By Jim Schutze
By Rachel Watts
By Lauren Drewes Daniels
By Anna Merlan
By Lee Escobedo
By Eric Nicholson
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."
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."