Politics and Public Defenders
Almost two and a half millennia ago, Aristotle concluded that “man is a political animal.” Lawyers are constantly building and mending relationships across the political spectrum. They also navigate philosophies and loyalties that may be solely partisan or tribal.
When I was a young assistant federal public defender I often spent time in discussion with an older federal judge in his chambers. The judge and I shared almost no opinions. He was as conservative as I was liberal. I liked him because he was irascible, smart and entertaining. He liked me because I was idealistic, honest and willing to listen to him. If he ruled against me in court it was that he disagreed, not because he did not trust me.
I have also seen partisanship both promote and ruin legal careers. In federal courts, where the Founders required lifetime appointments to advance judicial neutrality, some judges have been chosen solely for party loyalty. In state courts, where judges may need to choose a political party in order to run for election, competent jurists have been removed from the bench for having chosen the wrong side. In a few states, even public defenders must pretend to be true to one party or another in order to be elected to office.
Politics for public defenders usually involves two issues, the lack of money and the lack of independence. The two are linked. If resources were guaranteed then independence would be assured. Since that is unlikely, and the money must come from somewhere, public defenders will remain dependent upon whomever funds them, including governments with conflicting priorities.
When I first became a lawyer in 1986 it was in Harris County, Texas. There were 22 felony courts and 15 courts that presided over misdemeanors for which a jail sentence was possible. Each judge could choose any featherless biped with a law license to represent poor defendants. Quality was not required. Loyalty – in the form of political contributions – often was. Lawyers were paid by appearance, not for their time. This meant that the most loyal of the attorneys could wander from courtroom to courtroom resetting cases for a small fortune in fees. Some caught up on their sleep during lucrative capital murder trials. Law was dispensed quickly and cheaply, but justice was infrequent.
After a year or two of attempts, I found I was unable to both serve clients and provide for a family. A more experienced criminal defense lawyer, Edward Mallett, took me in and I was regularly retained with him on criminal cases. After five years, I accepted a position as an assistant federal public defender in Beaumont, Texas. Less than two years later, I opened a federal defender's office in Southern Alabama. Over the next 16 years, I also established and managed federal defender's offices in Northern New York and Vermont.
Federal public defenders are under the judicial branch of the federal government. It is run by a judicial council and committees of judges and is implemented by an administrative office. It is the politics of bureaucracy and committees. It was only after many years of working in that system that I encountered partisan politics in its most visceral form – first good, then bad and then good.
In 2010, I was chosen to open a public defender's office back where I started, in Harris County. The county, which includes most of Houston, along with other small cities, towns and unincorporated areas, is the nation's third largest. It was the last major urban jurisdiction to create a public defender's office. Between the time I left Houston in 1993 and returned 17 years later, some good things had happened. The most important was the Texas Fair Defense Act of 2001 (FDA).
The FDA required Texas counties to establish qualifications and rules for their systems of appointing counsel to poor criminal defendants. A task force, and later a commission, was created to distribute funds derived from fees among Texas counties. Each of those counties depends primarily upon its own tax revenues, not only to police and prosecute, but to meet its constitutionally mandated and statutorily required provision of defense counsel.
It was a grant from the Texas Indigent Defense Commission that provided the funds to start the Harris County Public Defender's Office. I became head of a department in county government. My employers were called “Commissioners Court” – a legislative and executive body (but ironically not judicial). As in 254 other Texas counties, a County Judge and four Precinct Commissioners, make county policy and manage county assets.
When I began the office, three of the five members of Commissioners Court were Republicans and two were Democrats. Most of the 41 judges in the criminal and juvenile courts were Republicans, as well as most elected county officials. There was little impetus in Harris County government to create the office. Most of the support came from the outside.
State Senator Rodney Ellis was the prime author of the FDA. He made part of its mandate that if a single judge in a county called for the creation of public defender's office then Commissioners Court must take a vote. Community support in Harris County was organized by clergy and local leaders like Senator Ellis. In light of the county's history of exonerations, failed forensic laboratories, ineffective counsel, and misconduct by law enforcement and prosecutors – all while leading the country in executions – it was difficult to vote against it. With millions of dollars in grants on the line and support from local voices, it became easy to vote for.
None of this reduced the underlying tensions against a public defender's office. The old patronage system was a benefit to many judges and the lawyers who repaid them by contributions in exchange for court appointments. Some opposed public defenders philosophically, under the premise that a law office funded by the government is Socialism, but alternatively, giving the same money to private lawyers is the invisible hand of the free market.
These philosophical and financial stresses were particularly acute in the juvenile courts, where all three Republican judges had a history of appointing a small cadre of lawyers who did volume work in order to make a great deal of money. In some instances, it was difficult to reconcile the total number of appointments of certain lawyers with physical constants such as the limit of 24 hours during each day. The judges were fine with this system and one in particular went as far as cooperating for a front page article about his belief that the public defender's office was a waste of money. As he was a judge, his statement alone was news, albeit unencumbered by statistics, facts, or even anecdotes for his position. He did misstate a study that preceded the office in order to support his claim.
Over the years, the office had a complicated relationship with that judge, who would increase our appointments in election years and then ultimately cut us off completely. The final blow came when we successfully recused him from a case after he falsely accused one of our lawyers of misconduct. Not long after that incident the office got a public information request from an investigator who was known to work on behalf of Republican politicians, including Tom Delay. The request asked for our communications with reporters and criminal justice policy groups.
Most Harris County Republican judges and elected officials did not oppose me or the office, at least as long as it remained small. However, in 2009 the Harris County Republican Party issued a resolution opposing the office. That remained in the party's platform for many years. Two party chairs and its former executive director wrote articles against a public defender for the county and got a local Congressman to publicly state his opposition. It was this faction that supported the investigation into me and the office.
In responding to the request, we turned over thousands of pages of correspondence. Attached to one email was a chart showing the overwhelming racial disparity among our juvenile male clients given custody sentences. Republican members of Commissioners Court focused on this document as potentially violating a Texas statute which criminalized the disclosure of juvenile documents from a court, prosecutor or juvenile probation office. Although we were none of those agencies, and the information on the chart made nothing public that one sitting in court could not observe, the matter was put on Commissioners Court agenda for action. There was also animosity that I had undermined the county's position in a federal lawsuit over its bail practices. It was made clear that the action could include my termination.
That was on a Friday. Over the weekend, I was contacted by lawyers and organizations all over the state and the nation. Everyone wanted to help. On Monday morning, I went to see an employment lawyer, just in case. While I was there, an editor from the Houston Chronicle called and asked if I could meet with their editorial board that afternoon. I did and explained the situation. The next day was the Commissioners Court meeting. The Chronicle's editorial that morning was titled “Save Bunin.” Many bar leaders – not just criminal defense lawyers – came to speak or submitted letters on my behalf.
There was only one Democrat on the Court. Precinct One Commissioner Rodney Ellis was the same person who sponsored the FDA as a state senator fifteen years before. He moved that the discussion remain public and not be taken to a back room for an executive session. That made a big difference because the majority of the room supported me. “We don't care what the Chronicle says,” one commissioner stated, but they clearly did.
The meeting did one good thing. It forced everyone to deal with an issue that had been conveniently ignored – that public defenders have a different relationship with their government funders than other county employees. Clients must come first and that may put defenders at odds with the politicians who pay for them. I spoke and refused to concede that I or any of my employees had done anything wrong. It was all done to support our clients, both individually and as a class of persons who required zealous representation.
Members of the Court attacked my position by asking the private lawyers who spoke whether they ever provided information about their clients to others. All said they did not. One said it was just because he was old fashioned. Finally, the President of Texas Criminal Defense Lawyers Association, David Moore of Longview, was asked the same question and whether he too was “old fashioned.” He responded that we also used to have water fountains marked “Colored” and “White” and we do not do that anymore either.
That effectively ended the debate. The Court agreed to delegate the matter to my board of directors, something they were already supposed to do in the first place. Over a period of months, my board, which was dominated by Republican judges, but balanced with some bar and community representation, received information. Legal opinions were supplied by national experts. David Botsford is a preeminent Texas criminal appellate and trial lawyer who successfully defended Texas Governor Rick Perry. Professor Ellen Yaroshefsky of Hofstra Law School has taught and testified as an expert on legal ethics. The following organizations wrote letters supporting me, my office and the role of the public defender: National Association of Criminal Defense Lawyers (NACDL), National Association for Public Defense (NAPD), National Legal Aid and Defender Association (NLADA), Texas Criminal Defense Lawyers Association (TCDLA) and Harris County Criminal Lawyers Association (HCCLA).
Ultimately, the board provided Commissioners Court a lengthy written response exonerating me and the office without dissent. It was never mentioned again. A couple months later, there were dramatic elections in November 2018. Every Republican in a countywide election was defeated. Every trial judge in every court that our office appears is now a Democrat who publicly stated support for us. More importantly, there is now a Democratic majority on Commissioners Court committed to dramatically expanding the office.
Our County Judge is now a 27-year-old woman, born in Colombia and naturalized as a U.S. Citizen. In my favorite anecdote from the campaign, the Chronicle reported:
During one exchange in which (Lina) Hidalgo said (Ed) Emmett had sought to fire the county's chief public defender, the judge appeared to let his frustration get the better of him. “You've kind of gone into pyscho-babble,” he said. Zach Despart, “Ed Emmett aims re-election campaign at Democrats” Houston Chronicle, October 12, 2018.
In nine years, as the Harris County Public Defender, I went from refusing to publicly support any partisan candidate for county office to displaying lawn signs for the challengers to members of Commissioners Court. I essentially voted my bosses out of office. You can be a public defender without being partisan, but you cannot without being political. Public defenders are political animals simply because they are men and women.