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In the meantime new alliances had formed. With an eye toward future legislation, Ellis worked with the Appleseed Foundation, a public-interest group that chose the Texas indigent-defense system as one of its causes. Texas Appleseed commissioned its own study, and after canvassing 23 Texas counties, published findings that recommended 50 areas of reform. "The bottom line is, there was no uniformity in the system," says Texas Appleseed executive director Annette LoVoi. "There is very little accountability, a lot of disparity in the treatment of defendants and a lack of timely appointments for defendants who may stay in jail for months in some counties before a lawyer is appointed."
For the 2001 legislative session, Appleseed helped Ellis draft the Fair Defense Act, which authorizes a major overhaul of the indigent-defense system. Only this time the fate of reform would be different. This time a presidential election had put Texas justice in the national spotlight, and the indigent-defense system came up wanting. The public was well versed in the frailties of a justice system that executed more defendants--most of them indigent--than any state in the nation, and the reform movement had its poster child in the case of the sleeping lawyer. What better picture of incompetence than a court-appointed attorney who allegedly slept through part of a death-penalty case?
What's more, the measure didn't try to eliminate the role of the judges in the appointment process, but merely tried to regulate their discretion. And rather than impose a one-size-fits-all system on the entire state, it left the judges of each county with the option of devising a system that worked best for them. "The bill is clearly a compromise piece of legislation," Ellis says. "Judges can decide to have a slightly enhanced version of the status quo, but with the light of day shining down on them."
Keeping the judges involved in the process muted much of their opposition to the bill.
"As soon as the sleeping-lawyer case came out," says Dallas Criminal District Judge Keith Dean, "you knew the newspapers were going to beat the tom-toms until something happened. No way in the world you were going to stop some sort of bill from coming out. We [the judges] thought it was inevitable."
Besides recommending ways of retooling the state's court-appointment system, the Fair Defense Act mandates that an arrested person in larger counties like Dallas be appointed an attorney within 24 hours of the court's receiving notice of that person's request for counsel. It also requires judges to reasonably compensate attorneys according to published uniform standards. "The bill's heart and soul is the timely appointment of competent counsel to indigent defendants," says Criminal District Judge Harold Entz. "And it's nothing we don't already do in Dallas County."
Nevertheless, last May the Dallas felony judges (the misdemeanor judges are working on their own plan) began to devise a strategy to implement the new legislation. Dean chaired that portion of the committee that designed a judicial wheel, a master list of all qualified attorneys who will be court-appointed according to their order on the list.
The committee's work has resulted in the Dallas Plan, which Dean hopes will be "a model for the state." It sets out a list of objective qualifications that lawyers must meet if they wish to be placed on the wheel. Based on an intricate grading system that considers years in practice, trial experience, legal education and ethical violations, lawyers will be qualified to receive appointments at four possible levels. The highest level is reserved for those qualified to represent indigents charged with the most severe cases: first-degree felonies such as murder and aggravated sexual abuse. But just because an attorney meets the minimum level of competence, that doesn't guarantee him a spot on the wheel. A majority of the county's 15 criminal district judges must then approve the person in a "secret" and anonymous vote, deciding not only at what level the attorney should be ranked, but if the attorney should be on the list at all. So if a judge has a personal dislike for or distrust of a particular lawyer, he can lobby his brethren to keep the attorney off the wheel altogether. The attorney, however, has little recourse to contest the majority's decision.
"There needs to be some way to appeal that decision," says one Dallas criminal-defense attorney. "The vote is secret, and the decision might be based on a lawyer's reputation for being difficult, even though he fights like hell for his clients."
For "good cause," a judge can also skip an attorney whose name comes up next on the wheel as long as the attorney is returned to the top of the list. "The main concern of the plan was that you would have a person appointed that just didn't have any business representing someone in that situation," Dean says. "A lot of our cases are in the brain-surgery category, and we don't want a general practitioner to handle them."
Dean admits the Dallas Plan is still "a work in progress," which is why it can be changed by a two-thirds vote of the judges. Dallas is far ahead of most of the other counties, some of whose judges have decided to do nothing because they "believe that the statute is unconstitutional anyway," says Dean. Also, since the law does not mandate the use of any one indigent-defense system, a county might decide the system it has in place is just fine.
Texas Appleseed believes that Dallas has the right idea. "A qualification scheme is very much in line with the spirit of [the Fair Defense Act]," LoVoi says. "What Dallas is doing is heartening. Of course, the devil is in the details."