Naked City

The Texas Defender Service and the Equal Justice Center released their second report last week on the state's implementation of the Fair Defense Act, passed by the Lege in 2001. The act was designed to strengthen the state's tarnished criminal justice system by strengthening the requirements for fair and prompt assignment of qualified defense counsel to poor criminal defendants in capital cases.

But according to the report, two years after passing the act, the state still has more work to do to achieve those goals. For the report, TDS and the EJC focused on the 33 counties with the "most active" death penalty court dockets, which combined account for 87% of all inmates currently on Texas' death row. Among the findings: None of the state's nine administrative judicial regions have "performance standards" to evaluate which attorneys are qualified for death penalty appointments; many counties have yet to ensure that defendants have prompt access to an attorney; and many counties have yet to allot enough money to pay for defense investigators and experts.

Travis Co. got average grades across the board for its implementation of specific Fair Defense Act requirements, with one high mark for the county's systematic attorney selection process. Still, according to the report, the county "fails to allow for reimbursement of reasonable and necessary investigator and expert expenses incurred without prior court approval," and has yet to provide a way for appointed attorneys to appeal judicial decisions regarding their pay for work on indigent cases. Further, Travis Co. is part of the state's third judicial region, which got low marks for failing to comply with the act's requirement to "engage in ongoing annual reviews of attorney training."

The report notes that the requirements of the Fair Defense Act, even when followed to the letter, still fall short of the standards for "high-quality legal representation" outlined by the American Bar Association -- standards the U.S. Supreme Court has recognized in considering death penalty appeals. Indeed, the report notes that in a recent decision, the Supreme Court reversed a death sentence in part because the defense attorney failed to comply with ABA standards regarding "investigation and presentation" of mitigating evidence during the trial's penalty phase. "Noncompliance with the FDA is even more alarming," reads the report, "when viewed in light of the fact that the FDA itself falls far short of reasonable national norms for capital trial representation, as articulated by the ABA."