NAPD Assessment of the Texas Office of Capital and Forensic Writs Released

This blog post is co-released by Ed Monahan and Doug Wilson.

The Texas Office of Capital and Forensic Writs (OCFW) http://www.ocw.texas.gov/ , the statewide public defender for capital post-conviction matters, is an organization of high value with good support from important constituencies, including legislative, judicial, legal, bar and criminal defense leaders, according to the Assessment released today by the National Association for Public Defense (NAPD). OCFW is also an agency with serious resource challenges.

The Assessment found that the OCFW lacks the capacity and resources to meet all of its responsibilities. To meet its challenges, the Report made 8 major Recommendations. Chief among them were to:

Create a Deputy Director position to provide capacity for active management of case representation
Create an Oversight Board to ensure independence and accountability
Provide additional financial support to reduce workloads

Commenting on the Assessment’s Recommendations, OCFW’s Director Benjamin Wolff, said “I am proud of our staff and their dedicated work and it is a privilege to work alongside them every single day. But we need help. We welcome outside, objective perspective and accountability, and appreciate this in-depth evaluation and roadmap to future success and greater stability. The concrete recommendations in the Assessment will benefit not only our clients, but also the courts, the criminal justice system, and the public by providing organizational mechanisms for professional, independent management, oversight, and additional resources to ensure timely and competent representation of our clients.”

The Chair of the NAPD Steering Committee, Maryland Chief Defender Paul DeWolfe, announced the release of today’s Report which was done by Colorado State Public Defender Doug Wilson and former Kentucky Chief Public Defender Ed Monahan over a three-month period in 2018. “It is important for public defense programs to be able to access independent evaluations of their programs. NAPD is proud to offer this service to its member organizations and by their nature to the communities they serve. With our seasoned defender veterans, we have immense intellectual capital to bring to bear on the challenges public defense faces nationally.”

Minnesota State Public Defender William Ward chairs the NAPD Systems Builders Committee, which facilitates program assessments. “This Report is the result of a request by the Director of the Texas OCFW to NAPD to conduct an assessment of the internal and external work of the Texas Office of Capital and Forensic Writs because of the serious challenges OCFW faces. The request for an outside assessment of the program is an indicator of the caliber of the organization’s leadership.”

Summary of Recommendations

Implementation of the following Recommendations will allow the OFCW to competently and timely meet its responsibilities.

Provide More Financial Resources

More financial resources are necessary for the Texas Office of Capital and Forensic Writs to competently and timely meet its capital post-conviction and forensic writs litigation responsibilities.

A workload study should be conducted, according to the current nationally recognized methodology, to determine the appropriate staffing standards for OCFW for capital post-conviction cases and forensic writ cases.
Provide more financial resources to employ additional staff to reduce workloads to national standards and increase staff compensation to levels comparable to state prosecution professionals, and to ensure each team has a distinct fact investigator and mitigation specialist with a mental health background and sufficient support staff.
These additional staff compensated appropriately will increase the ability of the OCFW to competently represent capital post-conviction clients as established by the workload standards.
The increased compensation will reduce staff attrition which leads not only to morale issues but costly retraining and delays in the proceedings.

To the extent professionally possible, the Office for Court Administration should provide additional administrative assistance to OCFW at no or little additional cost unless OCFW is funded for those services.

Enhance the Organizational Structure

Upgraded organizational structures are necessary for the Texas Office of Capital and Forensic Writs to competently and timely meet its statutory and constitutional capital post-conviction and forensic writs representation responsibilities.

Create an organizational structure that addresses the challenges of the size of the Office and the complexity of the practice by creating at least one Deputy Director position which has the responsibility of managing the litigation work with the flexibility to hire additional supervisors as needed and funded. This will free up the Director of the Office to perform internal administrative and external responsibilities that only the Director can perform.
Ensure each litigation team has an identified capital-qualified attorney leader, a second capital-qualified attorney, a fact investigator and mitigation specialist with mental health competency as required by state and national standards.
The Director and new Deputy Director should attend national practice-oriented leadership/management training offered by a public defense organization.
The Director should avail himself of a mentor from the defense community, perhaps through NAPD.

Create Independent Oversight Board

An independent oversight board should be created to ensure the Texas Office of Capital and Forensic Writs has program accountability and is able to competently and timely meet its statutory and constitutional capital post-conviction and forensic writs representation responsibilities.

To ensure program integrity, create an Oversight Board that has the responsibility to provide fiscal and program review and to advance the mission and professional independent representation of clients.

Enhance Communication

Communication should be increased and improved so that the Texas Office of Capital and Forensic Writs is able to competently and timely meet its statutory and constitutional capital post-conviction and forensic writs representation responsibilities.

Timely decisions and explanations should be provided.
Assignment of cases should occur through an in-person communication after appropriate consultation and then timely, affirmatively communicated to all staff.
Staff meetings should occur on a regular basis with a focused agenda that includes communication of information from the Director, and participatory staff educational development, perhaps provided by staff on a rotating basis and by outside professionals.
Create job responsibilities, conduct periodic performance evaluations.
Upgrade policies and procedures.

Enhance Education and Development

Education of staff should be further improved so the Texas Office of Capital and Forensic Writs can competently and timely meet its statutory and constitutional capital post-conviction and forensic writs representation responsibilities.

There should be ongoing education and development with in-house trainings according to a plan developed after a survey of staff needs.
A person in the Office should be designated to coordinate the creation and implementation of the education and development plan.
There should be special attention to education on an effective functioning defense team, developing and maintaining client relationships, conflict management and resolution and conducting effective evidentiary hearings.
A practice guideline manual should be developed to ensure staff understands practice options and expectations.
Formal case reviews and mock practice should become a standard practice to ensure the litigation teams have the support necessary to deal with the litigation complexities.

Provide funding for OCFW’s forensic writ responsibilities and create statutory authority to decline forensic writ referrals when resources are inadequate

Financial resources are necessary for the Texas Office of Capital and Forensic Writs to competently and timely meet its statutory and constitutional forensic writs representation responsibilities.

Only after providing adequate funding for the state capital post-conviction responsibilities, funds and staff should be provided to perform the work from referrals from the Texas Forensic Science Commission.
The state’s interest to ensure reliable and valid results in criminal cases is advanced by funding an institutional capacity to determine if individuals have a legal claim because of invalid science.
The authorizing statute should be modified to allow for refusal of a referral from the Texas Forensic Science Commission when OCFW capacity does not exist.

Provide professional office space with each staff member with their own office in contiguous space

Professional office space is necessary for the Texas Office of Capital and Forensic Writs to competently and timely meet its statutory and constitutional capital post-conviction and forensic writs litigation responsibilities.

Continue communication with the Texas Regional Public Defender's Office to manage the inevitable tension with the different professional responsibilities, and continue communication with other members of the defense community to take advantage of the expertise and perspectives of other criminal defense professionals

You can read the report in its entirety HERE