as a “managed assigned counsel” system. Though its staff still reports to Travis County court administration, which reports to the judges, the office decides who is qualified to represent indigent clients in Travis County and has the power to take some attorneys off the court appointment list. The agency also gives attorneys more access to investigators, experts and social workers — extra expenses that judges could deny under the old system.
Yet since CAPDS began operating, a handful of area lawyers who were already overloaded before the reforms are now handling even more cases than they were before.
According to data from the Texas Indigent Defense Commission, the 10 private Austin-area attorneys with the most appointments handled an average of 533 cases in 2017 — compared to an average of 428 in 2014, the year before the new system began.
Topping the list is Hindera, who was appointed to 357 cases by judges in 2014 — still above state guidelines, but a far cry from the 783 cases she worked last year with CAPDS handling court appointments. Next on the list is Ray Espersen, who was appointed to 623 cases in 2014 (including some in a neighboring county) and took on more than 650 last year.
Espersen declined to comment for this story. Hindera told the Tribune in an email that “unlike some of my colleagues, I am able to work anywhere from 10 to 12 hours a day — including Saturdays and Sundays — because my children are adults and my health is pretty good.”
She added that her caseload has gone up lately because she’s qualified to represent mentally ill defendants, a distinction that relatively few area attorneys have. On top of that, she said, the data doesn’t account for the fact that some clients face multiple charges that are each treated as a separate case.
Such a workload “just seems impossible to me,” Travis County Commissioner Jeffrey Travillion said during a public meeting about the CAPDS program last week. “There are only 365 days in a year!”
Lynch is confident that the new system in Travis County is far better than the old one. But he said lawyers are still paid so little to represent the poor that there aren’t enough qualified ones willing to do the job. That means those who are left “have to do a lot more work than they probably ought to,” he said.
Because of her volume of cases, Hindera took home nearly $215,000 for the indigent defense work she did last year, which is more than any local prosecutor makes. Most lawyers get a flat $600 for a typical felony case and $125 to get someone out of jail on a felony, regardless of the hours they work on a particular case. The rates were even lower before the CAPDS program, but most agree they’re still not high enough.
“Attorneys don’t see the payoff because going out [to the jail] is a huge time suck for them,” Meg Ledyard, an analyst for Travis County courts, told county commissioners last week. “It comes down to money. A lot of our problems have to do with funding."
In a brief phone interview, CAPDS Executive Director Ira Davis said he's working to make improvements to the system. He declined to comment further.
"Travis County's in a different league"
The concept of “managed assigned counsel” that Travis County is experimenting with is relatively new in Texas, but it’s generated a lot of buzz. The idea is to continue letting private lawyers handle most legal representation for the poor — instead of the costly option of creating and staffing a public defender’s office — but offer them proper training and oversight to improve the quality of their work. (More than a dozen Texas counties have public defender’s offices, though most only handle a portion of indigent defense cases.)
Jim Bethke, who stepped down last year as head of the Texas Indigent Defense Commission, was thrilled when Travis County applied for a state grant to try it out. He now runs a similar program in Lubbock County, and Collin County also has one for some mentally ill defendants.
But “Travis County’s in a different league,” Bethke said, because it’s one of the state’s big urban centers. No other large Texas city has an agency like CAPDS to monitor the work that private attorneys are doing for the poor.
So why has the caseload for some Austin-area lawyers actually increased?
“I wish I had a good explanation for that, but I don’t,” Bethke said. "I believe in what that program's doing. Do I think it can be done better? Absolutely."
Part of the issue is how CAPDS measures an acceptable workload. The agency’s policy is to stop giving lawyers any more cases if they’re handling more than 100 misdemeanors and 90 felonies at any given time. Hindera never exceeded those limits in the last year, so the appointments kept coming.
Ledyard told county leaders last week that CAPDS is working on coming up with better quality controls. She acknowledged the current system could encourage attorneys to finish their cases as quickly as possible so they don’t exceed those limits.
Bethke said the situation is better in Lubbock County, where attorneys are only allowed to handle about 85 cases at a time. They also get $75 an hour to represent a poor felony defendant, compared to the flat $600 rate Travis County pays. Assuming that the average Texas lawyer spends about 12 hours on a low-level felony case ending in a plea bargain or dismissal — which is what a 2015 state study found — the lawyer would get $900.
While Travis County lawyers aren’t earning much more per case under the new system than they did before, data indicates that it is leading to slightly better results for defendants: 50 percent of misdemeanor defendants who needed a court-appointed lawyer were able to get out of jail last year without having to pay bond, compared to 46 percent in 2014, before the new system was adopted.
They also spent an average of nine days in jail last year, up slightly from eight days in 2014. That’s still much longer than similar defendants who could afford their own lawyer: They spent an average of just one day in jail last year.
By most measures, the new court appointment system hasn’t done much to erase the large, persistent gulf between what happens to people with court-appointed and those with privately hired lawyers in Travis County.
For example, in 2014, 90 percent of poor defendants convicted of a misdemeanor got a jail sentence — a number that nudged down to 88 percent by 2017. Meanwhile, just 54 percent of wealthier defendants who had their own lawyer got jail time for misdemeanor convictions in 2014, and that number dropped to 45 percent three years later.
Ledyard pointed out that people who can’t afford their own lawyer are more likely to spend time in jail for other reasons — they probably can’t afford bail, and they may not have stable housing or a job.
But Travis County Judge Sarah Eckhardt doesn’t think poverty is the only factor. She pointed to a study presented to commissioners last week in which researchers analyzed the outcomes of more than 2,000 local felony drug possession cases. The Council on State Governments found that the most important factor in defendants’ jail time or conviction rate was the type of legal representation they received. It was even more important than a person’s race or other demographic factors.
“The disparity in outcomes between court-appointed and privately paid [lawyers] is astounding,” Eckhardt said. “If money were no object, I would establish a public defender’s office right away to cover as much of the indigent defense demand as possible.”
Eckhardt said she hopes the county will consider the idea, and she plans to propose a boost in attorneys' pay rates in the coming months. Travis County spends about $12 million a year on indigent defense right now, and a fully funded public defender's office would likely cost a lot more than that.
In the meantime, critics say that low pay and overloaded attorneys means that poor Texans spend more time in jail and prison, at a huge cost to government and society.
“Folks have known for a long time that the compensation has a huge impact on what kind of representation people get,” said Rebecca Bernhardt, former executive director of the advocacy group the Texas Fair Defense Project. “Now, we have evidence. If you’re going to pay people that poorly, you’re going to get what you pay for.”