Texas Observer: Jan. 11, 2018, by Michael Barajas
The Texas prison system controls an agency tasked with defending poor inmates accused of crimes inside Texas prisons. What could possibly go wrong?
A new report by a committee of the State Bar of Texas aims to draw attention to a glaringly obvious conflict of interest at a little-known indigent defense system in Texas.
Current and former attorneys with the State Counsel for Offenders (SCFO), which represents indigent inmates accused of committing crimes inside Texas prisons, claim higher-ups at SCFO have ordered them to change legal strategy, for example prohibiting them from filing motions to assist mentally ill clients and even forcing them to withdraw from certain cases. Some of those attorneys, whose anonymous survey responses were included in the report, claim they were forced to make harmful legal decisions after their bosses consulted with the Texas Board of Criminal Justice, a nine-member group appointed by the governor that controls SCFO’s purse strings and all other Texas Department of Criminal Justice operations.
“Our budget is controlled by an agency with goals diametrically opposed to our own,” wrote one lawyer who responded to the survey. “Our advocacy dies the death of a thousand budgetary cuts and fiscal considerations.” Another wrote, “SCFO leadership bends to the will of TDCJ and doesn’t want to rock the boat.”
Lawyers for SCFO’s criminal division represent indigent inmates accused of committing felonies while incarcerated in a TDCJ facility. On the so-called civil commitment side, the agency lawyers defend sex offenders that prison officials and prosecutors have flagged as too dangerous for release into the community, even after they’ve finished their prison sentences. Under Texas’ “sexually violent predator” law, prosecutors petition the civil courts to order those men into a sex offender treatment program run out of an old prison in the Texas Panhandle, where they’re indefinitely confined.
Prosecutors working opposite SCFO attorneys are given more independence and resources. According to the report, published last month by the state bar’s committee on “legal services to the poor in criminal matters,” state’s so-called Special Prosecution Unit (SPU), which works with prison officials and local district attorneys to litigate cases against prisoners, is governed by its own independent board of directors. When you remove SPU’s budget for prosecuting juvenile offenders, which SCFO attorneys don’t defend, its funding for fiscal year 2016 was $4.5 million, more than a million dollars above the funding its counterpart agency received.
Nearly every attorney who responded to the committee’s survey said that SCFO lawyers trail their prosecutor counterparts in both salary and resources to litigate cases, such as funding to pay experts. One attorney wrote that defenders were often forced to use faulty office equipment emblazoned with the state prison system’s logo. Even some current and former SPU prosecutors agree. The state bar committee consulted four of them for its report, who echoed the concerns about disparities in pay and resources.
Scott Ehlers, who authored the report, calls the SCFO inquiry a rare undertaking by the group. The last time the committee wrote a report like this, he says, it led to the Texas Fair Defense Act in 2001, which overhauled the state’s indigent defense system.
“Our No. 1 recommendation is that this needs to be an independent state agency,” he told the Observer. “I think the anecdotes [in the report] are directly attributable to the lack of independence, they flow directly from State Counsel’s lack of independence from the prison system.”
When asked for comment, SCFO directed questions to a TDCJ spokesperson, who eventually punted back to SCFO. When reached by phone, SCFO director Rudolph Brothers wouldn’t comment on the report and refused to answer any questions. The Texas Board of Criminal Justice hasn’t responded to the Observer’s multiple requests for comment.
Ehlers says that at one point it looked like his group’s report might not even see the light of day due to an internal rule at the State Bar of Texas prohibiting the organization from auditing state agencies. Some of the lawyers involved with the report even filed public record requests seeking to force its disclosure last year, when the state bar still hadn’t published its findings months after Ehlers’ and his committee finished their work. The organization fought to withhold the committee’s first draft and the Texas Attorney General’s Office agreed.
Ehlers’ committee eventually released the report on its own last month with a big, bold disclaimer at the top saying it “should not be construed as representing the position of the State Bar of Texas Board of Directors, the Executive Committee, or the General Membership of the State Bar.” While he praised the group’s work, state bar spokesperson Lowell Brown called the report “outside the purview of the State Bar of Texas.”
“Our mission was to zealously represent clients independent of the institutions that confined them, and it’s all just become a farce, an absolute farce.”
Ehlers’ report echoes a resolution the Texas Criminal Defense Lawyers Association passed in December 2014 calling for state officials to make SCFO its own independent agency. That resolution followed the near meltdown of Texas’ civil commitment program for sex offenders, in part due to the bizarre behavior of Michael Seiler, the Montgomery County district court judge who once presided over the state’s only court for handling such cases.
Seiler campaigned for the bench calling himself a “prosecutor to judge the predators,” bragged about keeping a gun in his lap during civil commitment hearings, and, in speeches to conservative groups, called the defendants appearing before his court “psychopaths.” The state judicial conduct commission eventually ordered Seiler to undergo “additional judicial training” because of how he “berated and belittled” the SCFO lawyers representing sex offenders in his court.
Barbara Corley, who ran SCFO’s civil commitment section at the time, says she filed a grievance against Seiler and began knocking him off civil commitment cases with recusal motions. That is, until her boss at SCFO, Brothers, abruptly moved her out of that division when she started making waves. “I asked him if I had done anything wrong,” Corley told the Observer. “He told me that I had not, but if anything, I was doing too good a job there and that we ‘had to fly under the radar.’”
In 2015, the Texas Legislature made sweeping changes to the state’s civil commitment program that resulted in officials shipping nearly 200 men living in halfway houses and boarding homes to an old detention center outside Lubbock. About half the men, sex offenders who had already completed their prison sentences, signed waivers to voluntarily transfer into the new lockdown program at a detention center in Littlefield, a small town outside of Lubbock. The rest of the men asked for court hearings. SCFO higher-ups decided the agency wouldn’t give any of the men lawyers to help them navigate the change.
Nancy Bunin, a former SCFO attorney who handled civil commitment cases, says the episode shows how the agency bends over backwards to accommodate the state prison system, even though, as defense attorneys, they are supposed to be adversaries. She says her phone was “ringing off the hook” with calls from freaked-out men she used to represent in civil commitment around the time of those transfer hearings.
“They just dumped those men on the outskirts of the state without even giving them lawyers,” Bunin told the Observer. “Our mission was to zealously represent clients independent of the institutions that confined them, and it’s all just become a farce, an absolute farce.”