Public Defense Deep in the Heart of Texas’ Death Penalty Country
I first became a public defender in 1976 as a law clerk and 1977 as a lawyer. My first job was as an appellate lawyer. Because we were a new system and all of the trial work was being done by assigned counsel, part of my work involved reviewing assigned counsel vouchers. At the same time, then Public Advocate Jack Farley obtained an LEAA grant to open several trial offices in Eastern Kentucky in Appalachia. The purpose of the grant was to determine whether a full-time delivery model could be effective in delivering services to rural, impoverished, low-population areas. That was the genesis of the full-time trial system in Kentucky, now consisting of 33 full-time offices covering all 120 counties through the Commonwealth. Kentucky has proven definitely that you can deliver effective trial level services in a mostly rural state, including counties with as few as 7500 people, as well as sparsely populated areas with large distances between population centers. Kentucky also proved that you can recruit lawyers to areas that have almost no attorneys, and train them to be zealous and client-centered.
But that's not the point of this blog. Fast forward to 2008. David Slayton, a Lubbock County, Texas official, and Jim Bethke, the Executive Director of the Texas Indigent Defense Commission, had an idea. They were in a state where 1062 persons have been sentenced to death from 1974 to 2013, and 538 were executed, a third of all persons executed in the US in the past 40 years. 4.3 million of Texas’ 27.4 million population live in rural Texas. They knew that the Fair Defense Report had stated that rural Texas was “wholly lacking attorneys with the necessary skills or expertise to represent defendants in capital cases.” They also knew that the same report, published in 2000, called for a “statewide capital defense special support unit”. Their idea was to enable smaller counties (under 300,000) in population to pay into a fund that would allow for the establishment of such a support unit. From their idea, the Regional Public Defender Office for Capital Cases (also known as RPDO) was born under the leadership of Jack Stoffregen.
The office was located in Lubbock County, and it served only two administrative regions. But soon other small counties decided that they could avoid the heavy costs of a death penalty prosecution and opted into the program. Today, 178 of Texas’ 254 counties are covered by RPDO.
RPDO was evaluated after its first five years by the Public Policy Research Institute to determine whether it was working as planned. In a report by Dr. Dottie Carmichael and others, it was found that RPDO “increases access, improves quality, and reduces cost of death penalty representation in small to mid-sized counties…These findings show the public defender model is a successful means to deliver affordable, high-quality, specialized capital defense expertise in non-metro areas of the state.”
All organizations change, for better or for worse. RPDO went from covering mostly west Texas to covering 178 counties throughout Texas. In several high-profile cases, the defendants received death. Were there problems with the model? Was morale declining? Was RPDO sustainable? To answer this and other questions, Jim Bethke and Ray Keith, the new Chief Public Defender for RPDO, asked NAPD and its Systems Builders Committee to conduct another assessment.
This assessment was conducted by me and Doug Wilson, Colorado Public Defender and an experienced capital litigator. It was conducted during November of 2016, with the report published in December. It can be found here: https://www.publicdefenders.us/files/RPDO|PERCENT|20REPORT_FINAL_1|PERCENT|2006|PERCENT|2017.pdf.
Bottom line? The success of the rural capital public defender model is apparent despite the rapid growth. Since its inception, RPDO attorneys have closed 112 death penalty cases with only six verdicts of death. This is a remarkable record in a state like Texas. They have committed to the ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases (2003), as well as the Texas analogue. This includes the creation of a team and a commitment to the development of mitigation. We found a strong commitment to clients. Attorneys are paid a reasonable salary, and there are caseload limits. Overall, we found that RPDO has made a significant different in the eight years of its existence.
There is room for improvement. Twenty-one recommendations are made that we believe would result in an even stronger organization. These recommendations include the creation of a system of regional managers, a commitment to supervision, the holding of periodic case reviews, and the hiring of a director of training. We also recommended that TIDC seek funding to implement these suggestions. In our estimation, RPDO has a bright future.
The Systems Builders Committee, chaired by Bill Ward, is ready to assist organizations in identifying areas of improvement. If you are interested, contact Bill Ward or Ernie Lewis. You can read the RPDO Report HERE