Courting disaster

Texas judges rally to save a bit of patronage

On the surface, it looked like just another Monday on the fifth floor of the Frank Crowley Criminal Courts building. Potential jurors warmed the benches, waiting for their chances to do their duty. In one of the four courts on the south wing, a lone TV news cameraman aimed his lens through the window at this week's capital murder trial-in-progress.

"His name is Carlton Turner Jr.," the cameraman said. "Remember last August? He's supposed to have killed his folks for their money. Of course, he claims they abused him."

But as the low-rent remake of the Menendez brothers' case unfolded in District Judge Karen Greene's courtroom, another drama was wrapping backstage. Down the hallway leading to Greene's chambers was a hand-scrawled note taped above a press release, faxed less than 24 hours earlier. "He vetoed the bill!" the note read. The press release announced that Sunday night -- the last moment before it and a slew of other bills would pass into law -- Gov. George W. Bush vetoed Senate Bill 247.

For a bill that went virtually unnoticed until it was passed on May 31 during the eleventh hour of the legislative session, S.B. 247 had stirred up quite a tempest. Though its stated purpose was to gather information on how much money each county spends on indigent representation, the bill's effect would have been something else entirely. Had it passed, the law would have stripped the judiciary of its patronage system by shifting the power to appoint lawyers away from criminal judges and into the hands of the county commissioners -- the branch of government that feuds most often with the judiciary.

"Senate Bill 247 proposes a drastic change in the way indigent defendants are assigned counsel," read the governor's press release. "While well-intentioned, the effect of the bill is likely to be neither better representation for indigents nor a more efficient administration of justice."

No matter. By the time one of the bill's sponsors reportedly called the governor to recommend a veto, the measure had prompted state judges to set up a commission designed to ensure that more minority lawyers are appointed to represent indigent defendants -- which is what the bill's real purpose seems to have been all along.


It all began last January, when state Sen. Rodney Ellis of Houston introduced the legislation. His bill at first was anything but controversial. As introduced, it contained four provisions: It gave judges seven days to appoint counsel for indigent defendants. It required that magistrates advise arrested persons orally of their right to appointed counsel and give them a written statement in their native language informing them of procedures used to appoint counsel. It authorized county commissioners to set up public defenders' offices, alone or in cooperation with other counties. Finally, it required county officials to prepare a yearly report detailing amounts spent on indigent defense.

"It went into a stack of stuff that didn't affect me," recalls Pat McDowell, administrative judge presiding over District 1, which includes two dozen of the most populous counties in North Texas. "We'd already done all the stuff that was in it, so we weren't really tracking [the bill]," McDowell says. Like other major metropolitan areas in Texas, Dallas has taken steps to ensure that counsel for indigents are appointed within a reasonable time. Under local rules, Dallas police must charge a defendant and judges must appoint counsel within 72 hours of arrest. Dallas' County commissioners have already set up public defenders' offices. Nobody quarreled with the written statement rule, and the mandated annual expense reports would contain information already available at the county auditor's office. "The way it was explained to me, it dealt with rural areas," says Oak Cliff senator Royce West, who signed on as the bill's co-sponsor

"In little counties, it's more of a problem than in Dallas County," concedes Craig Pardue, who is charged with keeping track of legislation on behalf of Dallas County commissioners.

For their part, the judges weren't paying it too much attention. "Denise Davis of my office read the bill when it was first introduced," recalls Jerry Benedict, executive director of the office of court administration, which oversees the state courts. "She said it was innocuous, so we didn't watch it, and none of the judges had asked us to watch it." And because nobody was watching, nobody read the amendments when the bill emerged on April 26.

It had been radically altered. Amendments to the new bill stretched the window for appointing counsel to 20 days -- perversely, a significant lengthening of time in most cases in Dallas County. But if the 20-day deadline was blown, the penalty would be stiff: mandatory release or bond reduction. Likewise, the bill provided that if the state was not ready for trial following a series of short deadlines, the defendant would have to be released or have his bond reduced.

But the change that ultimately evoked the most fury was a provision that would have taken away the judges' right to decide who gets to represent indigent defendants, handing that decision instead to county commissioners. A number of people involved in the passage of the bill say that Ellis had several concerns. For one, court appointments have always had a rather distasteful appearance, since often the largest contributors to judicial campaigns get the choicest appointments. But most of all, Ellis and his co-sponsor, Oak Cliff Sen. Royce West, were concerned that minorities were not getting their fair share of appointments.

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