Capitol Chronicle

It is truly inspiring how testifying before a legislative budget committee can abruptly motivate a state employee to get religion. That was the apparent effect the Senate Finance Committee had on Sharon Keller, presiding judge of the Court of Criminal Appeals, who testified before the committee last week on the court's proposed budget. Senators Carlos Truan, D-Corpus Christi, and Chris Harris, R-Arlington, had already lightly grilled Keller's Supreme Court equivalent, Tom Phillips, about the matter of state-supported indigent defense: that is, legal assistance and representation for poor people. Phillips offered polite deference ("I think I speak for the court when I say we're for that"), and then punted to the CCA, on the inarguable logic that while the civil courts over which he presides generally bulge with deep-pocketed plaintiffs and their high-dollar attorneys merrily suing each other, the criminal courts are largely reserved for poor people.

"Judge Keller is here," said Phillips, "and I'm sure she'll have some initiatives to offer in that regard." At that moment Keller no doubt was thinking, "With friends like Phillips ..."

A few minutes later, Keller -- a hard-right Republican distinguished like her colleagues by her virtually reflexive denial of any and all criminal appeals, even when the appointed defense attorney was unconscious -- duly took her place in the hot seat. (It was Keller who led the court to a ruling that indigent defendant Calvin Burdine's death penalty conviction should not be overturned simply because Burdine's court-appointed attorney, Joe Cannon, had fallen asleep during Burdine's trial.) Truan asked her about those initiatives Phillips had promised. She mentioned doubling the court's grant to the Texas Criminal Defense Lawyer's Association, and looking into a state defense lawyer certification program.

That was it.

The committee was not pleased. Truan dismissed Keller's "initiatives" as simply slight increases in programs carried over from last session, which would do little to improve indigent defense, and he called repeatedly for Keller and her colleagues to "show some leadership" on the issue. Keller responded tentatively that indigent defense was a local, county matter, but that "the court supports efforts to improve indigent care, and whatever the Legislature asks us to do in that regard, we'd be happy to do." Truan again demanded leadership from Keller and her court -- "If you don't do it, who will do it?" he asked -- and the tension was only broken when Houston Democrat John Whitmire suggested politely that Keller return to the committee in a week or two with an "aggressive" plan to address the problem: "Any of us who've practiced law or spent any time around the courts knows the current situation is terribly inadequate."

Chairman Rodney Ellis closed the discussion by noting that Keller's judicial colleagues had shown "plenty of leadership" last session in demanding Gov. Bush veto an Ellis reform bill. "That's history," Ellis said amicably, "and we want to move forward," but he hoped that the judges would now show the same "commitment, vigor, and tenacity" in solving the state's crisis in indigent defense. "I do hope the judges can show some leadership," said Ellis, "instead of leaving that to others."

Keller apparently got the message. She promised to return to the Finance Committee with a plan -- and reportedly spent her subsequent session with the House Appropriations Subcommittee on criminal justice testifying to her enthusiasm for indigent defense.

We shall see. At the moment, indigent defense is a hot item at the Capitol, after its dismal showing two years ago. As Sen. Ellis recalled to Judge Keller, the senator did manage to get a reform bill through the Lege: Senate Bill 247 would have required that an attorney be appointed for a poor defendant within 20 days of an arrest, and that county commissioners set up an attorney-appointment system and begin compiling statistics on indigent defense. Although under Ellis' bill the courts could still have maintained their appointment power under county administrations, the prospect of county commissioners sticking their noses into what judges consider their private fiefdom set off an alarm in the Harris County courts. The judges' concerted public lobbying effort persuaded Gov. Bush to veto the bill. Ellis and his colleagues say they are determined to do more and better this time.

A few things have changed in the interim. Gov. Bush has moved elsewhere, and his successor -- no longer operating under the campaign compulsion to insist that everything in the Texas legal system is Jes Fine -- has at least publicly indicated he would like to see improvement in statewide standards for criminal defense. And Texas Appleseed (a nonprofit public interest law center with some heavy hitters from the Texas Bar among its board members) recently completed a broad study of the statewide indigent defense system, only to come to an unsurprising conclusion: We have none. Instead, says "The Fair Defense Report," each county (and often each court within each county) has established its own hit-or-miss procedures for providing indigent legal defense, with predictable results: "There is a complete absence of uniformity in standards and quality of representation among the indigent defense systems" in the counties studied, which encompass 61% of the state's population.

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Finding a Fair Defense

Most of us get our notions of what happens in a courtroom from television shows like The Practice or Law and Order, in which high-minded prosecutors and ingenious defense attorneys play public-spirited hardball over matters of principle while clients and jurors look on in nervous awe. It makes for high melodrama, but the untelevised reality is something else again. The Appleseed reports, by contrast, make dispiriting reading. (A separate report, "Selling Justice Short," is devoted to juvenile indigent defense; both are at www.appleseeds.net/tx.) They spell out in detail the ordinary practice of the law in many criminal courts, where the entire emphasis is on speed and cost-cutting -- that is, moving defendants and their cases through the courtroom in the least possible time and at the least possible expense to the court and the county. Fair and adequate defense is way down on the list of court priorities. For many judges, "indigence" itself is a dubious concept: If you can afford pay your bond, they insist, you afford can pay a lawyer -- but for many folks, hiring a lawyer is a ticket to the poorhouse.

Twenty days might seem a good long while to wait for a lawyer, but in some Texas counties, defendants may languish in jail for weeks or months before counsel is appointed. Then again, certain judges and prosecutors appear to believe any attorney at all is superfluous. Some prosecutors meet with in-custody defendants and persuade them to "waive" counsel and plead guilty, in return for lower fines or time served. In at least one county, the prosecutor agrees on a deal with a jailed defendant and then the prosecutor assigns a local attorney to handle the pleading and the paperwork -- no questions asked. One attorney said, "the local culture is: Get it over with as quickly as possible and get on with your life." Of course, the judges and prosecutors giving such advice don't have to live with the consequences of a decision made with no access to legal counsel.

Moreover, the lawyer you get may well be worse than useless. In many counties, defense attorneys are directly beholden for their livelihoods to the judge who will appoint them -- or not, depending on whether the lawyer works fast enough to please the judge, or has contributed enough to the judge's campaign fund. As you might guess, such a system makes quick hash of the notion that the attorney's first loyalty is to his client. One defense attorney told investigators, "An attorney who files a lot of motions and asks a lot of questions creates a problem for the judge. You tick off the judge and you don't get any more appointments." And the judges have additional methods of enforcing order in their courts: Most court-appointed attorneys are paid a flat (and low) fee for each case, which means that for every additional hour a lawyer spends on a case, he's making less money. In other instances, those attorneys who submit bills which the judge deems too high -- or the consequence of too earnest a defense -- find their fees radically reduced. Lawyers learn their lesson, or they find another line of work.

An old hand summarizes how the current system works: "We all know what the judge expects, and how to move the cases along."

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Paying for Your Right

In addition to general criminal representation and juvenile defense, the Appleseed investigators also considered the situation for capital offenses and defendants with mental illness. The practice is much the same, only with greater consequences. Criminal courts make little attempt even to identify those defendants who may be mentally ill, and generally have little or no resources to give special attention to those defendants. For capital offenses, it's a roll of the dice whether an appointed attorney will have any serious experience in capital cases at all, and even if he does, he won't have the investigative nor expert resources necessary to defend or mitigate a capital case -- what money the county has, it will spend on prosecuting, not defending, a capital defendant. The deck is stacked against the defense from the moment the jail door closes; if you believe most accused defendants get off because of "technicalities," you're living in some place other than Texas.

Most states devote at least some state funding to indigent defense, and many provide 75 to 100% of the cost. The state of Texas currently spends nothing for indigent defense, although through our various counties we are spending the princely sum of $4.65 per capita, which puts us near the very bottom of the 50 states. It doesn't seem too much to ask that the state set aside another sawbuck or two on our behalf to provide a right guaranteed in both the U.S. and Texas Constitutions.

Several legislative aides are brandishing Appleseed's new reports around the Capitol this session, but they say they're already fighting the prevailing wind that insists there's no money for new programs. Appleseed's legal director, Bill Beardall, on the other hand, says he is optimistic that something will be done, arguing, "The most important thing is for Texas to make a substantial start on modernizing its indigent defense system -- which doesn't really yet exist." Beardall listed six priorities for reform:

(1) a uniform statewide standard for prompt appointment of an attorney

(2) a minimum standard of attorney qualifications

(3) a uniform standard for indigence, based on income and family size

(4) a system of attorney appointment independent of individual judges (Travis and Denton Counties already use such a system)

(5) the creation of a state Indigent Defense Commission "as a catalyst and engine for incremental reforms" and to manage federal grants and set minimum standards

(6) the creation of assigned-counsel assistance programs analogous to existing prosecutor assistance programs.

Asked his response to the likely legislative rejoinder that the taxpayers don't want to spend any more money on criminals, Beardall said, "We're not really spending it on criminals. We're spending it on a justice system that will be more efficient and more fair. People who should be most supportive of indigent defense are those who want to be tough on crime -- because if defendants are railroaded into plea bargains or jail because they can't get an adequate defense, that leaves the real perpetrators out on the street." No doubt Judge Keller will want to make that argument when she returns to the Senate Finance Committee with her proposals sometime next week.

Sen. Ellis was expected to file an omnibus bill on indigent defense this week. The Texas Criminal Justice Reform Coalition is sponsoring a Criminal Justice Reform Advocacy Day at the Capitol March 5. Call 441-8123, or see their Web site at www.ProTex.org/criminaljustice.