Broken Cogs

Mike Howard couldn't take it anymore. For the past month, the young attorney had been shouldering a caseload he had never imagined possible when he was a law student at Southern Methodist University. This morning—a sweltering day in mid-August—was a perfect example.

Sitting in the Frank Crowley Courts Building, he considered the day's schedule. He had two felony cases on the docket. One was a drug case, the other an aggravated assault with a deadly weapon. In both cases, the stakes were huge for his clients, who were looking at significant jail time if found guilty.

Howard had done everything he could to represent them fairly, but the pressures of his job were bearing down on him. Just that morning he had picked up three new felony appointments. All told, he would be carrying 40 new felony cases by the end of the month. Howard could complain—could point out that by the end of the year he would be carrying a caseload three or more times higher than the nationally recommended standard—but what was the point? Every felony attorney in the Dallas County Public Defender's Office was being asked to do the same.

Howard decided there was only one thing he could do. Sitting there in the courthouse, he made his decision. He would have to quit.

Howard is one of five felony attorneys who have left the Dallas County Public Defender's Office in the last month. Their departures come on the heels of the July resignation of Brad Lollar, who had supervised the office since 2005. Howard and Lollar both say their resistance to increasing caseloads mandated by county commissioners were the main factors in their departures.

But County Commissioner John Wiley Price says there are no mandated quotas, and the number of cases public defenders are asked to carry today is no different than what it has been for the last 10 to 12 years.

The problem, Price says, is that under Lollar the public defender's office had turned into a "retirement home" for lawyers who would rather vacation than work.

"I've never heard more horse shit," Price says of Howard's assertion that he and other felony lawyers were being asked to carry too many cases. "...You've got a handful that are crying and whining. Maybe they're crying and whining because we were looking at their attendance."

Price says he began looking closely at the public defender's office about a year ago when he noticed Lollar had yet to use a computer program the county had bought called Client Profile. Price says he told Lollar he needed to start using the program, and after six weeks had passed, nothing had changed. So Price says he began looking into the overall management of the office.

He says he had his staff pull parking records and time sheets to see when attorneys in the public defender's office—the largest in the state—were coming in to work. His staff also spoke with private attorneys and judges. Among other things, Price said he found that the public defender's office wasn't taking on enough cases and in some instances attorneys at the office were performing poorly—taking too long to contact defendants, for example. He also had problems with the way Lollar managed his office. He allowed poor-performing attorneys to stay on the payroll.

In one particular case, Price says, Lollar had two of his highest-paid attorneys working for a judge who only assigned them 10 or 11 cases a month. Price says when he called Lollar on this, Lollar told him the judge was on vacation, so Price says he suggested Lollar transfer the attorneys to another judge who would use them. According to Price, Lollar refused to do so.

"That's what management is, and he wasn't effectively managing his office," Price says. "The problems began and ended with Brad Lollar."

Lollar paints a different picture. He says Price had a problem with him from day one, when for reasons Lollar says he still doesn't understand, Price was the only county commissioner to vote against his appointment to head the public defender's office.

Lollar says Price micromanaged his office. "It had got to the point where he was telling me who I had to fire, who I should hire, who should be assigned to what judge, and how we should handle caseload management."

With Price at the lead, Lollar says, the county commissioners began to ratchet up the pressure on his office.

Lollar had used 30 new cases a month as a benchmark of productivity for his felony attorneys, but he had allowed those attorneys who were working cases headed to trial to take on fewer, depending on their demands. The commissioners ordered him to mandate that all felony attorneys take 30 new cases a month, regardless of circumstance.

Within a few weeks, the requirement was bumped up to 35, and then 40 new cases a month. Lollar says he wrote a memo to the staff reminding them that their first obligation was to offer their clients thorough representation.

Lollar says he explained to the commissioners that their perception that some lawyers weren't carrying enough cases out of laziness was without merit. It was up to individual judges to decide how many public defenders were needed in their courtrooms and how they wanted them used. Some judges preferred to use public defenders for state felony and parole cases, which were typically disposed of quickly, while others assigned public defenders to cases expected to go to trial.

The problem, as Price and other commissioners had noted, was that criminal court judges were using public defenders less than before. In 2006, Dallas County criminal district judges assigned just 38 percent of their cases to the public defender's office. For Lollar, the explanation was simple: His office was understaffed.

In response to these complaints, the public defender's office asked the Texas Task Force on Indigent Defense to review their performance and the cost-effectiveness of the appellate division, which county commissioners were considering abolishing. The task force concluded that the appellate division was not only efficient, but that its attorneys often performed a higher level of service than lawyers from the private sector.

The report concluded that according to the county's own data, public defenders handling misdemeanor cases were taking on an average of 100 new cases each month at a cost of $77 per case, compared with $150 per case appointed to private counsel. For felony cases, each lawyer in the public defender's office was averaging 31 new felony cases per month, at a cost of $314 per case compared with $380 per case assigned to private attorneys.

For attorneys like Howard, the report was vindicating, but he says it did little to change the way commissioners wanted the office run. When Lollar was forced out on June 10, he says, he could see the writing on the wall.

"There was no way I could zealously represent my clients, which is the ethical responsibility of a public defender, and carry the number of cases they were asking me to," Howard says.

But Price says this wasn't the case at all.

He says the commissioners never instituted a quota system. The goal, he says, is for felony attorneys to take on 30-40 new cases a month, but with an understanding that those carrying cases moving toward trial will not be able to do so.

"I'm unapologetic," Price says of the changes at the office. "I'm in charge of the budget, and I asked for information and shared it with my colleagues. They can call that micromanaging, but I was just doing my job."

As a result, the county commissioners are no longer looking at closing down the appellate division of the public defender's office. And while Lollar insists there is a quota, he says he has been told that it has been scaled back to 35.

These changes are encouraging to Lollar, but he says it's only a start.

"I keep thinking of the I Love Lucy episode where Lucy and Ethel are in the chocolate factory and the conveyer belt keeps going faster and faster," Lollar says. "Pretty soon it's going so fast they can't keep up and the chocolate is falling off the belt and getting squashed."

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Jesse Hyde
Contact: Jesse Hyde