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Reasonable Doubt: Can the Bexar County Public Defender’s Office be saved?

Photo: N/A, License: N/A

Photo: Photo by Callie Enlow, License: N/A

Photo by Callie Enlow

Bexar County's Paul Elizondo Tower, where the current appellate public defenders office is located

On May 6, Richard Dulany nearly gave up on Bexar County. The 48 year-old attorney is one of two appellate public defenders, hired by Bexar County to represent accused criminals who cannot afford to retain their own lawyer. He had been alternately baffled and frustrated practically since he started with the office in the spring of 2013, but sitting in the back of the room during that Tuesday’s Commissioners Court meeting, wearing his bowtie and listening to what should have sounded like good news, he decided to complain even louder.

The County’s proposed solution to issues Dulany himself raised did not seem likely to produce better results for the hundreds of thousands of Bexar County residents estimated to qualify for indigent defense. In fact, the quality of indigent defense was barely discussed at all. “It’s just a disaster,” said Dulany in an interview the following Saturday, explaining his grievances against the Bexar County Public Defender’s office as currently organized.“There’s zero leadership and zero management.”

Indeed, the office, currently comprised of two appellate public defenders (including Dulany) and one mental health public defender, has been without a “chief public defender” since May 2011 when the last chief resigned in disgust and was promptly escorted out of the County’s office building. Required under Texas law for any functional public defender’s office, the chief typically manages the department’s budget, caseloads and staffing. And since lawyers are compelled to only take direct instruction on their cases from other attorneys as per the American Bar Association, it’s essential the chief public defender be licensed to practice law in the state as well.

For the last three years, this state requirement has been flouted, and for nearly nine years, so has one that mandates the office be operated as an independent department.

For much of the office’s history, it’s been under the relatively new Judicial Services branch, a seemingly obvious departmental home. Yet Dulany first made waves last November, when he filed a motion to withdraw from a case due to a conflict of interest. Simply stated, the conflict arose from the fact that the medical examiner and county crime lab were under the same county department as the public defender, and answered to the same department head. This arrangement created at least the appearance that the public defender attorneys might hesitate to attack the testimony of the medical examiner or crime lab technicians, even though it could be a crucial part of the defendant's appeal. The court agreed. Most recently, in a bizarre effort to temporarily relieve this conflict, the Public Defender’s Office has been moved under the newly created Mental Health department. Dulany did not welcome this transition, either.

The plight of the public defender is pretty rough anywhere, anyway. The pay is low, the clients often truly guilty criminals and the success rate marginal. For appellate public defenders like Dulany, the rate at which they successfully overturn convictions rarely gets above five percent. Yet innocent people are arrested and wrongful convictions do occur, and are sometimes even overturned. In fact, according to the National Registry of Exonerations, the trend for exonerations is ascending. Last year, 90 exonerations were issued, the highest number recorded for any year the Registry tracks, and Texas led the nation with 13 exonerations. Though those crimes garnered felony convictions, it stands to reason that wrongful convictions likely extend to misdemeanors as well.

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