Indigent Defense Assessment

Work Report

FINAL

Medina, Uvalde and Real Counties, Texas

August 2012

Indigent Defense Assessment

Managing to Excellence Corp.Indigent Defense Assessment

Work Report

Contents

1Executive Summary

1.1Overarching Items Identified

1.2Readiness for Video Magistration

1.3Recommendations and Next Steps

2Current State Assessment

2.1District Courts

2.1.1District Court Organization

2.1.2District Court Policy

2.1.3District Court Processes

2.1.4Technology

2.2Medina County

2.2.1Medina County Organization

2.2.2Medina County Policy

2.2.3Medina County Processes

2.2.4Medina County Technology

2.3Uvalde

2.3.1Uvalde County Organization

2.3.2Uvalde County Policy

2.3.3Uvalde County Processes

2.3.4Uvalde County Technology

2.4Real County

2.4.1Real County Organization, Process and Technology

2.4.2Real County Policy

3Review of Current State Operations

4Recommendations

4.1Organizational Recommendations

4.2Process Related Recommendations & Best Practices

4.2.1Identify current indigent defense violations and resolve immediately

4.2.2Update the plan to reflect actual practice based on developed standards

4.2.3Implement new consistent process to support and roll out Video Magistration

4.2.4Work with arresting agencies to accelerate receipt of paperwork

4.2.5Instill a defined timetable for activities

4.2.6Completion of Affidavit of Indigency

4.2.7Affidavit of Indigence: verification or review

4.2.8Convert attorney appointment wheels from manual spreadsheets to a computerized system.

4.2.9Develop a set of policies, rules and standards for court appointed attorneys

4.2.10Attorney Visitation

4.2.11Regularly assess the fixed fees and compare the use of hourly rate

4.2.12English not as first language

4.2.13Reduce un-represented defendants appearing in the Courts

4.2.14Develop a set of metrics and a dashboard to manage the process

4.3Long-term System Solution

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Indigent Defense Assessment

Managing to Excellence Corp.Indigent Defense Assessment

Work Report

1Executive Summary

Medina, Real and UvaldeCounties retained Managing to Excellence Corp to assess the way indigent defense is currently handled with a view to identifying potential improvements to processes, controls and systems. This assessment also considered any functionality fit gap for the potential adoption of the “Fair Indigent Defense online” (FIDo) system developed in coordination with the Indigent Defense Commission.We have also included within this report a consideration of the impact of rolling out video magistration across the counties, and a recommended plan of attack.

The assessment generated significant interest across all departments that are impacted or have input to the process, with the level of participation from all departments being extremely high. Over the period from May 21st to date, the consulting team consisting of Mark Kenneth,Erick Flatt, Brad Sibley and William Walsh has completed all elements of the Statement of Work, including:

  • Gathered data and information to assess gaps to implementing the FIDo solution;
  • Interviewed over thirty staff throughout the entire indigent defense process from magistration through to judgment and attorney payment;
  • Gathered detailed notes on existing processes at a level of detail to allow assessment;
  • Validated existing process through cross checking and visual verification where possible;
  • Reviewed the operations across all precincts in both Medina and Uvalde, noting differences between locations;
  • Discussed the county operations with Real County, County Judge
  • Compiled this final report of findings, identifying recommendations and proposed ways forward.

Name / Role / Location
Judge DuBose / District Judge / Uvalde
Christina Ovalle / District Clerk / Uvalde
Lela Ballesteros / District Court Coordinator / Uvalde
Judge Mitchell / Uvalde County Judge / Uvalde
Alice Chapman / County Auditor / Uvalde
Judge Kennedy / JP #1 / Uvalde
Judge McIntosh / JP #2 / Sabinal
Judge Schaefer / JP #3 / Utopia
Judge Martinez / JP #4 / Uvalde
Judge Luna / JP #6 / Uvalde
John Dodson / County Attorney / Uvalde
Ramona Hobbs / County Clerk / Uvalde
Matt Mitton / Jail Administrator / Uvalde
Max Dorflinger / Jail Administrative Sergeant / Uvalde
Diego Ovalle / Probation/Pretrial Services / Uvalde
Billy Gonzales / DA and Probation Liaison / Uvalde
Juan Terrazas / Court Coordinator / Uvalde
Judge Torres / County Court of Law Judge / Hondo
Judge Barden / Medina County Judge / Hondo
Judge Klaus / JP #1 / Hondo
Judge Haby / JP #2 / Castroville
Judge House / JP #3 / Hondo
Judge Montgomery / JP #4 / Devine
Terri Martinez / County Auditor / Hondo
Debbie Keller / Indigent Defense & Pre-Trial Services / Hondo
Eva Rivera / County Clerk (temporary) / Hondo
Andrea Pope / Chief Deputy Clerk / Hondo
Jan Quintana / Jail Administrator / Hondo
Glenn Sims / Jail Training Supervisor / Hondo
Charles Bryson / Deputy / Hondo
Janna Heilig / Assistant Court Coordinator / Hondo
Judge Merritt / Real County Judge / Leakey

This report is organized by County, reviewing each element of the organization, process, policy and technology.The District Courts are reviewed within a single section because the jurisdiction crosses county lines.

1.1Overarching Items Identified

The indigent defenseprocess as a whole can be summarized to the following major groupings:

Within this process there are several core requirements for effective indigent defense.

  1. Prompt and Accurate Magistration;
  2. Consistent Indigence Determination;
  3. Minimum Attorney Qualifications;
  4. Prompt Appointment of Counsel;
  5. Attorney Selection Process;
  6. Compliant Payment Process.

Each County has its own areas that could benefit from change to ensure compliance. The following are some of the main potential areas for focus:

  • Magistration is not done at a set time every day; therefore jail personnel who support the process do not have a regular schedule for paperwork and package completion;
  • Jail personnel (other than in Medina) are currently responsible for collecting Affidavit of Indigence data from the defendants. This important process is therefore subject to the variances of shift; turnover; training levels and split of the completion and review steps of the process;
  • For Uvalde, a more consistent process should be implemented to ensure the decision made by each defendant to deny or request for a Court Appointed Attorney request is documented and properly forwarded, and that adequate support for completion of affidavit of indigenceis given for all Felony and Class A & B misdemeanor case types within the required timelines after Magistration or request (whichever earlier).
  • There is currently no validation of any of the information on the Affidavit of Indigence form (other than in Medina). An appropriate level of data should be validated to identify flagrant abuse of higher risk applications;
  • In Medina, consider verifying a sample of cases rather than 100% of cases. Focus on those affidavits that may have the highest likelihood of being falsified, incomplete or income/asset understated. This would free up staff time for other compliance monitoring activities(see, for example, the TIDC report “The Costs and Benefits of an Indigent Defendant Verification Program” at
  • The “fairness” of allocation of cases to attorneys cannot be easily assessed; other than by reviewing manual checklists, cross checking against case files or reviewing attorney payments;
  • Court appointed attorneys cannot be entered against unfiled or unindicted cases in the current systems; since it can take up to several months for a county case to filed and given a case number, the risk of errors or missed items is higher than it should be;
  • In Uvalde County, appointment of attorneys is done via email, with no formal checking whether attorney has received the email, or has responded to it. Medina has a strong process of email and fax, requiring verification from Attorney by return fax;
  • There is no follow up to ensure that the attorney has either contacted the inmate/accused or visited the individual. There are no system reports that support or monitor this process;
  • There is not a strong process to ensure verification of attorney qualifications, compliance with CLE and other requirements to be on specific wheels;
  • Complaints from inmates about attorney performance are not logged into a system or monitoredother than in a manual way.

The details behind each of these findings, additional items, specifics by County and recommendations are covered later in this report.

1.2Readiness for Video Magistration

As a by-product of this assessment, we managed the vendor responsible for implementation of the video magistrationhardware into the Uvalde and Medina Jails (Visionality). We validated that the hardware had been installed in accordance with the Purchase Order and was operational. Base training in the use of the devices was performed by the vendor; however we recommend that prior to roll out, a set of standardized policies, processes and end user “cheat-sheets” are developed. As part of our assessment discussions with each elected official or employee, we discussed and assessed the potential impact on their processes, paper flow and training of implementing this video system. In general, we believe that Uvalde and Medina counties are prepared to move forward in the near future toward this goal, assuming some pre-requisites (such as standardization of forms, processes, timelines and policies) can be accomplished that will aid the repeatability and consistency of processes.We also discussed, demonstrated and recommended the use of a standardized Magistrate Warning DVD similar to that in place in Bell County.It is important to ensure that the latest guidelines from the Indigent Defense Commission are considered during the decision on use of a DVD like proposed.

Major items for consideration:

  • Standardization of main magistration time every day;
  • Adoption of a standard way to communicate and deal with required ad-hoc magistrations after the daily hearing;
  • Address technology integration of Real County;
  • Procurement of a multi-function printer/fax/scanner machine able to “scan to email”directly to on duty magistrate (Uvalde & Real);
  • In Uvalde, standardize magistrate form for all offense classes (no old Class C form);
  • Personal Bond Department policy and integration into the process;
  • PR Bond policy standardization and integration into the process;
  • Pre-Trial services integration and approach for indigency and personal bond screening;
  • Procure DVD player or use TV USB slot to play standardized Magistrate Warning;
  • Address the security requirements and define the roles that have the right to index, view, download and delete recorded magistrations;
  • Address the retention management approach for recorded magistrations (91 and 120 day timelines at a minimum assuming the paper or scanned version Magistrate Warning is retained) and establish County policy;
  • Standardize processes for EPO, Interlock etc. as part of magistrate process;
  • Establish standards for EPO process so defendants do not require transportation from jail for hearing;
  • Decisions on method of signature for manual magistrate warning, EPO, Interlock, Conditions of Bondetc;
  • Long term strategy to automate form generation and signature for Magistrate forms;
  • A stated future goal is to use the video conferencing solution to allow defense attorneys to contact their clients in jail. We reviewed the potential locations for this in both jails and have concerns as to the security of the devices and officers given the unattended nature of attorney/client visitation;

The recommended next steps for Video Magistration are covered later in this report.

1.3Recommendations and Next Steps

Our review has identified a series of recommendations for next steps that should be considered by the Counties. These items are summarized here, and considered in detail later in the report:

  • Establish a district wide pre-trial services department that supports all counties, staffed by local county representatives under a guiding role from the existing Medina pre-trial department;
  • Work with local LEAs to establish minimum standards and timeliness of arrest and other required information to establish both probable cause and prosecuting attorney decision on indictment/filing.Establish these standards into the jail intake process and communicate regularly with LEAs where delays in completion of paperwork drive delays in filing decisions and thus potentially significant additional jail costs;
  • Consider holding LEAs responsible for jail housing costs where delays in the charging decision are due to incompleteness of paperwork and arrest information;
  • Consider the establishment of a pre-trial bond option for charged individuals, reserving the use of the personal recognizance bond for specific uses. Utilize the pre-trial bond fee to fund the positions, and also establish the monitoring program for pre-trial bond conditions;
  • Standardize the process and forms for affidavit of indigence, and implement a consistent evaluation and process for all arrested individuals coming through the jails;
  • Start the video magistration process roll-out on the basis of the new processes and establish policy and procedures around timing, responsibilities and sequence of events;
  • Start the configuration process for “FIDo”software based on the new policy and procedures. Roll out FIDo initially for Affidavit of Indigence and Attorney Appointment. Second phase would focus on attorney time tracking and billing;
  • Identify how gaps in current FIDo functionality could be funded for multi county scenario and specific Medina/Real/Uvalde requirements;
  • Set new policy and standards to monitor major compliance events such as timeliness of magistration, timeliness of support for court appointed attorney, timeliness of appointment, first contact, and first visit. Embody these measures as part of the FIDo rollout and establish monitoring and reporting responsibilities within the new cross-country pre-trial services role;
  • Engage with an Odyssey software expert (Medina) to identify best practice use of the software to eliminate identified inefficiencies and manual effort.

2Current State Assessment

The Current State assessment is one of the primary outputs from this work. It attempts to review current operations and management of the integrated indigent defense process from the magistrate warning through to payment of attorney voucher.

The indigent defense process spans multiple departments and has significant impact on costs and efficiency of County operations in many of these departments. In our experience we have found that even in situations where an individual department may have very good controls, if the hand-offs between departments are not well understood, even the best run department can have knock-on effect on costs or inefficiencies to other impacted departments1.

Our assessment identified that, in general, the cross departmental indigent defense processes in Medina, Real and Uvalde Counties are not clearly defined, and the controls between departments are not coordinated. The processes within each of the departments can be explained by interviewees; however the lack of formal process monitoring means that the resultant output of the processes can vary in quality and content. Often specific processes that require more judgment and training are performed by individuals that either do not have the formal training in these areas, or do not have any management oversight to complete the process accurately. In other departments, the same main process flows are handled differently based on individual judgment and understanding.

The lack of a cohesive and properly managed policies and procedures results in multiple variants of the same process. These multiple variants allow confusion, inconsistency and errors to enter the process. Specific examples are discussed in the following section.

2.1District Courts

2.1.1District Court Organization

The 38th District Court spans all three Counties covered by this assessment. The administration processes of the District Court are primarily managed from the Uvalde offices. Within the District there is no staff whose primary role is the management or oversight of the indigent defense program and as such, the inevitability of process inconsistencies, delays in dealing with action items and underdeveloped processes is evident from our review. The resources available to the indigent defense organization varies dependent upon the specific member County; and where the resources have more focus on the pre-trial or indigent defense area (such as in Medina), there appears to be more consistency and timeliness of actions. There are no good systems in place to manage and communicate the new jail book-ins, probation revocations, requests for counsel, appointment of counsel, or monitoring of attorney first contact and visitations. The process for monitoring attorney qualifications, CLEs etc. is also an area that lacks focus.

2.1.2District Court Policy

2.1.2.1Comparison of Plans against Actual Practice

Medina, Uvalde and Real Counties have each documented and submitted an Indigent Defense Plan in order to comply with the Texas Fair Defense Act. In these plans, it specifies what policies and procedures are in place to ensure a systematic method of providing qualified counsel to indigent persons in criminal cases. The comparison of the plan against actual practice is covered within each specific County section.

2.1.3District Court Processes

In order to ensure the rights of indigent defendants are protected, it is crucial to develop and maintain a consistent set of well-defined processes. Although many departments are involved in the activities required to support indigent defendants, adequate systems or processes are not currently in place to support the department of activities.We believe that defendants who request a court appointed attorney are provided support to apply for completion of the affidavit of indigence; however, the persons who provide this support may not have all the skills or training necessary to ensure accuracy and consistency of the data provided by the arrestee. Controls are not in place to ensure that the applications, attorney appointments and first visits are all done within the time frames required by law. It would be extremely beneficial to establish a county wide pre-trial services team, perhaps under the direction of Medina’s existing group,to monitor and control the process from beginning to end.

LEA Coordination

We heard from a number of individuals that the quality and completeness of the arrest reports from various Law Enforcement Agencies is inconsistent at best. Although this issue reaches beyond indigent defendants, it surely impacts them if probable cause is not clearly established, or if there are delays in obtaining all the required dataand they remain in jail without representation. We believe that these delays result in significant additional jail housing costs and delays in prosecution. We feel that this should be studied in more detail, and if a pattern can be identified, policy and standards discussions should take place with the LEAs to fix the issue. An additional incentive that we have seen implemented in other Counties is that the LEA becomes liable for the cost of the jail stay until all the required paperwork from the LEA is provided to the prosecutor to enable a decision to indict/accept charges or reject.