On the Defense

Former State Counsel attorney O'Neil: "We were controlled by TDCJ."
Scott Nowell

The concept seemed simple enough in 1989, when the legislature established an indigent defense service for convicts accused of prison crimes. But recent years have brought all-out feuds on a variety of fronts for the beleaguered State Counsel for Offenders office.

Rampant staff turnover, an investigation by the prison system, rebellions over funding, resignations, firings and conflict-of-interest allegations have rocked the agency. A growing revolt to give the office freedom from the Texas Department of Criminal Justice has now picked up two new allies: the criminal defense lawyers' associations for Texas and Houston.

Harris County's defense lawyers' group last week passed a four-page resolution that condemns the office's control by the prison system and recommends that attorneys avoid working for the State Counsel's office. This position comes as TDCJ continues a lengthy probe into operations of the office. That has fueled more concerns because the state office that investigates prison crimes is also investigating the agency responsible for defending inmates. Critics say that puts the system at odds with itself.

Carl Reynolds, the general counsel for TDCJ, concedes that "It's a hard fit. Everyone agrees the setup is not ideal." However, Reynolds says there's no conflict of interest.

"Having more separation is not an irrational idea," Reynolds adds. But he says that the legislature, which faces a shortfall of a few billion dollars this year, is unlikely to fund a totally independent state counsel office because of the financial advantages that go with keeping it under the prison system's budget control.

Attorney David O'Neil, a former director of the trial services division of State Counsel, disagrees with the impact of that arrangement on the agency's convict clients. "State Counsel's interest is diametrically opposed to TDCJ. They want to keep them in prison, and we were trying to get them out."

Unlike Texas, most states have public defender offices that provide required legal representation for needy convicts accused of committing crimes while incarcerated. Texas had traditionally relied on locally appointed attorneys, until the legislature decided it could save money by creating a division within the prison system to represent accused inmates.

By last year, the State Counsel for Offenders had a $3.1 million budget with 25 attorneys and 48 support employees to deal with inmates across the state. The two primary sections are trial services, which defends convicts in criminal matters, and legal services, which helps inmates in civil areas such as divorces and child custody.

Friction inside and outside the office began flaring openly by the late '90s. Critics largely blamed the basic structure -- having the prison system closely involved in the program to represent convicts against that same system. For example, TDCJ had a definite interest in obtaining convictions against inmates charged with assaulting guards, yet TDCJ also was responsible for key funding decisions on legal representation for those inmates.

State Counsel's operations are supposed to be independent of TDCJ, answerable only to the Texas Board of Criminal Justice, which oversees corrections in Texas. However, TDCJ has significant input on salaries and administrative practices. As O'Neil says, "The board is supposed to make decisions, but what happens is they go to TDCJ and ask them what to do. We were controlled by TDCJ."

O'Neil charges that the agency lacks the expertise or desire to provide proper funding and staffing. He says, "TDCJ will not allow that office to become effective."

O'Neil, an ex-marine officer, was instrumental in bringing the issues to a head in 1999. In several criminal cases, he and other State Counsel attorneys began filing motions contending that they could not represent inmates because of an inherent conflict of interest caused by TDCJ's influence over their office.

Texas courts ultimately upheld the relationship, although some trial judges in Bowie and Jefferson counties had found that TDCJ had created a conflict by failing to provide enough trial attorneys. The State Counsel's office was allowed to withdraw from those cases, and the inmates were represented by appointed attorneys.

The motions ended after TDCJ agreed to appoint a liaison to study the conflict issue, O'Neil says, although the acrimony had already begun. He'd subpoenaed TDCJ officials, who viewed the subpoenas as a slap in the face. The fallout led TDCJ to start an audit of the State Counsel's office.

Some critics viewed the conflict-of-interest arguments as an effort by the office to pressure the state into raising salaries for its attorneys. The audit by TDCJ ended with a recommendation that the lawyers' pay be raised -- but that all the attorneys in the office receive the same $42,000 salary, and with no provisions for raises.

That plan drew objections from O'Neil and then-director John Fant. "This salary structure is going to destroy that office," O'Neil told the prison system board.  

TDCJ general counsel Reynolds notes that State Counsel attorneys got their raises -- they ranged from about $4,000 to $10,000 annually -- and that the audit and salary system were no different from that for the rest of TDCJ. "My office has the same pay structure," he explains.

O'Neil says salaries are the primary source of the discontent. "Imagine if you went into a hospital and said, 'Okay, every doctor is going to be paid the same: neurosurgeons with 20 years' experience the same as first-year interns.' How long do you think it would take for the good doctors to find another place to work?"

While the audit led to pay raises, it also revealed that some of the office's attorneys were doing private legal work during the hours they were supposed to be working at their state jobs.

Fant began requiring his staff to document their hours. According to some current employees, some attorneys either refused to log in or logged in and left the office. That brought complaints from then-State Counsel attorney William Bloodworth. He says he was hired by Fant in 1993 with the understanding that he could maintain his private practice as long as he completed his work for the office. "I could do my work there in two hours a day, and I'm supposed to just sit there?"

Reynolds says that attorneys are not barred from outside work, but they are mistaken if they think they aren't obligated to their state jobs for the regular 40-hour workweek. "I don't think any self-respecting state employee would take that position."

Bloodworth disputes that and says, "I cleared more files than anyone in that office." O'Neil, however, says Bloodworth told a female inmate that nothing could be done about her claims that her 25-year sentence was illegal. O'Neil took the case later and got the sentence reversed, he says.

"You can close a lot of files if you just tell the inmates to go to hell," says John Bennett, an attorney who worked for the office for five years.

Fant has increased his monitoring of work time for the staff attorneys, and Bloodworth and fellow attorney John Green were dismissed in 2001. But those dismissals would ultimately take their boss's job as well.

While under fire for his outside work, Bloodworth had passed along a tip to TDCJ: Attorney Fant, the nine-year supervisor of the State Counsel's office, was not properly licensed to practice law in Texas.

David O'Neil, who is representing Fant, says it was common knowledge around the office that the director's license was not active. State Bar of Texas spokesperson Kimberly Schmitt says Fant was licensed to practice law in 1979 and became inactive from 1982 to 1986 (he had become a judge in Louisiana). After his return to Texas, he was on administrative suspension for failure to pay his bar dues.

Fant's position was that he was an administrator rather than a practicing attorney, so it wasn't necessary that he keep his license current. But he took O'Neil's advice in 2000 and returned to good standing with the state bar.

However, the TDCJ investigation led to Fant's firing in September. The department says he falsely claimed on his 1992 employment application that he was a licensed attorney. In a written statement, TDCJ said Fant also filed "false statements in Walker and Anderson counties in which he claimed to be a licensed attorney."

The results of the investigations were forwarded to Walker County District Attorney David Weeks, who says he had been at meetings where Fant was giving legal advice. Weeks has filed charges of perjury against Fant.

One employee of the office says that Bloodworth and Green went to TDCJ with their tip on Fant only to protect themselves because they knew they were about to be fired.

Bloodworth denies that, saying, "I was fired for blowing the whistle on John Fant."

Fant's dismissal has brought on a lengthy investigation of the State Counsel office. TDCJ Inspector General John Moriarty would not comment on the investigation, which should conclude this month, but there have been allegations of theft and sexual harassment.

Turnover has reached a crisis point. According to one attorney, her department is supposed to have 11 lawyers, and it has four. Another department is supposed to be staffed with 11 attorneys but has only six.

Several current employees, who spoke to the Press off the record, tell of a working environment devoid of leadership and poisoned by backbiting and paranoia over rumors of pending indictments. One said, "If you go over any attorney's files with a fine-tooth comb, you can find something to indict him on."  

The investigation took another twist last fall when investigators moved in just across the hallway from the State Counsel's office in Huntsville. Inspector Moriarty says the move was coincidental -- that his staff put a bid in on state office space and was assigned offices next to State Counsel's.

That proximity has some State Counsel attorneys concerned about a new potential conflict of interest. Moriarty's office is the investigative arm of prison prosecutors, and is investigating the attorneys who defend the inmates that his staff also investigates. Moriarty scoffs at the implications: "No one is looking at inmate files."

As for O'Neil, his work for the State Counsel ended in 2000, shortly after he was jailed for contempt. He had showed up in the court of Huntsville Judge Erwin Ernst to request a continuance in a case where the inmate defendant's attorney had quit the office two weeks earlier. Ernst ordered him to trial and held him in contempt when he refused to proceed.

O'Neil resigned soon after, citing the "ethical restraints" he had to work under.

The attorney shakes his head at the current probe of the office by the investigators who moved in next door to the State Counsel's office.

"They have such a prison mentality," O'Neil says of the investigators, "that they can't even understand how that might be intimidating."

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