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Courting disaster

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.

The judges feel they were sandbagged by the amendments.

"It was not done in an underhanded, sneaky way," counters Pardue. He explains that last fall the judges lost their point man on legislative matters when Houston attorney Ray Speece died. "There's no way this would ever have gotten as far as it did if Ray Speece were alive," Pardue says.

What is clear is that most judges didn't discover the changes to the bill until June 1, after the Legislature had passed it. "I was down in Houston that Tuesday [June 1]," recalls McDowell. "And my office got a call from [a district judge], who was calling around about it." McDowell drove back from Houston the next morning, "working the car phone all the way." He arrived in time to attend a meeting the judges held June 3 at the Frank Crowley Courts Building. Among the attendees was Royce West. According to a number of judges, West expressed two concerns. First, "he felt no minorities were getting court appointments." Second, he felt "the indigents were not getting good lawyers."

These are quite different problems. In fiscal year 1998, Dallas County paid $8,351,969 to court-appointed attorneys to represent indigent defendants in misdemeanor, felony, and death penalty cases. But Mel Stepp, assistant county auditor, says that the county does not track what percentage of this figure goes to minority lawyers. A number of judges feel that the problem isn't that minorities don't receive appointments, but that qualified minority lawyers are just hard to find. According to the State Bar of Texas, of the 63,810 attorneys who were bar members on December 31, some 7,083 -- just over 11 percent -- identified themselves as racial or ethnic minorities. Hispanics were the largest group, constituting 5.5 percent of Bar membership, and African-Americans make up only 3.5 percent.

The second concern -- the quality of lawyers representing indigents -- has a direct relationship to funding. And it is here that S.B. 247 could actually have hurt the status quo. Commissioners courts are not courts at all, but the mechanism by which Texas counties allocate tax dollars. Their members are not required to be lawyers, much less judges, and usually aren't. (In Dallas County, three of the five commissioners are not lawyers.)

What they are, in many counties -- Dallas especially -- are budget-cutters. In fact, many of the fiercest turf wars between judges and county commissioners have involved fiscal issues. The most famous, and instructive, occurred more than a decade ago, when county commissioners attempted to limit what judges could pay their court reporters. The judges sued, and the Texas Supreme Court sided with them, ruling that the judges had the "inherent power" to govern affairs in their own courts.

Another such suit would have surely been forthcoming. "I can't imagine anything more fundamental than controlling the quality of the lawyers who appear in your court," McDowell says.

Naturally, McDowell and the other judges suspect a power-grab by commissioners. But the usual suspects among commissioners insist they had nothing like that in mind. They, too, had no idea that the changes were being made. "There's a certain amount of feuding I've done with the judges in the past," Dallas County Commissioner Jim Jackson says. "And they're never gonna believe this down at the courthouse, but this wasn't my doing. In fact, I wrote the governor a letter and told him this wasn't our bill. I did not even know the legislation had been passed."

Jackson didn't even bother sharpening his famous budget ax. "I don't know enough about [what the judges pay attorneys for indigent defendants] to know if I have any problem with it," he says. "They have a price list they say they go by. I don't know whether they do. I do know that some judges are actually performing a service; some actually pay less for court-appointed attorneys than it costs the public defenders' office per case."

Not that he was averse to the notion of cost cutting, had the opportunity come along. "I had thought that if we did get the authority, we'd leave the system in place but probably scrutinize the costs more."  

For now, though, everyone is happy. Judges have promised to set up a committee to ensure more minority appointments, both in Dallas County and statewide. "The judges promised Royce they would address his concerns, and he said he was going to call the governor and ask him to veto it," McDowell says. "I believe he did."

Judges have their authority intact -- and proof of their political muscle. "We don't usually get militant about things," McDowell says. "But they really came together on this, and they rarely agree on anything -- except a pay raise."


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