More on the Private Mental Health Defender's Office in Lubbock

Texas Lawyer reports that the Lubbock Criminal Defense Lawyers Association (LCDLA) aims this fall to create a private defender's office that will represent indigent defendants with mental health issues ("First and Goal: LCDLA Close to Creating Nonprofit to Run Private Defender's Office," August 11, 2008). The Texas Task Force on Indigent Defense awarded the county a four-year, $407,000 matching grant to start the office.

Here's an excerpt from the article:

"Concerned that mentally impaired indigents too often languish in their jail, Lubbock County officials are trying a new approach - a private defender's office. It's a hybrid; a cross between a public defender's office and the assigned counsel system used in most Texas counties.

Lubbock solo Ted Hogan says the Lubbock Criminal Defense Lawyers Association (LCDLA) is creating a nonprofit entity that will seek to contract with the county to run the private defender's office, which will assign attorneys in private practice to represent indigent defendants who are mentally ill or retarded. The courts would no longer appoint attorneys in those cases.

David Slayton, Lubbock County's director of court administration, says the County Commissioners Court will decide Aug. 25 whether the county can negotiate a contract with the LCDLA's nonprofit entity without going through a formal bidding process. The aim is to get the private defender's office up and running this fall.

'This literally is the first of its type in Texas,' says James D. 'Jim' Bethke, director of the Texas Task Force on Indigent Defense, of the office being developed in Lubbock.

Bethke says he originally talked to Lubbock County officials and the criminal-defense bar about starting a public defender's office for mental health, but the idea did not generate much enthusiasm.

Slayton says a public defender's office would provide possibly two or three attorneys to represent indigents with mental health issues. The private defender's office will have access to attorneys in the private defense bar, and between 10 and 15 attorneys are expected to take the cases, he says.

In April 2007, Travis County opened the first stand-alone public defender's office for mental health cases. Jeanette Kinard, director of the Travis County Mental Health Public Defender, says her office is part of county government.

Kinard says her office, which has two attorneys, two social workers, two caseworkers and support staff, handles only misdemeanor cases for clients with certain types of mental illnesses, such as schizophrenia, major depression and bipolar disorder.

The office is funded to handle 500 misdemeanor cases a year, Kinard says. 'I think we'll end up with 400, which will be a more reasonable caseload,' she says.

Lubbock County is familiar with the concept of a public defender's office. Opened in late 2007, the West Texas Regional Public Defender's Office for Capital Murder Cases is based in Lubbock but serves 85 counties, extending from the Panhandle to Central Texas. Slayton says that since there are substantially fewer capital murder cases than other types of cases, the private defender's office for mental health is expected to have a bigger impact than the regional public defender's office.

The jail incarcerates about 13,000 inmates a year, Slayton says. Even with a conservative estimate that 10 percent of the inmates are mentally impaired, that would be about 1,300 cases, he says.

Bethke says a public defender's office is a governmental entity that employs lawyers whom a court can appoint to represent indigent defendants.

In contrast, a nonprofit entity will run the private defender's office in Lubbock County, and that entity will assign private practice attorneys to handle the cases, Bethke says.

Philip Wischkaemper, an LCDLA member and the capital assistance attorney for the Texas Criminal Defense Lawyers Association, says attorneys who want mental health case assignments will go through an application process in which a five-member peer review committee will scrutinize their experience and qualifications. Wischkaemper says he selected the committee members - with the agreement of LCDLA president Laurie Key - based on the fact that all of them are well-respected in Lubbock and do not take court appointments, especially in mental health cases. The peer review committee - made up of former U.S.Magistrate Judge J.Q. Warnick and criminal-defense attorneys Bill Wischkaemper (Philip Wischkaemper's brother), Charles "Chuck" Lanehart, Danny Hurley and Floyd Holder Jr. - also will monitor the performance of the attorneys assigned to represent indigent defendants with mental health problems, Philip Wischkaemper says. All the peer review committee members, except Warnick, are LCDLA members, he says. Key could not be reached for comment.

Wischkaemper says the LCDLA held a meeting of its membership after Bethke suggested the creation of a private defender's office in Lubbock. The association formed a committee of members to work on the project, Wischkaemper says.

Hogan, the LCDLA's point man for the project, says, 'The hope is in the long run we can set this up so it will run more efficiently than a public defender system or that the county can do with an assigned-counsel system.'

Lubbock County Judge Tom Head says county officials are 'very much in support' of the private defender's office, because they believe it will help keep the mentally impaired out of the jail. Head says inmates with mental health or mental retardation issues could make up as much as one-third of the jail population, although Hogan estimates their numbers at closer to 20 percent to 25 percent.

Drue Farmer, judge of Lubbock County Court-at-Law No. 2, is another supporter of the private defender concept, because the private-practice attorneys who will be assigned to represent mentally impaired indigents must receive training on how to recognize different types of mental illnesses as well as on competency and insanity issues. 'We felt like it was very important to have counsel specially trained to handle these cases,' she says.

Farmer says Lubbock County currently has a mental health wheel from which judges appoint attorneys. But while training on mental health issues is available to the attorneys on the wheel, their participation in the training is voluntary, she says.

Hogan says attorneys who currently represent mentally impaired indigents 'aren't sitting on their hands' while their clients sit in jail. But Hogan notes the attorneys don't have the resources to adequately serve these clients, who he says can take up an inordinate amount of attorneys' time.

The private defender's office should be able to represent mentally ill or retarded clients more efficiently, Hogan says. As planned, he says, the office will hire one lawyer who will serve as a full-time administrator. Two investigators/social workers also will be in the office to work with the mentally impaired clients, assisting them in meeting basic needs, such as finding housing and obtaining food stamps or checking on their whereabouts when they are scheduled for court appearances.

Hogan says many of the indigents with mental health issues are homeless and it has been difficult for attorneys to keep up with them. 'It's like herding cats,' he says.

Also as part of the office, the county will employ professional mental health workers who will screen jail inmates for mental illness or retardation and identify those who possibly could be diverted from the criminal justice system to treatment facilities. ..."
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The article goes on to describe the model for this private defender program and provides information about other innovative approaches to mental health issues in Lubbock County. This includes a partnership between Lubbock Regional Mental Health and Mental Retardation and jail staff that aims to provide services to inmates with mental health issues and, ultimately, divert them from the corrections system altogether.

Read the full article.

Earlier posts on this program are available here and here.