By Jim Schutze
By Rachel Watts
By Lauren Drewes Daniels
By Anna Merlan
By Lee Escobedo
Come January 1, one of the perks of being a state criminal judge may be legislated out of existence. No longer would judges have the unfettered discretion to appoint lawyers for indigent defendants. No longer would there be a patronage system--or at least the appearance of one--that allows judges to dole out court appointments to lawyers who support them politically. Ultimately the new law envisions dismantling an indigent-defense system that its critics say is a national embarrassment that denies equal justice for the poor. That is, if each of the state's 254 counties follows the spirit of the recently enacted Texas Fair Defense Act, and not just its letter.
Divining a new system to replace the old is now the subject of much debate among the Texas judiciary. Because the state is so diverse, the Texas Legislature didn't mandate the statewide use of any one indigent-defense system. All the law requires is that the criminal judges of each county publish written procedures for "timely and fairly appointing counsel." The law suggests a laundry list of appointment methods--public defender, a random system of rotation--that might be used, and then offers the carrot of state funds to those counties that go beyond the minimum requirements of the law.
Dallas County judges have taken the new law to heart. In what has become known as the Dallas Plan, the 15 felony judges are implementing an appointment system that will grade those attorneys who apply for appointments on their competency. According to those grades, these attorneys will be placed on a wheel and appointed to cases on a who's-up-next basis. Some lawyers rightfully fear they will lose a large source of their income, while some judges worry they will be stuck with attorneys who may possess some minimum level of competence but may be the wrong lawyer to handle a particular case. Whatever its flaws, the Dallas Plan may be the answer to a seven-year battle waged between legislators and the governor's office, judges and public interest groups to reform the manner in which the poor get criminal justice in Texas.
In 1994, when the state Bar took on the cause of indigent defense by setting up its Committee on Legal Services to the Poor in Criminal Matters, it may not have realized how politically charged the issue would become. The following year, the committee retained University of Texas at Arlington political science professor Michael Moore and Fort Worth magistrate Allan Butcher to conduct a survey of defense attorneys, prosecutors and judges to study the indigent-defense system in Texas. "The state had no data on how things were being conducted," Moore says. "Each judge in each county did things their own way. You literally had a crazy quilt--a mess of different procedures."
The data indicated that court-appointed lawyers were overworked and underpaid, Moore says, "which translates into a lack of incentive to do the job" and unequal justice for the poor. Moore also found favoritism in the system: Of the nearly 500 judges who responded to the survey, 30 percent believed that the decision of their peers to appoint attorneys was influenced by whether the attorneys contributed to their judicial campaigns. Another 46 percent thought their brethren were influenced by an attorney's reputation for moving cases through the system regardless of the quality of the defense. "I know that there are very conscientious judges out there," Moore says. "But our findings led us to conclude that the Texas indigent-defense system was in crisis. 'A national embarrassment' is the way I put it."
The state Bar didn't exactly embrace these findings. "It scared the hell out of the Bar to say the system doesn't work," says Dallas criminal defense attorney Vincent Perini, who has spent decades trying to reform the indigent-defense system. "The Bar leaders are always skittish about criminal-law matters."
But the report--at least, the part completed by 1999--caught the attention of state Senator Rodney Ellis, a Houston Democrat who had introduced legislation to overhaul the indigent-defense system by removing the appointment power of the judges and placing it in the hands of county commissioners. At a minimum, the bill eliminated the problem of dual loyalty for defense attorneys torn between zealously representing their client's interests and annoying the same judge who was paying them.
The legislation passed both houses, dropping below the radar screen until it was placed on Governor George W. Bush's desk for his signature. That's when the state's judges mobilized their opposition, making their position abundantly clear: Yes, there were isolated problems in individual counties (mostly the smaller ones), but why scrap the entire system, which they felt worked well? It would be irresponsible to take away their appointment power because judges are in the best position to determine the competency of attorneys. It also might be unconstitutional to give county commissioners (who know more about roads and bridges than they do about murders and rapes) appointment authority because the constitution makes the protection of individual rights a judicial function.
"The judges were frightened by the '99 bill and didn't want to give up the prerogative to appoint whom they pleased," Perini says. "They flooded Bush's office to convince him to veto the bill, which he did."