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On June 10, the Task Force on Indigent Defense was preparing to release a second edition of its “Blueprint for Creating a Public Defender Office in Texas” when it thought better of that idea. The reason? That very day Brad Lollar, chief of the Dallas County Public Defender’s Office — the largest and oldest one in Texas — had turned in his resignation to the Dallas County Commissioners Court amidst controversy. The blueprint “was ready to go, but we thought we better wait a week,” says Wesley Shackelford, special counsel for the task force. “I mean, we didn’t want those two stories coming out the same day.” The task force eventually released the blueprint eight days later. It outlines how counties can meet the requirements of the Fair Defense Act of 2001 — a Texas law that requires timely appointment of counsel to indigent defendants — and save money at the same time by setting up public defenders’ offices. Shackelford says he considers the Dallas PD’s office a “model” for other counties. The blueprint cites the Dallas PD’s office for providing “zealous legal defense to individuals who cannot afford representation” — goals that are accomplished through “hiring and training competent attorneys and providing meaningful investigation of cases.” But there’s one topic the blueprint can’t address: navigating the political mine field that comes with the job as a chief PD. It’s a difficult situation that Lollar and some of his predecessors have faced since the office was established by the Dallas County Commissioners Court in 1983. And those historical political clashes with the commissioners court — which controls the budget for the PD’s office — ultimately led to his resignation, Lollar says. “You’ve got four commissioners and the county judge who are your bosses. They are of differing parties. They have different goals perhaps than what I had. Everybody has the same goals in general — providing representation to defendants for low cost. But . . . the priorities of getting you there” differ, Lollar says. “I work at their pleasure, and it was their pleasure that I not work.” Lollar’s chief deputy Lynn P. Richardson, a 14-year veteran of the office, now is interim chief public defender. The commissioners have not yet named a permanent chief for the office. Richardson says that her goal as interim chief is to “make sure things are moving forward in the office and that we provide effective assistance of counsel.” She says she is undecided on whether she wants the permanent position as chief. Dallas’ chief public defender is responsible for hiring and firing assistant PDs and assigning them to work in each of the county’s 17 criminal district courts and in 12 of the county’s 13 misdemeanor courts. But the criminal court judges ultimately control how many assistant PDs they want are assigned to their courts — that number can range from one to four assistant PDs — and what type of cases they handle. The criminal court judges also decide how much of their indigent-defendant caseload to assign to assistant PDs and how much to assign to outside counsel who accept court appointments. Dallas County Commissioner John Wiley Price says the county cannot require judges to use PDs. Some judges use assistant PDs extensively, leaning on them to try felony cases, for example. Others judges believe the most efficient way to use assistant PDs is to have them represent defendants accused of less-serious criminal offenses such as state jail felonies and probation revocations, which keeps the court’s docket moving quickly. The judges then have appointed counsel handle more time-consuming cases, several Dallas County judges say. Troubles between Lollar and Price began earlier this year when a Dallas judge requested that a new assistant PD be assigned to help staff a new divert court. Lollar and Price say they disagreed about the person Lollar wanted to hire for the job. That disagreement punctuated other key differences between Lollar and the commissioners court over how Lollar managed his assistant PDs and the efficient use of assistant PDs in court, Lollar says. Price says he had problems with Lollar’s management style and the work ethic of some of his assistant PDs. He adds that the commissioners did not ask for Lollar’s resignation. “We didn’t ask him to resign. He resigned,” Price says. “Let me just say, he requested the opportunity to resign.” Particularly, Price alleges that Lollar allowed subpar assistant PDs to stay on the payroll and allowed others to work light caseloads. When Price’s constituents complained about an assistant PD’s performance, Lollar moved the lawyer from one court to another, Price alleges. “If you’re not performing at one court, why transfer [that lawyer] to another court?” asks Price, a Democrat. “That’s unacceptable.” “I explained that I fired some people that needed to be fired. And I moved them when they needed to be moved,” Lollar says. Dallas County Commissioners Kenneth Mayfield, Mike Cantrell and Maurine Dickey, all Republicans, say they have concerns about the efficient use of assistant PDs in the county’s criminal courts. “What I want to see is judges use public defenders more. There are too many appointments, and we want to know why,” Dickey says. “If we’re going to provide this service, we want it to be used.” But the use of PDs in criminal courts was an area over which Lollar says he had no control. The criminal court judges decide how assistant PDs are used, not him. “One judge might think he or she would give all of the public defenders the cases that might go to trial,” Lollar says. “Others thought it was best to appoint to state jail felonies and probation revocations. But it was not within my purview to tell them what cases to give them.” “I was supposed to send [the judges] competent and capable attorneys,” Lollar says. Some of Lollar’s employees were shocked by his resignation, because he was popular and raised morale in the office. Lollar expanded the office from 56 to 88 attorneys during his two-and-a-half years as chief PD. Statistics from the Texas Task Force on Indigent Defense show Lollar was saving the county money. The 25,000 cases assigned to appointed attorneys in Dallas in 2007 cost $493 per case, while the 41,000 cases assigned to the Dallas County Public Defender’s Office cost $214.66 per case. The reason for the cost disparity is assistant PDs usually have lower overhead costs than appointed counsel who must pay for their own office space and staff. But one long-time Dallas assistant PD who requests anonymity isn’t surprised by Lollar’s clash with the commissioners. “All of his good deeds didn’t do him any good in the long run,” the assistant PD says. “In talking with people who have been here for a long time, one guy who was here . . . [more than a decade ago] says he wasn’t here two weeks before the commissioners were talking about the inefficiency of the office.” “I can understand the commissioners court wanting to hold the person accountable. But they don’t understand what we do here on a daily basis,” the assistant PD says. “Everybody is running a bit scared here, because we don’t know if the whole office could go” away. Deja Vu Carl Hays resigned as Dallas County’s chief PD almost 12 years to the day before Lollar resigned. Hays says his difficulties were nearly identical to Lollar’s. “It’s almost the exact same problems,” he says. “I was the proverbial ping-pong ball,” Hays says, “and you can’t serve two masters.” [ See "Dilemma for Dallas Public Defenders," Texas Lawyer , June 24, 1996, page 1.] Hays now is a Dallas municipal judge and solo practitioner. Hays also came under fire for his management style. At that time, attorneys who were fired or had issues with their supervisors could seek review by the Dallas County Civil Service Commission, Hays says. Having the civil service commission review employee grievances and terminations made managing the office difficult and was a “mistake” that led five attorneys who were dissatisfied with Hays’ leadership to file grievances with that commission. One assistant PD even filed a suit against the county in 1995, which the county won, Hays says. As of six years ago, the civil service commission no longer reviews the chief public defender’s termination decisions or employee-supervisor issues at the PD’s office. A few months ago, Lollar found himself involved in similar clashes with the commissioners over management and the office’s efficiency, but with different twists. Lollar says he did not have trouble with the criminal court judges over control of the assistant PDs — eight of the judges are former assistant PDs themselves. Lollar says his troubles arose because he didn’t fire assistant PDs. “I don’t think there’s any complaint about who I hired; it was that I hadn’t fired people,” Lollar says. “The county code urges that you not fire people for the first offense. You’re supposed to go through aggressive punishment before you fire them, unless it’s egregious.” And firing attorneys “can always lead to lawsuits against the county,” Lollar adds. In between Hays and Lollar, Jane Roden, now judge of Dallas County Criminal Court No. 8, served as chief public defender from 1996 to 2001, followed by Jeanette D. Green, now a transportation attorney, who served from 2002 to 2005. Green did not return a telephone call seeking comment. Roden says the job of chief public defender is a difficult one, because a chief PD is accountable not just to the commissioners court but to judges who decide whether to use PDs and to indigent clients who have a right to effective assistance of counsel. “Being a judge is easier,” she says. Judges, PDs and Costs According to a report released by the Dallas County Budget Office, for the six-month period that ended on March 31, indigent defense costs in Dallas County’s 17 criminal district courts are fairly uniform — averaging about $342 per case. At a majority of the district courts, which hear felonies, the cases assigned to public defender cost less that cases assigned to court-appointed attorneys. Only five of the 17 district courts spent slightly more on cases assigned to public defenders than court-appointed attorneys. “The answer is those judges weren’t appointing us to more cases,” Lollar says. Nevertheless, no matter how often judges used PDs instead of appointed counsel, the total cost per case ended up about the same. For example, Judge Don Adams of Dallas’ Criminal District Court No. 2 assigned 170 cases to his one public defender and 770 cases to private attorneys during the reporting period. In comparison, Judge Rick Magnis of Dallas’ 283rd Criminal District Court, a former public defender who worked under Lollar, assigned 433 cases to his three public defenders and 400 cases to private attorneys. Though both Adams and Magnis use PDs in different ways, their overall costs per case were nearly the same — $325 for Adams and $358 for Magnis. Adams, elected to the bench in 2004, says that appointed attorneys help him move his docket and keep down costs in a court that hears trials nearly every week. “I prefer court-appointed attorneys,” he says. “I think they can move cases as well as the public defender.” Adams notes that he prefers to use his lone assistant PD for cases that do not go to trial. Adams says he assigns less-serious cases likely to result in plea bargains, such as third-degree felonies and state-jail felonies, to his assistant PD and assigns more serious offenses that often go to trial, such as aggravated sexual assault and murder cases, to appointed attorneys. “I don’t want [my public defender] to be jammed up with trials,” Adams says. “In this court, we try a lot of cases.” Magnis, elected to the bench in 2006, says he tries to give three out of every four cases to his public defenders, because experience has shown him that’s the load they can handle. Public defenders in Magnis’ court often take cases to trial, he says. “I’m 100 percent satisfied with my public defenders,” the judge says. Since the Legislature passed the Fair Defense Act of 2001, the number of public defenders’ offices in Texas has grown from five to 15, according to the blueprint released by the Texas Task Force on Indigent Defense on June 18. Now, the Harris County Commissioners Court is being urged to consider creating a PD’s office. But Lollar and Richard Goemann, director of defender legal services for the National Legal Aid and Defender Association, have suggestions for Harris County if it sets up a PD’s office. The problems at the Dallas PD’s office “are not unique to Texas,” Goemann says. “They are common around the country.” The best way to avoid such political problems is the creation of an independent board to oversee a PD’s office and shield it from the governmental body that controls the PD’s office budget, he says. “The idea is to create a diverse body whose allegiance is to the clients of the office,” Goemann says. Lollar says Harris County — Texas’ largest — should “have a clear arrangement with the judges that once the PDs are in there, you’re going to use them and what cases are they going to get. And there should be an advisory board that stands between the commissioners court and the Public Defender’s Office. It could be representatives between the criminal bar and the district judges and the county judges. And it should act as a buffer to politics.” Lollar, who was a criminal-defense solo before becoming chief PD, says he’s looking for office space to re-start his practice. Notes Lollar: “I’m back in private practice, and I’m doing quite well.”

Dallas County By the Numbers

Cases Added

Cases Paid

Cases Appointed to Public Defender

Felonies

32,791

24,149

11,641

Misdemeanors

72,703

27,966

18,671

Juvenile

4,013

13,338

10,498

Adult Appeals

502

112

Totals

109,507

65,955

40,922

Note: Numbers are for Dallas County for fiscal year 2007. Source: Texas Task Force on Indigent Defense Blueprint for Creating a Public Defender Office in Texas, Second Edition.

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