Some judges accused of not working enough, as Dallas County spends millions on ‘backlog’ courts

Lower disposition numbers of some criminal judges in Dallas County have led county commissioners to accuse them of not working full days. And the county is under pressure to clear a pandemic-induced backlog of many thousands of criminal cases.

By Bret Jaspers, KERA NewsMay 18, 2022 8:30 am,

From KERA News:

State felony district Judge Hector Garza disposed, or cleared, 6,632 cases over the 40-month period ending in April. During that same period, Judge Amber Givens disposed of 4,572.

That’s more than 30 percent fewer cases.

Lower disposition numbers of some criminal judges in Dallas County have led county commissioners to accuse them of not working full days. And the county is under pressure to clear a pandemic-induced backlog of many thousands of criminal cases. Tens of millions of dollars in state grants are at stake if the county doesn’t close 90% of its cases, averaged over five years, by early August.

“This has impact on our jail. This has impact on our bottom line,” County Commissioner John Wiley Price said at a meeting earlier this month.

While county commissioners have said broadly that judges aren’t working as much as they should, a KERA analysis of disposition numbers suggests the issue is more nuanced than that.

Dispositions have picked up substantially as the pandemic has waned, but several people who work in and around the criminal justice system say the backlog could take years to work through.

Dallas County had over 20,000 active pending felony criminal cases at the end of March, according to a state database. There were over 16,000 active pending misdemeanor cases.

The numbers, some judges say, don’t tell the full story of what they’re doing or how they fulfill their main job of making sure a case proceeds fairly for both sides.

A judge’s role

As the data show, different felony judges handle their courts differently.

State district judge Nancy Kennedy had above average dispositions in her felony court between January 2019 and April 2022. She told KERA she and her staff physically returned to court two weeks after the pandemic hit because it was harder to get work done at home.

Kennedy said it is “offensive” to her when commissioners broadly say judges aren’t working.

“I know that in this court, we are working. And it’s not just me,” Kennedy said. “It’s my court reporter, it’s my coordinator, it’s the bailiffs” and others.

Kennedy explained it’s easier to work with prosecutors and the defense to move a case forward if she is physically sitting in court. Attorneys are able to drop in to discuss trial scheduling and other business.

“That’s why it’s so important, for me, to be here,” she said. “If I’m not here, I don’t get to have those meaningful conversations with those attorneys about where we are, what we’re doing.”

Deandra Grant, president of the Dallas Criminal Defense Lawyers Association, said talking with a judge in person is a much better way to work.

“You can move a lot more cases that way,” she said.

For Judge Carmen White, who handles misdemeanors, numbers are a poor measure of a judge’s work ethic. Many other elements can affect a case and a judge handles many proceedings that don’t end in a disposition.

“In the end, if all you’re driven by is how many cases and numbers you dispose, then you encourage everybody in the system to push people in directions that may not be fair and just,” White said. “And nobody [would] want to be at that defense table with a judge who says, ‘I don’t really care about fairness and justice but my numbers today mean you got to do this.’”

Pressure points

The COVID-19 pandemic — and resulting social distancing measures — led to a pause in jury trials until the spring of 2021. When they resumed, only two juries could be chosen each day so that participants could be six feet apart during jury selection and on breaks.

Stephanie Huff, the presiding felony district court judge in Dallas County, said staffing, spacing requirements, and COVID infections have been real barriers to doing more trials.

“It’s not just the judges that show up,” she said. “We have witnesses, we have family members … and sometimes, we’ve had to stop in the middle of trial because someone’s contracted COVID.”

A jury trial is time consuming, but the vast majority of cases don’t end in one. Still, without them, lawyers didn’t have to take a hard look at the strength of their cases and more seriously evaluate a plea bargain.

“A trial moves one case and disposes of one case,” said Alison Grinter Allen, a criminal defense attorney who represents clients in Dallas and Collin County. “But the threat of trial disposes of 99% of the cases that come to the court.”

The pace of jury trials has picked up this spring, as COVID cases declined and the county softened its public health recommendations.

But the backlog remains. Aside from justice delayed for defendants and victims, there’s money at stake.

The county must reach that five-year disposition rate of 90% or risk losing $50 million in grants from the governor’s office, county commissioners say.

“We have 7,731 cases to be disposed of” by August to meet the goal, Price said.

Price has produced his own judicial data for months, but judges say it isn’t accurate, because the county uses an outdated computer system.

“We find it unconscionable that some of our Commissioners would rely on this inaccurate data and place blame solely on the shoulders of the Judiciary,” the judges wrote in a written statement Tuesday..

In an email, Gov. Greg Abbott’s press secretary said the 90% clearance requirement applies to most of the criminal justice programs coming from the governor’s public safety office. Her statement said the state would “take into consideration the burden COVID has placed.”

White said this deadline isn’t new, and every year around this time county officials and judges have a conversation about reaching the disposition rate.

“Every year it resolves itself,” she said.

Role of the DA

The criminal district attorney’s office is also part of the machinery affecting criminal cases.

Defense attorneys and judges have suggested cases are getting bogged down in part due to policies coming from Dallas County District Attorney John Creuzot — in particular, his requirement that defendants in jail be assessed for their risk of reoffending before they leave on probation.

Creuzot pushes back on that assertion.

“We don’t set cases, judges and coordinators do,” he said.

The assessments look at a range of risk factors, like criminal history and substance abuse problems, to better tailor the defendant’s supervision while on probation. The goal is to reduce the chance the person commits another offense. Creuzot, a former judge, said a study of Dallas County defendants from the early 2000s showed doing assessments before sentencing led to 59% fewer people having their probation revoked.

“It’s a recognized best practice across the United States to do the assessments prior to placing the person on probation,” Creuzot said.

Yet defense attorneys have said in their experience, the assessments are too time-consuming.

“It takes six weeks longer than it otherwise would have,” said Grinter Allen, although she acknowledged the “pipeline is moving.”

Grant said she understands where Creuzot is coming from but called the process of doing the assessments “very cumbersome.” She said the county needs a lot more staff to do them in a timely way.

The adult probation department conducts the assessments. In a recent request to county commissioners for more money for clinicians, it said the average number of monthly evaluations during the pandemic is 460, up from about 300 before.

Creuzot said he asked the probation department for data on how long assessments take, and in the past offered to put money from his office’s budget towards hiring more assessors. Creuzot also said when he’s heard critiques of the assessments in the past, it mostly came from defense attorneys who asked judges to delay cases for months, and “then want to do a plea.”

Grinter Allen, who recently ran for judge, said she’d like to see prosecutors simply cut more aggressive deals to clear the backlog, provided there wasn’t a risk to public safety.

“Everybody would benefit from a fire sale,” she said. “It’s not an uncommon thing.”

Creuzot said at the start of the pandemic he told his staff to be more flexible with plea deals in some cases in order to move them along. He said his supervisors understand the need to continue that approach at times.

A fair defense, a fair shake

Caseloads of attorneys may be another source of friction in the system. The public defender’s office handles about half of the county’s indigent cases.

Judges assign the rest to private attorneys.

Public defenders assigned to the Dallas County felony district courts averaged over 350 cases per year, according to a Judicial Management Report from fiscal year 2019. Public defenders assigned to the misdemeanor criminal courts handled over 1,200 cases that year.

That’s high. Dallas public defenders handle about twice the average yearly caseload of their counterparts in other counties, aside from also-high Bowie County, according to a different study that looked at public defender caseloads from 2014 through 2017.

The county public defender’s office did not respond to emails from KERA.

A high caseload can affect the quality of the defense. Guidelines from a 2015 Texas A&M report suggest caseloads should be significantly lower than Dallas’ to provide quality representation to poor defendants.

“Defense attorneys should not just be about processing cases,” said Geoff Burkhart, Executive Director of the Texas Indigent Defense Commission. “They should be about fighting for their clients, zealously advocating in court for a fair result.”

County commissioners approve the budget for the public defender’s office.

Grinter Allen, a former public defender who now takes on indigent clients in private practice, said attorneys like her are also handling a much higher caseload, leading some to stop working on those cases entirely.

Role of the commissioners

Commissioners approved funding for two “backlog” courts — one for misdemeanors and one for felonies — in November. The courts were slated to begin operation on January 4, focusing first on defendants currently in jail with cases older than one year.

The misdemeanor backlog court opened on April 11. It’s held two trials and closed 89 cases, according to county Criminal Courts Manager Carla Gilkey. Before that, a public defender worked on cases in a new “backlog docket,” leading to 170 additional closures.

The felony judges, Huff said, have waited for months for back-ordered audio-visual equipment for their backlog court. They’ve also had a hard time finding a designated court reporter. As a work-around, judges will instead take turns having a visiting judge hear additional cases from their dockets in an auxiliary courtroom.

Commissioners approved spending about $3.6 million combined for the two backlog courts.

Other new spending includes:

The money for these items came from the American Rescue Plan Act, a federal law passed in early 2021 by Democrats in Washington.

The county’s public defender’s office is also applying for $2.6 million in state grant money.

Despite the pressure Price and other commissioners have tried to place on the judiciary, Commissioner Elba Garcia has repeatedly reminded them that judges are elected officials — and not beholden to the commissioners court.

“We, this court, have given them all the tools they need to do their job,” she said. “Now, it’s in their court.”

Each judge has the power to run his or her court as they see fit, making them ultimately accountable to the people who put them on the bench: the voters.

Yet judicial races typically have very low turnout. In the spring Democratic primary, the district felony judge race with the most votes had fewer than 9% of registered voters casting ballots. And none of the 14 felony district court candidates on the ballot this fall face a Republican opponent.

(KERA emailed every felony district judge to request comment on their disposition numbers. Aside from Stephanie Huff and Nancy Kennedy, who were quoted in this story, Judge Audra Riley referred KERA to Huff and said, “We are in the process of deciding how to best address the concerns of the backlog and the number of dispositions.”)

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