Alex Bunin is a badass, to begin with. He is a talented administrator, a great lawyer, and a kind and humble human being. Whoever nominated him as a candidate when Harris County was considering forming a public defender’s office deserves a medal.

The Dispute over Writs

Nobody but Judge Mary Lou Keel knows how the dispute between Keel and the Harris County Public Defender’s Office really began, but it burst out in July of 2014 when Keel wrote a letter to Mac Secrest, the chairman of the Harris County Public Defender Board of Directors complaining about the Public Defender’s Office “seeking to represent people without court appointment and offering legal services to people who have hired attorneys and have not been found indigent” in post-conviction writs.

The technical word for this is “bullshit”: The PD’s Office was not working on any cases without appointment. It was not seeking to represent people without court appointment. (It was, however, seeking without court appointment to represent people. But Keel’s error is larger than an ambiguous antecedent.)

What the Harris County Public Defender was doing — at the request of the Harris County District Attorney’s Office — was  contacting people who might be entitled to habeas relief in three classes. 

I’ll let Bunin explain, from his memo responding to Keel’s allegations in 2014:

The first … involved the need to notify and advise defendants that evidence, in a case for which they had been convicted, was compromised by some kind of error or misconduct.

The second … involved defendants who pleaded guilty to controlled substance crimes before a lab had tested the alleged contraband. The later testing resulted in findings that the item was not a controlled substance at all, was a different controlled substance or was of a quantity less than necessary to have proven the charged offense.

The third … resulted from the striking down of a section of a criminal statute by the Texas Court of Criminal Appeals.

Therefore, our representation in these cases does not diverge from our mission. The judges have discretion to appoint us or not. No better illustration of this is that we have no such cases in Judge Keel’s court because she has chosen not to appoint us.  

Here’s a dirty little secret: If people have gone to prison because Texas has screwed up, when Texas’s screwup is made public, even if it is on the front page of the New York Times, they don’t automatically get out. They have to find out about the screwup and get lawyers who have to file applications for writ of habeas corpus and get judges to order relief.

I handled (and am still handling) a bunch of writs in Bunin’s third category because that’s my thing, but I know of nobody else (other than the Harris County PD and a couple of DA’s Offices) reaching out to these defendants to tell them about relief, I wasn’t reaching most of the guys in prison, and a lot of the guys who weren’t in prison didn’t have the money to hire me to file writs on their behalf. Even if they weren’t flat broke, they couldn’t afford to hire competent writ counsel.

I know of nobody (other than the Harris County PD) who is reaching out to defendants in the first two categories. 

Even three years after I killed section 33.021(b) of the Texas Penal Code, I would lay odds that there are still scores of people in prison or on probation for violating that statute, when they should not be. I would not bet that there are many from Harris County, but other counties don’t have public defenders, and most District Attorneys’ offices never bothered to let their online-solicitation defendants know that the statute had been held unconstitutional.

So there was a need, and Alex Bunin and his Harris County Public Defender’s Office filled it. Keel was wrong. Did she appreciate being told that by Bunin and Secrest (who are both very diplomatic)? Oh, no. She did not. Not one little bit:

Yesterday when you invited me to next week’s board meeting, you told me that you were “not convinced” that the PD undertakes representation without appointment. As long as you deny facts that I have witnessed, attested to and documented, any further discussion between us about this issue would be counterproductive. Therefore I must decline your invitation. 

Because her bullshit worldview was challenged, Mary Lou Keel picked up her ball and went home.

Keel’s Pivot 

As far as I know that was the end of the matter. Until yesterday (from the Houston Press, via Simple Justice):

Two years later, however, because of a dispute that arose between State District Judge Mary Lou Keel and the public defender’s office about how, or even if, public defenders were allowed to help those 400 people get new trials, Keel has since then refused to work with any public defenders. In at least two years, she has appointed only one in her court. And today, she accuses the public defender’s office of lying to her, saying they were not trying to help those defendants in the interest of justice, but only to “make themselves look good.” 

So now the problem is that the PD’s office’s motive for helping those unjustly convicted people was not sufficiently pure for Mary Lou Keel. 

Of Dogs and Men

Why do dogs love us unconditionally? The probably don’t — dogs’ brains don’t work like ours do, so they don’t experience emotions like ours do. Why do dogs behave as though they love us unconditionally? Is it because they want us to be happy? No, it’s because that behavior evolved — the dogs who behaved as though they loved people unconditionally were more likely to be welcomed at the hearth, where the living is much easier, while those who didn’t howled outside in the cold.

Does it matter? Do you love your dog any less for it? Or does he do a satsifactory job of being a dog simply by behaving as though he loves you unconditionally?

We are evolved to help other people. It makes us feel good. Nobody helps other people because helping other people feels bad. Why do people help each other? Because there are rewards: maybe money, maybe glory, maybe satisfaction, maybe love of the fight. 

Does it matter? 

What motivates the Harris County Public Defender’s Office to file writs to get the unjustly imprisoned out of prison? Not money. 

Glory? Satisfaction? Love of the fight? 

Does it matter?

Keel’s Response 

I’ve never socialized with Mary Lou Keel, and I don’t know her other than her on-the-bench demeanor, but her response to the Public Defender’s Office’s success in unwinding hundreds (thousands?) of unjust convictions strikes me as one unhappy person’s envious response to someone else’s success. 

What makes the Public Defender’s Office look good? Doing good work. Setting unjustly convicted people free is a pretty good way for criminal-defense lawyers to make themselves look good. Is the motivation the setting free, the looking good, or the satisfaction? Does it matter?

Those who have never achieved great things — and secretly know that they never will — tend to look for reasons to diminish the accomplishments of those who have achieved great things — for example, by sniffily attributing some inferior motive to the achievement.

Alex Bunin and his team at the Harris County Public Defender’s Office have achieved great things.