Naked City

On the eve of the 40th anniversary of the landmark U.S. Supreme Court decision in Gideon v. Wainwright -- defining the right of fair and equal treatment under the law -- a coalition of indigent defense advocates gathered at the Capitol March 20 to denounce two House bills they say would weaken provisions of the Fair Defense Act, enacted in 2001. The act standardized procedures for appointing lawyers to indigent clients and set guidelines for counsel competency, among other reforms. But the law's supporters, led by the Equal Justice Center and Texas Appleseed and joined by a host of civil libertarians and various religious leaders, are worried that if passed, HB 2656 or HB 1412 will strip away the act's fundamental reforms. HB 2656, authored by Rep. David Farabee, D-Wichita Falls, would deny counsel to indigent defendants who have been released on bond until the date of their first court hearing. HB 1412 by Wayne Christian, R-Center, would eliminate the requirement that the list of attorneys available for appointment to indigent cases be made up of only attorneys who apply to be on the list.

Opponents of HB 2656 say it is likely unconstitutional. In a letter to legislators, UT law professor Robert Dawson points to U.S. Supreme Court decisions opining that the Sixth Amendment right to counsel "attaches" as soon as a person is accused of a crime and that delaying appointment of counsel to a person out on bond would diminish that right. "Some have advocated delaying appointment of counsel, arguing that adversary judicial proceedings do not begin until a prosecutor files a formal charge in court," he writes. "The U.S. Supreme Court has squarely rejected this argument."

Under HB 1412, the elimination of the requirement that attorneys be appointed from a list of willing lawyers would return Texas' system to where it was before SB 7, with judges maintaining the right to appoint arbitrarily any lawyer to a case. That practice often led to courthouse "plea mills": lawyers keeping dockets humming by pleading their clients guilty without even a preliminary case review.

Fair Defense Act advocates said lawmakers should stick with the law and ensure that its provisions are actually being implemented statewide -- a reality that they say is still somewhere in the future. "The question now before the legislature is whether we'll follow through on [this] commitment or ... roll back the clock," said Bill Beardall, executive director of Equal Justice Center.