Law: February 2007

Sunday, February 18, 2007

John Thomas Hubert, were you ethically obligated to present unreliable and misleading evidence to a jury?

Actuary "Ezekial 25:17 - The path of the righteous man is beset on all sides by the inequites of the selfish and the tyranny of evil men. Blessed is he that shepherds the weak from the valley of darkness for he is truly his brother's keeper, and the finder of lost children. And I will strike down upon thee with great vengeance and furious anger those who attempt to poison and destroy my brothers, and you will know my name is the Lord when I lay my vengeance upon thee."

THE ETHICS OF EVIDENCE
J. Alexander Tanford
25 Am. J. Trial Advocacy 487 (2002)
[footnotes omitted and text editted]

I. INTRODUCTION

In my first trial as a 26-year-old Assistant District Attorney in Manhattan, I prosecuted a nefarious criminal charged with commercial burglary -- breaking into a warehouse at night. It is rare that anyone is caught for such a crime, but in this case, a passing police officer happened to see the perpetrator climbing out of a broken store front window with two fur coats in his hands while the burglar alarm blared. Commercial burglary is not a serious crime in New York, so the defendant had been out on bail for two years when the case went to trial. However, despite the passage of time and the defense attorney's best efforts to make this hoodlum presentable, my witnesses calmly and confidently identified the young man sitting next to his attorney as the "perp."

All was going well, until the close of the People's case. The defense attorney stood up and moved for a directed verdict on the ground that no witness had identified the defendant as the burglar. I was confused. Hadn't two witnesses identified him from the stand? The defense attorney smiled. My witnesses had identified a fellow public defender from the Legal Aid office who was the person sitting at counsel table. The actual defendant was sitting in the middle of the audience. I'd been duped! The judge looked at me and offered some kindly advice that I dismiss the case, because even if he denied the motion, the jury would never convict after the misidentification.

A few years later, as I began to teach and write about evidence and trial practice, I realized that the defense attorney had deliberately created false evidence. He had not suborned perjury, of course. Suborning perjury was wrong. He had merely set the stage for inevitable false testimony because he knew that my witnesses would assume that whoever was sitting at counsel table was the defendant, and would therefore identify the wrong man. His conduct had caused a miscarriage of justice, allowing a criminal who had been caught red-handed to go free to prey again upon the unsuspecting warehouses of New York. Surely this passive involvement in creating false evidence was just as unethical as active subornation of perjury. I started including a hypothetical in my classes based on this experience.

Recently, there has been substantial publicity about DNA tests showing that lots of people who were convicted for crimes were actually innocent, despite the fact that they had been confidently identified by eyewitnesses. This has caused me to revisit that small New York courtroom 25 years ago and wonder about my own role. In trial after trial as an Assistant District Attorney, I asked countless witnesses to "look around the courtroom" and see if they could identify the person who attacked, robbed, raped or sold drugs to them. However much defense attorneys tried to alter their clients' appearances, my witnesses unhesitatingly pointed them out. Was it because they really remembered the faces of the perpetrators, or were they just pointing out whoever was sitting at counsel table? I, too, had undoubtedly participated in the creation of false evidence, although it was so commonplace that I never thought about it at the time. Could such routine courtroom testimony actually be unethical?

Although the presentation of false, misleading or unreliable evidence would seem to be a core concern of those who worry about our litigation system, the ethics of evidence has been written about infrequently. In the small body of literature that does exist, the focus tends to be limited to the relatively easy problem of whether the Model Rules of Professional Conduct (or their predecessor, the Model Code of Professional Responsibility) prohibit an attorney from creating or using perjured and other kinds of false evidence. The ethics of dubious evidence is rarely addressed. By treating ethics as an issue only of what the rules say about the knowing use of false evidence, the literature ignores the more complex and common ethical issues concerning the use of evidence that is misleading, incomplete, or unreliable. This Article will attempt to fill some of that gap.

II. ETHICS AS PRINCIPLES RATHER THAN RULES

Most writings on the ethics of evidence approach the issue as an analysis of rules. They parse the text of the Model Rules, engage in statutory interpretation, and pose questions of ethics solely in terms of whether an attorney is likely to be successfully disciplined. Given the relative failure of the bar to police itself and the extreme unlikeliness that an attorney will be disciplined, this seems a poor way of approaching an issue of ethics.

Ethics are not rules, of course. They are moral principles that guide our lives as attorneys. The decisions we have to make in litigation are too variable and complex to be reduced to rules. The Model Rules may be the "law for lawyers," clearly defining the circumstances under which we can be found guilty of improper conduct and disbarred, but they are not coextensive with the concept of legal ethics. If we are to live lives as ethical litigators, we must make decisions concerning evidence based on more than the Model Rules -- we must (and do) rely on our experience, judgment, tradition, moral ideals, and character guided by moral principles that are supposed to push us in the direction of good lawyering.

The problem with thinking of ethics as rules arises most clearly when the Model Rules do not explicitly prohibit a proposed course of questionable conduct. In one memorable case in my early years, I prosecuted a 50-year-old prostitute for robbery after she hit one of her johns over the head with a lamp and stole his wallet. Before trial, the defense attorney had gotten her a part-time job at the New York Public Library as part of a drug-rehabilitation program. At trial, she showed up wearing a brown tweed suit, with her graying hair in a bun, took the stand and testified that she was a librarian. The jury looked at me like I was insane for accusing this nice old lady of being a prostitute. There is no ethical rule governing misleading clothing, nor getting a client a last-minute job, nor telling them to wash the dye out of their hair and look their age.

In the absence of broader ethical principles, lawyers are drawn to the position that anything that might increase their chances of winning that is not expressly prohibited, is permitted -- even required.

Conceptualizing the ethics of evidence as merely an exercise in the interpretation of rules also stifles discussion of the hard questions. False evidence is an easy issue. Questions about the propriety of misleading, incomplete and unreliable evidence are harder. If we limit ourselves to rule-thinking, we may end up saying vaguely that "[t]here is no Model Rules provision that expressly proscribes trickery" [William H. Fortune et al., Modern Litigation and Professional Responsibility Handbook 393-94 (1996)], other than the rule against knowing use of false evidence and proceeding no further. We can do a better job of thinking about the ethics of evidence.

III. THE FOCUS ON FALSE EVIDENCE IS TOO LIMITED

Because commentators approach the ethics of evidence as a question of rules, they usually frame the discussion in terms of its one clear rule: an attorney may not create, use or rely on evidence the attorney knows to be false. The Model Rules explicitly prohibit knowingly using false evidence. Rule 3.3 states that "A lawyer shall not knowingly [m]ake a false statement of material fact or law to a tribunal [or o]ffer evidence that the lawyer knows to be false." What is there to talk about -- exceptions to the rule? That is indeed the unlikely direction in which the literature runs. Are exceptions that permit a lawyer to use false evidence ethically?

Mostly, the literature is full of epistemological essays on when a lawyer "knows" that evidence is false. Is a little knowledge enough, or must the lawyer know falsity beyond a reasonable doubt? Can lawyers, like ostriches, hide their heads in the sand to avoid knowing something? To the extent that the literature touches on evidence that is not false, but merely misleading or unreliable, it simply points out that such evidence is not known to be false, so using it will not violate Rule 3.3. Lawyers are free to subvert justice to their hearts' content as long as they can tell the disciplinary commission with a straight face that they did not actually "know" the evidence was false. So far so good, if somewhat banal.

But now a problem arises. The false-evidence rule addresses when a lawyer cannot use evidence, or when the lawyer might be sanctioned, but does not give any positive guidance for the ethical use of evidence. The false-evidence rule literature assumes a dichotomous ethical universe in which whatever is not expressly prohibited must be permitted. Obviously, no rule says this, and it is a somewhat uncomfortable result to reach. Therefore, the discussions generally articulate an implicit rule requiring all non-false evidence to be presented, which they derive from the principle of zealous representation.

At times the discussion takes on a distinctly Orwellian tone, in which "knowing" and "false evidence" are given so narrow a meaning that nothing is known to be false, and zealous advocacy is given so broad a meaning that everything dishonest and deceitful is made mandatory. For example, one author posed the question, "What does an attorney really 'know'" about her client's intent to give false testimony, and then answered it as follows:

"[T]he question is a hard one, and requires that the attorney use "extreme caution" in answering. The reason is that suspicion of fraud is usually raised by the receipt of conflicting information, either from the client or in tandem from another party. This conflict alone does not appear to constitute "knowing," because "mere suspicion" is not enough to establish a possible client fraud; nor is "a mere inconsistency in the client's story sufficient in and of itself to support the conclusion" that he will commit a fraud on the tribunal. So what constitutes "knowing"? Although one court stated that an attorney should know, based upon her professional experience, if the client's representations are false, not all courts have not taken such a liberal view. For example, in United States v. Long, the Court of Appeals for the Eighth Circuit said only "a clear expression of intent," evidenced by "a client's announced plans" to commit fraud will constitute the level of knowledge required before an attorney may reveal a client confidence. The Second Circuit went even further in Doe v. Federal Grievance Committee ... [and] insisted upon a "clearly established" or "actual knowledge" standard, which is met "when the client acknowledges to the attorney that he has perpetrated a fraud upon a tribunal." .... Indeed, an attorney who, relying on suspicions or inconsistencies, prematurely jumps to the conclusion that her client is going to commit a fraud and discloses such to the tribunal may be liable for breaching her ethical duty to maintain her client's confidences and secrets.... When an attorney unnecessarily discloses the confidences of her client, she creates a chilling effect which inhibits the mutual trust and independence necessary to effective representation..... [A]sking the attorney to assemble and weigh the facts so that she may "know" if her client is committing a fraud is asking her to play judge and jury, a role that clearly does not belong to her. If the attorney does not "know for sure" that the evidence is false, she should present it; and, as long as the client does not admit that his story is false, even though "one knows in [one's] heart of hearts" that it is false. [Horgan, 29 New Eng. Law Rev. 795 (1995)"

To the extent that the literature has addressed a lawyer's affirmative obligations, it has generally assumed that there is no ethical principle relating specifically to evidence. The authors then fall back on the lawyer's general duties of client loyalty and zealous representation within the bounds of law. The problem is that neither of these principles says anything about using misleading, unreliable or incomplete evidence. Arguments that a lawyer is required to mislead a jury out of loyalty to a client, or that deliberate evidentiary deception constitutes zealous advocacy within the bounds of law, are unpersuasive. One should be able to be loyal to a client, a zealous advocate, and an ethical attorney without defrauding the jury. Is there really no ethical principle guiding a lawyer's decisions to use evidence?

A fair reading of the Model Rules cannot possibly produce the conclusion that the overriding ethical principle of litigation is "anything goes." A lawyer is not given carte blanche to ask trick questions, present unreliable or misleading evidence, and make any argument however deceitful, in the name of client loyalty and zealous advocacy. As one court stated, just before suspending an attorney: "Attorneys must 'possess a certain set of traits--honesty and truthfulness, trustworthiness and reliability, and a professional commitment to the judicial process and the administration of justice.'"

The Model Rules themselves place clear limits on this principle. They do not demand unrestrained zealous advocacy designed to win at all costs, but zealous advocacy within the bounds of law. Within even that more limited duty, there are perfectly clear ethical limits set by Rule 8.4 (c): "It is professional misconduct for a lawyer to ... engage in conduct involving dishonesty, fraud, deceit or misrepresentation."

This duty is further constrained by Model Rule 3.3(c), which says a lawyer should "refuse to offer evidence that the lawyer reasonably believes is false." Ethical Considerations promulgated under the superseded Model Code of Professional Conduct reminded lawyers they were supposed to avoid bringing about unjust results or inflicting needless harm on others. Lawyers owe a duty to the system of justice to utilize procedures that command public confidence and respect. Model Rule 3.4 (e) provides: "A lawyer shall not in trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence."

Taken together, these statements reflect an ethic quite different from the amoral proposition that an advocate's primary duty is to win the case for the client, constrained only by the prohibition against using knowingly false evidence. They direct an advocate to act in good faith, to abide by rules of evidence and procedure, to avoid conduct that will deceive a jury, and to limit the use of evidence to that which the advocate reasonably believes is accurate. A lawyer is not obliged or even permitted to mislead the jury with unreliable and incomplete evidence, but must have a good faith basis for that evidence before presenting it in the first place.

IV. THE GOOD-FAITH PRINCIPLE

The good-faith principle goes beyond prohibiting the use of false evidence, and guides an advocate's conduct with respect to dubious evidence which the lawyer does not know for certain is false. The lawyer may only use or refer to evidence if the lawyer has a good-faith basis to believe that it represents the best recollection of a witness, and can be presented in accordance with the rules of evidence and procedure. This is a two-part standard under which an advocate must have both a factual and a legal basis for alluding to, asking about, offering, or relying on particular evidence. To have a good-faith factual basis, the attorney must have both a subjective belief that evidence represents the true recollection of a witness, and objective support for that belief, such as a deposition, statement, report, or interview notes. To have a legal basis, the attorney must have a reasonable legal argument that it is admissible under the rules of evidence and procedure.

A. FACTUAL BASIS

An attorney must have a factual basis for alluding to, offering, or relying on evidence at trial. That factual basis may not be wishful thinking. There are two requirements for a factual basis -- an attorney's subjective belief, and objective evidence to support that belief. The attorney's investigation and discovery must show a likelihood that a witness exists who believes that evidence to be true, could be called to testify to it, and would in fact testify to it. Under this principle, an ethical advocate will not mention dubious evidence in opening statement, will not attempt to present evidence believed to be inaccurate, will not ask a leading question that includes an unsupported factual suggestion, and will not incorporate into closing argument "surprise" misstatements and overstatements by witnesses that make the case seem more favorable than it is. By requiring both a subjective and objective factual basis, we avoid the superficial argument that because lawyers can never really "know" whether evidence is true or false, there are no ethical impediments to introducing dubious evidence regardless of objective indications of its unreliability.

First, an attorney must have a subjective belief that proposed evidence reflects the genuine recollection of a witness and is not a fabrication. This is not the same thing as whether the attorney personally believes the evidence is true. I once defended a man who was caught shoplifting food who claimed to be a field operative for the C.I.A. on a training mission to see if he could survive in a strange city for a month with no money and no identification. He wanted me to inform the judge that a conviction would jeopardize his security clearance. He stuck to this story despite my skepticism. I called the CIA to explain the situation and ask if they could verify his claim, but of course they denied any knowledge of this guy. Did I personally believe his story? No. Did I believe that my client genuinely thought he was in the CIA? Yes, although I also thought he was crazy.

Second, an attorney must have an objective basis for his or her decision to allude to evidence in opening statement or attempt to elicit it from a witness. Wishful thinking, intuition and impressions based on demeanor are not adequate to justify using or alluding to evidence. The attorney must be able to point to documents, statements, records, or depositions that indicate that an identifiable witness exists who has stated in the past that a particular fact is true, could be called to testify, and has been reasonably consistent in his or her assertions. Unrecorded statements from your client made during interviews satisfy the objective basis test, even though they may be unrecorded and confidential. The requirement of an objective basis is not for the purposes of proving to a court or disciplinary committee that one was acting in good faith, but is required for an advocate's own ethical judgment. Thus, confidential information gained from the client or through the attorney's work-product can supply that objective basis. Once a witness has in fact testified to something, the trial testimony itself supplies the objective, although not the subjective, basis for relying on the evidence in closing argument.

Third, the attorney must have a basis for believing the witness will actually show up in court and testify to their recollections. It is not enough that your client assures you his friends will show up, or that your opponent has put someone's name on their witness list. The attorney must satisfy him- or herself that the witness will actually testify. Serving a subpoena on a witness or obtaining the witness's firm promise to attend is usually adequate, although there may be circumstances where mere service of a subpoena is not enough. In the movie "Suspect," the defense attorney has a private investigator track down a homeless man with no fixed address whom she believes can supply her client with an alibi. The witness stabs the investigator, throws away the subpoena, and disappears into the night. The judge correctly cautions the attorney not to mention this missing witness to the jury because in all likelihood he will never be found.

B. LEGAL BASIS

The admissibility of evidence is controlled by rules of evidence and procedure. It is therefore obvious that an attorney must also have a legal basis for asking a question or offering evidence. He or she must have a reasonable belief that the evidence is admissible.

A lawyer should not attempt to get before the jury evidence which is improper. In all cases in which a lawyer has any doubt about the propriety of any disclosures to the jury, a request should be made for leave to approach the bench and obtain a ruling out of the jury's hearing, either by propounding the question and obtaining a ruling or by making an offer of proof.

For example, it would violate this principle to ask a witness if he or she has been convicted of drunk driving (even if true) because the rules of evidence limit impeachment to felonies and crimes of dishonesty. It would also violate this principle to ask a question alluding to inadmissible evidence and then "withdraw" it if the other side objects. As one court put it, it is improper for an attorney to ask a question "which he knows and every judge and lawyer knows to be wholly inadmissible and wrong."

This is a principle guiding an attorney's decision to attempt to introduce evidence. The ethics of offering evidence depend on an attorney's legal analysis prior to the offer, not on what happens afterwards. It is unethical to offer evidence believed to be inadmissible on the off chance that your opponent will not object or the judge will rule unexpectedly in your favor. This principle can also work in your favor. It is not unethical to have attempted to introduce evidence you thought was admissible just because an objection was sustained. Lawyers and judges will frequently have legitimate disagreements on the admissibility of evidence.

This part of the good-faith principle similarly should have both a subjective and objective component. The attorney must be able to point to a rule of evidence that plausibly supports the item's admissibility, and also have a subjective belief that the evidence properly be admitted under that rule.

V. ARE THERE DIFFERENT ETHICAL STANDARDS FOR CRIMINAL DEFENSE ATTORNEYS?

A number of commentators suggest that a criminal defense attorney is held to a lower ethical standard than other attorneys. Much of the discussion of whether a lawyer has a duty of zealous loyalty to a client that permits the ethical use of misleading, unreliable or false evidence focuses on the representation of criminal defendants. Prosecutors and civil lawyers are either ignored or distinguished from criminal defense attorneys. For example, Fortune, Underwood and Imwinkelried summarize the conflicting opinions about whether it is unethical for a lawyer to call witnesses for the purpose of creating a false impression as follows: "Perhaps the best that can be said is that a criminal defense lawyer may call the witnesses, a prosecutor may not, and civil lawyers should not." The suggestion of a different standard for criminal defense attorneys is implausible. There is certainly no general ethical principle permitting attorneys to practice deception, fraud, and trickery in order to further the important social goal of returning violent criminals to the streets regardless of guilt. Nor does a criminal defense exemption exist in the Model Rules. The provisions concerning the duty to investigate, confining one's zealotry to the bounds of law, the prohibition against false evidence, declining representation that would result in a violation of law or other fraud, exercising independent judgment that includes moral factors and acting good faith make no distinction between criminal and civil cases.

Then where does the claim come from? Selinger believes its proponents derive the claim of special rules for criminal defendants from the burden of proof. "The argument would be that [making the prosecution overcome false evidence] is just another legitimate way of putting the prosecution to its proof -- of making sure that the prosecution is not getting into a dangerous-to-the-innocent habit of bringing criminal charges on weak evidence -- which a defense lawyer is clearly permitted to do, under Model Rule 3.1, even on behalf of an admittedly guilty client."

The problem is that false evidence does no such thing. It does not simply put the prosecution to its proof. It is one thing to attack a weak government case by pointing out its weakness. It is another to attack a strong government case by confusing the jury with falsehoods.

The claim of a special rule for criminal lawyers also is sometimes tied to the defendant's constitutional right to the effective assistance of counsel. For example, Horgan argues that criminal defense attorneys are specially exempt from the rule requiring that attorneys disclose fraudulent evidence:

"[T]rust between attorney and client ... is the "cornerstone of the adversary system and effective assistance of counsel." A client... is unlikely to divulge all the information necessary for his defense if he feels that the attorney would violate the attorney-client privilege and pass the information on.... If the client withholds information, the truth cannot be ascertained, nor can the attorney fulfill her duty of candor to the court. This creates a catch-22. A client can fall into one of three categories: (1) one about whom the attorney has no suspicions; (2) one whom the attorney suspects of fraud; or (3) one whom has admitted his fraudulent intent (or it has been conclusively proven). If nondisclosure is not afforded to a client in the third group, a client in second group would be reticent to come forward with exculpatory facts that, although true, cannot be substantiated because of the client's fear that he may move into the third group and lose the protection of nondisclosure. If nondisclosure is not afforded to the second group, the same fear would hold true for a client in the first group. Therefore, nondisclosure can only serve its intended purpose if it is extended to all three groups."

An attorney trying to uncover suspected client fraud can do so "only if the client trusts the lawyer with information that might be embarrassing or incriminating." If the client knows the attorney has a duty of disclosure, that trust will never develop; therefore, the attorney may not gain the information necessary to uncover the fraud. Disclosure may also "prejudice the defendant in the very matter in which the lawyer is employed to defend him." Admittedly, it is hard to have sympathy for a client who is actually guilty of perpetrating a fraud on the court; but if the attorney's suspicions turn out to be wrong and the client is not guilty of fraud, the harm to the client may be irreparable. This is a risk too great to take.

Such commentators are defining effective assistance as helping a criminal defendant gain an acquittal, even if the accused committed the crime. Therefore, the lawyer must be allowed to whatever is necessary to get his guilty client acquitted. This is a distortion of the right to counsel. Nothing in the language concerning effective assistance of counsel to suggest that effectiveness is measured solely in terms of whether the defendant is acquitted, nor does a defendant have a right to an acquittal regardless of guilt. The argument of a special obligation for defense attorneys to assist their clients in presenting perjured testimony misperceives the professional advocate's function. "[D]efense counsel's paramount duty [to his client] must be met in conjunction with, rather than in opposition to, other professional obligations. Counsel does have an "obligation to defend with all his skill and energy, but he also has moral and ethical obligations to the court, embodied in the canons of ethics of the profession." The ethical strictures under which an attorney acts forbid him to tender evidence or make statements which he knows to be false as a matter of fact. His activities on behalf of his client are circumscribed by the principles and traditions of the profession and may not include advancing known false testimony in an effort to win his client's cause. It is clear [in this case] that counsel felt, based on his trial preparation, that the eleventh-hour change in appellant's story would result in his client's testifying falsely. Confronted with such a realization, counsel's obligation to both his client and the court is to use "all honorable means to see that justice is done," rather than to go to any lengths in an effort to see that a defendant is acquitted."

VI. THE ETHICS OF EVIDENCE UNDER THE GOOD-FAITH PRINCIPLE

A. FALSE EVIDENCE

1. DISCOVERING FALSE EVIDENCE BEFORE TRIAL

Although it is rare for attorneys to personally create false evidence, it is common for them to be presented with false evidence created by others. A party to an action may fabricate favorable evidence to improve the chances of winning. Family and friends may provide false alibis. A battered woman may falsely recant her statement that her boyfriend has beaten her. These situations also seem easy cases. It is unethical for an attorney to present false evidence. Whether the attorney has personally created it it is irrelevant. A "lawyer shall not knowingly offer evidence the lawyer knows to be false" regardless of the source of that evidence. Lawyers cannot present false and perjured evidence.

For some reason, however, some commentators seem to have a hard time with this basic ethical principle when it is a client who has created the false evidence and wants the lawyer to present it. A few have taken the lawyer-as-whore position, and argued that the lawyer must go along with a client's decision to commit perjury, and must present that false evidence at trial. For example, Liskov argues that the general principle in Model Rule 1.2(a) that "the lawyer shall abide by the client's decision... whether the client will testify" extends to a client's decision to testify falsely, despite other language in Rule 1.2(d) forbidding the lawyer to "assist a client in conduct the lawyer knows is criminal or fraudulent."

The best known proponent of this view is Monroe Freedman. He has argued that if a client cannot be dissuaded from committing perjury, the lawyer should go ahead and elicit the false testimony and rely on it in closing argument. Freedman rests his argument on the lawyer's duty of loyalty to the client, but in the process reduces that duty from a professional one to that of co-conspirator and criminal accomplice.

It has also been suggested that the lawyer has an obligation to present false and perjured evidence because the client has a "right to testify." Of course, there is no such right. The client, like every witness, only has the right to testify in ways consistent with the rules of evidence and procedure, and has no right to provide testimony in violation of those rules. Rules 601-03 restrict witnesses to testifying under oath which requires that they tell the truth. There is no "right" to testify falsely.

These attempts to justify a lawyer's limited use of false evidence when it has been created by the client are indefensible. There is no exception in the Model Rules for false evidence created by a client, and no suggestion that the lawyer must suddenly abandon his or her personal moral judgment. To the contrary, the ethical principles make clear that an attorney is not simply the client's mouthpiece. The preamble to the Model Rules is explicit:

Many of the lawyer's professional responsibilities are prescribed in the Model Rules of Professional Conduct, as well as substantive and procedural law. However, a lawyer is also guided by personal conscience and the approbation of professional peers..... A lawyer's responsibilities as a representative of clients, an officer of the legal system and a public citizen are usually harmonious.... In the nature of law practice, however, conflicting responsibilities are encountered. Virtually all difficult ethical problems arise from conflict between a lawyer's responsibilities to clients, to the legal system, and to the lawyer's own interest in remaining an upright person.... Such issues must be resolved through the exercise of sensitive professional and moral judgment guided by the basic principles underlying the Rules.

The Supreme Court has also been explicit. The lawyer's role is that of a professional who agrees only to fight for the client within the bounds of the law and ethics. "Although counsel must take all reasonable lawful means to attain the objectives of the client, counsel is precluded from taking steps or in any way assisting the client in presenting false evidence or otherwise violating the law. This principle has consistently been recognized in most unequivocal terms by expositors of the norms of professional conduct since the first Canons of Professional Ethics were adopted by the American Bar Association in 1908. .... These principles have been carried through to contemporary codifications of an attorney's professional responsibility. ... Both the Model Code of Professional Responsibility and the Model Rules of Professional Conduct ... do not merely authorize disclosure by counsel of client perjury; they require such disclosure. [U]nder no circumstance may a lawyer either advocate or passively tolerate a client's giving false testimony. This, of course, is consistent with the governance of trial conduct in what we have long called "a search for truth." The suggestion sometimes made that "a lawyer must believe his client, not judge him" in no sense means a lawyer can honorably be a party to or in any way give aid to presenting known perjury." [Nix v. Whiteside, 475 U.S. 157, 166-67 (1986)]

If a client creates a phony receipt, the attorney may not offer it. If a witness offers to lie and create an alibi, the lawyer may not call that person. If a client is going to lie from one end of his testimony to the other, the lawyer must keep him off the stand. At least as an abstract proposition, these principles are ethically indisputable.

But what if the issue is small fabrications rather than major ones. What if a client intends to testify truthfully most of the time, but will insert one or two pieces of false testimony here and there to strengthen the case? The attorney cannot overreact and refuse to present the truthful evidence in order to keep the false evidence out of the trial. Even if the attorney tries to dissuade the client from committing perjury, and carefully steers around the false evidence on direct examination, the attorney has no real control over whether the client blurts out the false testimony anyway, or the topic is raised on cross-examination. To analyze an attorney's ethical obligation under this circumstance requires that it be divided into two different issues. What must the attorney do before the fact, and what must the attorney do after the fact?

If an attorney learns of a client's or other witness's intent to commit partial perjury before trial, the lawyer's first duty is to try to dissuade that person from giving the false testimony. The attorney should point out that exaggerations and small lies are easily exposed on cross-examination and easily detected by the jury. False favorable testimony therefore will end up hurting rather than helping. In addition, perjury is a crime that can be separately prosecuted, or considered by the judge as an aggravating circumstance at time of sentencing.

If the attorney cannot get a client to agree not to tell small lies, the attorney's second duty is to seek to withdraw from representation. Withdrawal would seem to be required under Model Rule 1.16(a)(1), because continued representation "will result in violation of the rules of professional conduct or other law," although it is not so universally recognized as dissuasion. Some commentators have criticized the withdrawal approach as serving no functional purpose because the new attorney will face the same issue. In criminal cases, withdrawal might not work because most defendants are represented by public defenders or assigned counsel who will probably not be permitted to withdraw. Withdrawal also may implicate other ethical principles, for example, if the case is so close to trial that a lawyer cannot ethically withdraw without jeopardizing the client's case. Withdrawal would also seem an inappropriate response if it is a witness, rather than the client, who plans to exaggerate.

If withdrawal is refused or inappropriate, the attorney should attempt to steer the direct examination around the false testimony. This may not solve the problem, however. Despite the attorney's best efforts, the client may give the false testimony anyway -- slipping it in on direct, or volunteering it during cross-examination. In these situations, the attorney is not relieved of ethical obligation just because they attorney has not intentionally used false evidence. The false evidence is there in front of the jury, and the lawyer must do something about it.

2. DISCOVERING FALSE EVIDENCE AFTER THE FACT

When I was an assistant district attorney in New York, I prosecuted a case in which the victim told police he had been robbed of two hundred dollars. Shortly before trial, he discovered the existence of the Victim's Compensation Fund. When I asked him at trial how much money had been taken from him, he smiled and said, "Two thousand dollars." Despite the good faith of an attorney, false testimony happens.

When an attorney discovers that false evidence has been presented to the court, the attorney is required to take remedial action even though it is not the attorney's fault. Model Rule 3.3 (a)(4) states: "If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall take reasonable remedial measures."

Despite this clear statement in the Model Rules, some commentators have argued that a lawyer is not obligated to take remedial action if the false evidence came from the client. Several justifications are offered; none is persuasive. Horgan suggests that taking remedial action would violate the attorney-client privilege and have a chilling effect on the attorney-client relationship, so an attorney should do nothing. The problem is that presenting false evidence is perjury, and the attorney-client privilege does not apply to crimes and frauds. Liskov argues that even if there is no privilege, taking remedial action would violate the requirement in Model Rule 1.6 that "a lawyer shall not reveal information relating to representation of a client unless the client consents." However, the commentary says that the rule does not apply when the client engages in conduct such as perjury that is criminal or fraudulent. Freedman suggests that acting against a client's wishes violates the right to counsel. The Supreme Court, however, has ruled to the contrary that a defendants "have no "right" to insist on counsel's assistance or silence. [Nix v. Whiteside, 475 U.S. at 172.] The arguments are belied by the clear requirement that remedial action is mandatory.

Model Rule 3.3 does not say what form that remedial action must take, and there is some debate about it. The preferred remedies for false evidence discovered before trial -- dissuasion and withdrawal -- are technically available for after-the-fact discoveries, but may not be realistic. The lawyer could ask for a recess, woodshed the client, and seek to persuade him or her to withdraw the false evidence. The only problem is that judges are not generally inclined to permit attorneys to interrupt their direct examinations in order to hold a quick coaching session with their clients on what to say next, although this would appear to be a "critical stage" of the proceedings at which the client has a right to counsel. An attorney could also ask to withdraw in the middle of a trial, but it is inconceivable that a judge would permit it. It also would seem to violate Model Rule 1.16(b)'s prohibition against withdrawal under conditions that would have a "material adverse effect" on the client.

The presumptive remedy would seem to be disclosure. Model Rule 3.3(a)(2) requires that a lawyer must "disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client." Perjury and presenting false evidence are criminal and fraudulent acts. Dissuasion and withdrawal are unlikely to be adequate, so the disclosure becomes "necessary." The commentary explains: "[T]he rule generally recognized is that, if necessary to rectify the situation, an advocate must disclose the existence of the client's deception to the court or to the other party. Such a disclosure can result in grave consequences to the client, including not only a sense of betrayal but also loss of the case and perhaps a prosecution for perjury. But the alternative is that the lawyer cooperate in deceiving the court, thereby subverting the truth-finding process which the adversary system is designed to implement."

Although the Commentary cautions that it "has been intensely debated" whether the requirement of remedial action applies in criminal cases, it does not take the position that the requirement is in fact ethically debatable. To the contrary, the commentary rejects the suggestion "that the advocate be entirely excused from the duty to reveal he perjury if the perjury is that of the [criminal] client" because it would makes the attorney a knowing instrument of perjury. If dissuasion has not worked, "the advocate should make disclosure to the court." The disclosure requirement is not optional; it is mandatory and applies in criminal cases as well as civil.

B. INADMISSIBLE EVIDENCE

One part of the good-faith basis principle is that an attorney must have a legal basis for offering evidence. The attorney must be able to point to a rule of evidence that plausibly supports the item's admissibility, and also have a subjective belief that the evidence properly be admitted under that rule. To offer inadmissible evidence is therefore unethical.

The ethical prohibition against trying to slip in inadmissible evidence seems fairly clear under the Model Rules, though it is not stated explicitly. Model Rule 3.4 (c) states that a lawyer shall not "knowingly disobey an obligation under the rules of a tribunal," and the rules of a tribunal include its evidence rules. Offering evidence that is inadmissible would seem to be knowingly disobeying court rules, as would asking an improper question and then withdrawing it if there is an objection. Rule 3.4(e) states that a lawyer shall not "in trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will be supported by admissible evidence." This means more than just that a lawyer may not mention inadmissible evidence in opening statement. An attempt to offer it or get it before the jury would seem also to fall within the idea of an allusion to inadmissible evidence.

A lawyer should not attempt to get before the jury evidence which is improper. In all cases in which a lawyer has any doubt about the propriety of any disclosures to the jury, a request should be made for leave to approach the bench and obtain a ruling out of the jury's hearing, either by propounding the question and obtaining a ruling or by making an offer of proof.

An argument can be made that it is not the attorney's duty in the adversary system to anticipate the opponent's objections and the judge's rulings. The argument runs like this: Judges are given broad discretion to rule on the admissibility of evidence, so they might allow evidence the attorney thinks is inadmissible. Evidence not objected to is entitled to consideration by the jury, and an attorney does not know if the opponent will object. Therefore, an attorney never "knows" for sure whether evidence will be ruled admissible or inadmissible. This view may be compatible with the approach that the attorney must do everything possible for a client except present false evidence, but it cannot be squared with the good-faith principle. The attorney is offering evidence without a good-faith basis regardless of whether the opponent is competent enough to object or the judge will rule correctly.

The one aspect of the inadmissible-evidence problem that has received some attention in the ethics literature is the "side show." A side show is a non-evidentiary visual display staged for the jurors' benefit that is intended to have an influence on the jurors without ever find its way into evidence. The examples of this problem are drawn mostly from the past, so it is not clear whether this is a genuine problem today. Fortune and Underwood collected the following examples:

a. In a personal injury case in which plaintiff lost a leg, plaintiff's lawyer left an L-shaped package wrapped in butcher paper on counsel table throughout trial.

b. In a case brought by a widower for the wrongful death of his wife, the defendant's lawyer arranged for an attractive young woman to pretend to be the plaintiff's new girlfriend, sit near him during trial, and occasionally lean over and ask him innocuous questions, and touch him gently.

c. Defense counsel arranged for a look-alike to don the defendant's clothes and sit in the defendant's place, while the real defendant sat in the back of the courtroom. This caused several eyewitnesses to misidentify the accused.

c. In a criminal case in front of a predominantly African-American jury, the defense attorney arranged to have boxing champion Joe Louis walk into the courtroom in full view of the jury and shake his client's hand.

Such displays are not just clever courtroom advocacy, nor are they excusable because they do not rise to the level of presenting false evidence. They are unethical violations of the good-faith principle because the attorney has no legal basis for staging a side show. It is improper under rules of procedure and evidence.

I am concerned not only with evidence that violates the substantive rules of evidence because it is irrelevant, unauthenticated, hearsay, and so forth, but also violations of the procedural rules for introducing evidence. Procedural rules govern the proper form of the questions and answers that make up the examinations. The best known is the rule against asking leading questions on direct examination, but other rules preclude repetitive interrogation and questions that are argumentative, assume facts not in evidence, or misstate the evidence.

Despite these procedural rules, attorneys frequently ask improper questions or make improper rhetorical comments, especially during cross-examination.

[See examples on pp. 292-94 of textbook}

The intentional asking of improper questions for rhetorical purposes seems also to contravene the good-faith basis principle. The attorney lacks a reasonable belief that the question as asked is proper, and is therefore violating an established rule of the tribunal. Overly aggressive cross-examination that intimidates, browbeats or harasses a witness is also unethical.

Closely related to the rhetorical question is the rhetorical objection, also known as a "speaking objection." Under the customary rules of evidence, attorneys may state the legal basis for an objection within the hearing of the jury, but must make any extended argument outside the jury's hearing. This rule is routinely tested by attorneys who make "speaking objections" containing short arguments or summaries of evidence aimed at the jury. In most instances, speaking objections are clear, intentional violations of customary objection procedure, and therefore unethical. For example:

Q. What did you see next?
A. I saw a blue car drive by that looked like the defendant's car.
Defense: Objection, irrelevant and prejudicial. We've already established that the defendant was home with his mother, so it couldn't have been his car the witness saw.

Not all speaking objections are clearly unethical, however. For example, an attorney might object to the opinion of a medical expert by saying:

"This opinion is unreliable because it is based solely on the self-serving complaints of the plaintiff, made after his lawyer told him he would need an expert to testify for him."

Does this objection violate the good-faith principle because it is deliberately argumentative, or is it merely a restatement of Fed. R. Evid. 703's requirement that the facts or data used by an expert must be shown to be reasonably reliable? Keeton suggests the following solution:

Using a frivolous objection as a vehicle for expressing some argument to the jury is a practice condemned both by rules of procedure and by professional standards. On the other hand, expressing serious objections in a manner calculated to appeal to the jury as well as the court is generally regarded as a proper practice, and clearly it is proper to give attention to phrasing objections in such a way as to avoid causing an affirmatively adverse reaction by jurors. [However, if the argumentative part of the objection is overemphasized,] your statement is subject to the same criticism as a frivolous objection used for making an argument. The distinction is primarily one of degree, and great differences of opinion exist regarding such practices.

C. DUBIOUS EVIDENCE

The problem of misleading, unreliable and incomplete evidence is hard -- it is neither false nor inadmissible. What happens if an attorney by selective use of evidence, trickery, and half-truths, uses true evidence to create a false impression? This issue has been discussed at length in analysis of Monroe Freedman's question, "Is it proper to discredit a witness whom you know to be telling the truth?."

"our client has been ... accused of a robbery committed at 16th and P Streets at 11:00 p.m. He tells you [he was in the vicinity] at 10:55 that evening, but that he was walking east, away from the scene of the crime, and that, by 11:00 p.m., he was six blocks away. At the trial, [the prosecution calls] an elderly woman who is somewhat nervous and who wears glasses. She testifies truthfully and accurately that she saw your client at 15th and P Streets at 10:55 p.m."

Can you attempt to destroy the witness's credibility through cross-examination designed to show that she is easily confused and has poor eyesight, to mislead the jury and create the false impression that she is mistaken in her identification?

The problem is not confined to cross-examination, of course. Misleading evidence that creates a false impressions may be also be offered on direct examination. For example, extending Freedman's hypothetical, suppose the day of the crime was June 1, but the elderly witness mistakenly testifies the crime took place on June 2. Your client has admitted to you that he committed the crime on June 1, but has an airtight alibi for June 2. May an attorney in addition to vigorously cross-examine the witness about her failing eyesight, present truthful testimony of the client's alibi on June 2? None of the evidence is false, but it misleads the jury and is almost certainly going to lead to an unjustified acquittal of the armed robber.

Freedman thinks there is nothing unethical about presenting and relying on truthful but misleading evidence if it is genuinely beneficial to the client and increases his chances of acquittal.

"[I]f you should refuse to cross-examine her because she is telling the truth, your client may well feel betrayed, since you knew of the witness's veracity only because your client confided in you, under your assurance that his truthfulness would not prejudice him. [T]he same policy that supports the obligation of confidentiality precludes the attorney from prejudicing his client's interest in any other way because of knowledge gained in his professional capacity. [If] a lawyer fails to cross-examine only because his client ... has been candid with him, [the lawyer is using those confidences against his client.] The client's confidences must "upon all occasions be inviolable," to avoid the "greater mischiefs" that would probably result if a client could not feel free "to repose [confidence] in the attorney to whom he resorts for legal advice and assistance" Destroy that confidence, and "a man would not venture to consult any skillful person, or would only dare to tell his counsellor half his case."

Therefore, Freedman concludes, the attorney is obligated to attack the reliability or credibility of the victim, and by extension, offer the alibi testimony.

Yet, doesn't intentionally creating a false impression violate the good-faith basis principle? If the client has correctly identified your client, you do not have a good faith basis for insinuating that she is wrong because of poor eyesight, and it is hard to imagine that poor eyesight is relevant to any other purpose. Poor eyesight is not a material issue in its own right. Proving that she has poor eyesight or other physical defect "just for the heck of it" violates both the part of the good faith basis principle that requires a believe that evidence is relevant, and the prohibition against using "means that have no substantial purpose other than to embarrass" a witness.

Francis Wellman's classic The Art of Cross Examination sets a higher ethical standard. The purpose of cross-examination is to "catch truth," not to make the false look true and the true, false: "The purpose of cross-examination should be to catch truth, ever an elusive fugitive. If the testimony of a witness is wholly false, cross-examination is the first step in an effort to destroy that which is false.... If the testimony of a witness is false only in the sense that it exaggerates, distorts, garbles, or creates a wrong sense of proportion, then the function of cross-examination is to whittle down the story to its proper size and its proper relation to other facts....[But if] the cross-examiner believes the story told to be true and not exaggerated ... then what is indicated is not a "vigorous" cross-examination but a negotiation for adjustment during the luncheon hour.... No client is entitled to have his lawyer score a triumph by superior wits over a witness who the lawyer believes is telling the truth."

The same is true for presenting the misleading alibi evidence. The attorney lacks a good faith basis for believing that evidence of his client's alibi on June 2 is relevant to a crime that happened on the first. In the well known words of Lon Fuller, a lawyer "plays his role badly, and trespasses against the obligations of professional responsibility, when his desire to win leads him to muddy the headwaters of decision, when, instead of lending a needed perspective to the controversy, he distorts and obscures its true nature." Statements and evidence by an attorney designed to make the jury belief something which is not true "is a species of false statement of fact to a tribunal, which are condemned by Model Rule 3.3(a)(1)." Indeed, when the attorney first hears the witness mistakenly give the day of the crime as June 2, the attorney has discovered that false evidence has been presented to the jury, and is required to take appropriate remedial action -- disclose the falsity. The attorney may not ethically take advantage of unexpected favorable false evidence, even if the attorney had nothing to do with its creation.

VII. CONCLUSION.

The ethics of evidence involve more than a duty to be a zealous advocate and a rule against using false evidence. If that were all there were to it, trial attorneys would be ethically obligated to present unreliable and misleading evidence to a jury in an effort to deceive them, and to try to smuggle inadmissible evidence into the trial by ignoring the rules of evidence. Although some commentators have argued under slightly different terminology for exactly this result, it is clearly unacceptable. Ethics are not simply rules to be interpreted in the light most favorable to our clients, but moral principles that are supposed to guide our behavior as members of an honorable profession.

The ethic that proves the most helpful in analyzing how attorney gather, prepare and present evidence is the good-faith principle. Lawyers have an obligation to present only evidence which they believe to be the truthful, unaltered, natural recollection of witnesses, and which is admissible under the rules of evidence. They should not fabricate evidence or use false evidence fabricated by a client. They should not manipulate evidence in a way that misleads the jury. They should not create unreliable evidence through suggestive preparation techniques or outright bribery. They have an obligation to make sure that all material evidence is before the jury. Underwood is wrong when he says there is no rule against trickery. The good-faith principle is expressed in a dozen ways throughout the Model Rules, and it should play a more prominent role in the evidentiary decisions we make.

Tuesday, February 13, 2007

Thursday, February 08, 2007

d. Whether the Defendant's Right Was Violated.....

Texas Indigent Defense - The Fair Defense Act

YouKnowItAll.com

© A. Hawkins 2004

Suitability

This course is suitable for any interested attorney.

Scope

This is one of several courses covering court appointments. This one covers the 2001 Texas Fair Defense Act, a law reforming Texas indigent criminal and juvenile defense lawyer appointments.

A second course, Court Appointment of Lawyers, provides background for this course as well as background that may assist those who will be implementing the Texas Fair Defense Act. That course does not cover Texas law. Instead, it examines selected authority from other states that addresses court appointments and the legal, ethical, and constitutional issues they raise.

A third course, In 2002, Alabama v. Sheldon expands the Argersinger right to counsel, reviews the 2002 United States Supreme Court Alabama v. Shelton opinion which expands the constitutional right to an appointed lawyer to cases in which incarceration is not immediately imposed, but might be imposed later. Shelton’s suspended jail sentence is an example. Several justices speculated that the Shelton opinion would greatly increase the number of appointments and the amount of legal fees paid.

Other courses on related issues are expected, but no schedule has been set for them. These may include courses on the economic issues of court appointments, standards for appointment systems and lawyers, ethical issues, etc. Please let us know if you are interested in a particular subject. Your response will influence the timetable for the preparation of courses.

This course is exclusively focused on the 2001 Texas Fair Defense Act, with one Arizona case provided as a guide to the issues that will arise as the Texas Fair Defense Act is implemented. This course was originally published when the Fair Defense Act was enacted. The substance has not been changed. Through 2003, our research found no appellate opinion significantly mentioning the Fair Defense Act. If you are aware of any, please let us know.

This is a subject on which the teacher holds strong view. They are reflected in the commentary. You may disagree. The Discussion Group provides an opportunity for you to express your comments and opinions in addition to asking questions.

The Process

1. Study this text.

2. When you finish this text, go to www.YouKnowItAll.com to observe the discussion. There, you may choose to ask questions or make comments, or you may choose to just observe any discussion posted by others.

3. Keep track of your actual study hours and dates. After you complete your study, you certify your actual study hours at www.YouKnowItAll.com and you choose to whether to pay by check or credit card. Study time counts. Procedural and administrative time does not count. You receive credit for the actual study time you put in, based on your certification, up to the maximum for the course. Tuition is similar. If your actual study time is more than the maximum, your tuition is capped at the maximum. If your actual study time is less than the maximum, tuition is calculated based on your actual study time, at $20 per hour. Please certify your actual study time even if it is above the maximum. This allows us to better calibrate our courses, and helps the MCLE regulators recognize the real time you spend in your study.

4. YouKnowItAll.com provides a certificate of your attendance with the course name, course number, and the CLE credit hours you earned. If you are in the Texas bar, we report your credit to the State Bar of Texas. If you are in another bar and need something else, let us know.

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This course is primarily a case study which relies on the words of the courts which are quoted so that you may read them yourself. The teacher has selected quotations, deleted original emphasis, added the authors emphasis, and moved citations to footnotes. Commentary by the teacher is included in the text and in footnotes. Five asterisks ( * * * * * ) identify each new case, If a case doesn’t interest you, just search for * * * * * to find the next one. This also helps if you wish to go back to reread a case.

There are three kinds of footnotes.

1. Footnotes by the court retain the court’s original number. Our footnote is a footnote to that number.

2. Footnotes that move citations to the footnotes are intended to make the material more readable. Our footnote has the court’s citations.

3. Footnotes that contain some of the author’s commentary.

If you read this course online, your browser will probably let you click on a footnote number to go to the footnote and click on the number in the footnote to return to the text. Some browsers will show the footnote if you hold your curser over the footnote number without clicking If you print the text, you may wish to staple the footnotes separately so you may easily refer to them. They are at the end because of technicalities of the internet. This is a Microsoft Word document displayed as a web page. You may copy it into a word processor to print it if you like. If you have any problems, let us know.

Optional Telephone Conference

The teacher is available for an optional personal telephone conference on the substance of this course. If you have a question about the application of the material in this course to a particular case, or would just like to visit about this topic, you may do so. A brief basic phone conference is $20 per course. If you would like to schedule a phone conference, email or call YouKnowItAll.com.

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Table of Contents

Part 1. The Motivation for Reform - Texas Was Embarrassed

Part 2. The Texas Fair Defense Act, With Commentary

Part 3. What do Texas Lawyer, Courts, and Commissioners Do Now?

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The Course Text

Part 1. The Motivation for Reform - Texas Was Embarrassed

The new Texas law resulted from one motive. Texans were embarrassed by Texas courts and the lawyers who did their bidding.

This law was not passed to protect criminals.

This law was not passed to help lawyers.

This law was passed to stop the jokes, the shame, the humiliation, and, yes, the embarrassment. Texans were embarrassed. Texas leaders were embarrassed. Texas legislators were embarrassed. It was getting worse. The Texas media had discovered a rich vein of embarrassing material. They were learning that all it took to find another story was looking for one. The stories were dramatic, yet they only scratched the surface. The national media discovered Texas courts during the Presidential campaign of Texas Governor Bush, but they hadn’t realized the extent of the story. They might catch on.

It was embarrassing, and getting worse.

A lawyer slept through parts of a trial. Texas courts said a sleeping lawyer was good enough, and the defendant would be executed.

Defense attorneys were selected by prosecutors. That wasn’t new, but, reading it on the front page of the Dallas Morning News was new. It was embarrassing.

Texas judges were not embarrassed, but the legislature was - so, the legislature embarrassed the judges. They held hearings and asked tough questions. That embarrassed the judges. It wasn’t pretty. Then, everyone wanted to stop the embarrassment.

In 2002, the Fair Defense Act took effect and Texas moved toward a 20th Century indigent defense system. Within 10 years, Texas might have a 21st Century indigent defense system. Texas is changing.

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Lawyers in Other States Believed That Texas Criminal Defense was Illusory

When the Texas system is put on trial in other states, and the news makes the headlines in Texas, it is clear that the story is out.

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Colorado Lawyers Question Texas Justice for Escapees

“Colorado lawyers representing the six Texas prison escapees accused of killing a police officer during the Christmas Eve robbery of an Irving sporting goods store say they are concerned about their clients returning to Texas because of the bad reputation of the state's indigent criminal defense system. . . .

“Roland Zingale, a Colorado Springs solo representing Randy Halprin, says he's concerned about the quality of representation the escapees will have in Texas. Zingale says he knows of death penalty trials in Texas that last less than a week and has heard that lawyers appointed to handle such cases often are not qualified to try a capital case or, in some cases, fall asleep during the trials. . . .[1]

It was Disgraceful

“ ‘To me, it's disgraceful, not only that it happens, but that the court system tolerates it,’ Zingale says.[2]

Criticism of Texas was A Shame.

“Allan Van Fleet, a partner in Vinson & Elkins in Houston and vice president of Texas Appleseed, which is seeking reforms in the indigent defense system, says it's a shame that the state has a system that can generate such criticism.

“ ‘It shows that the issue is not going to die down now that George W. Bush is president,’ Van Fleet says.[3]

It Was Noticed.

“Alleged flaws in the way Texas appoints lawyers to represent the poor in criminal matters and the large number of executions in the state became a political issue last year when Bush, then the governor, was campaigning for the White House.[4]

It Was Bloody.

“Edward Mallett, president of the National Association of Criminal Defense Lawyers and a partner in Mandell & Wright in Houston, says the Colorado lawyers have a right to be concerned about sending their clients to Texas. ‘We're the state that kills more people than any civilized country than maybe Russia or South Africa,’ he says.” [5]

Should they All Die?

“Mallett says there may be a question as to whether each of the Texas escapees needs to be executed.”

“. . . Bryan Shaha, of the alternate defense counsel in Colorado, says there may be mitigating evidence that can be presented to show a reason not to execute the escapees who didn’t shoot Hawkins.

“However, Shaha says that waiting until the men are arraigned to appoint them lawyers is ‘awfully late’ in the process to be able to mount an effective defense for them. Texas investigators already have been in Colorado, and Shaha says they will have a ‘huge jump’ on the defense's investigative efforts.[6]

A Texas Railroad?

“ ‘Texas is going to be showcased on this,’ Shaha says. ‘If all it does is show Texas railroads, that's not going to do anybody any good.’

“Colorado has a public defender system and the state-funded Office of Alternate Defense Counsel, which appoints lawyers for cases in which the public defender has a conflict. Shaha says he assigns lawyers to cases. A lawyer must have previously handled a death penalty case to get such an assignment, he says.”[7]

Standards in Texas? A Novel Idea.

“[Sen. Rodney Ellis, a Houston Democrat who chairs the Senate Finance Committee] is drafting legislation that would create a state commission to set standards for lawyers who receive court appointments.

“His proposals, which have not been finalized, also would provide counties a model for making appointments — either a public defender system or a wheel system similar to the one used in Travis County that allows qualified attorneys to receive appointments when their names come up. But the choice of how to make appointments would be left up to each individual county, an aide to Ellis explains.[8]

If Texas Doesn’t Do It, the Federal Judges May Take Over.

“Ellis says it is important that the Legislature pass measures in the current session to reform the criminal indigent defense system.

“ ‘If we don’t do it, I fully expect the federal courts will end up having to force us to respond to the issue,’ he says. ‘I think we are approaching a crisis situation. I think that most reasonable people — those who criticize the current system and those who are supporters of it — realize we can do better.’[9]

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The Texas Way.

Texas left the appointment of lawyers to represent indigent criminal defendants to the judges. Mr. Zingale only knew part of the story when he said: “To me, it's disgraceful, not only that it happens, but that the court system tolerates it[.]” The full story is that Texas judges caused the disgrace. They presided. They held the power to appoint and the power to pay. They were responsible.

The Bar

The organized Texas Bar was part of the problem. It didn’t fix the problem. It didn’t make serious efforts to fix the problem It perpetuated the problem.

The Legislature

The legislature acted years ago. It gave the judiciary the power, responsibility and resources to fix the problem. It provided for reasonable fees for lawyers and gave the courts total control. The legislature assumed that the judiciary would do the job, but didn’t force them to do it. They judiciary failed, and the legislature slept, content in their belief that the judiciary was handling this problem.

Embarrassment and Reform

Like the proverbial drunk, Texas had to hit bottom before it could recover. For Texas indigent defense, the bottom was hit when Texas courts, in a death penalty case:

1. Appointed a lawyer who slept during parts of the trial.

2. Failed to declare a mistrial and deal with the situation then and there.

3. Entered a judgment of guilt and a death sentence.

4. Affirmed the verdict and death sentence despite the defense lawyer sleeping through parts of the trial. After all, the lawyer failed to clock out for his naps by making a record of when he slept, so the appellate record did not show whether the naps were harmful, and sleeping might even have been a legal strategy by a cagey defense attorney.

In Texas courts, a sleeping lawyer was not a big deal. But, like a suit over spilled hot coffee at McDonald's, it caught the public imagination. Any layman knows that a lawyer who is asleep is not good enough. If the Texas courts didn’t know that, something was seriously wrong with Texas courts. The sleeping Texas lawyer jokes began, and they haven’t stopped. The jokes embarrassed lawyers, legislatures, and even a few judges. The case itself may have troubled or embarrassed them, but the jokes did embarrass them. Defending Texas courts became too much of a chore. Being laughed at was tiresome. If concern for the guilty defendant wasn’t enough - and it wasn’t; and concern for the innocent accused who is found guilty wasn’t enough - and it wasn’t; being laughed at was enough to cause reform.

Texas can be grateful for one lawyer who fell asleep and served the cause of justice by exposing the Texas courts to ridicule.

Reform Was Stopped Once by Texas Judges

Reform was quietly enacted. A bill sponsored by Senator Ellis was passed. But, that was not the end of the matter. The judges, fearing loss of their patronage power to appoint lawyers, lobbied for a veto, and Governor Bush, oblivious to the problem, obliged. The judges claimed that they were interested in guaranteeing competent lawyers for defendants. Someone at the Governor’s office may have believed them. But the sleeping lawyer jokes continued, the media, with the Dallas Morning News in the forefront, investigated, and the judges decided to accept the inevitable reform and preserve any power that they could preserve.

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Media Editorials Demanded Reform

Indigent Defense

Texas needs to provide more competent lawyers

The Dallas Morning News 09/12/2000 ©2000

“If you are poor and thinking about committing a crime, you had better not come to Texas. And if you are poor and arrested for committing a crime in Texas, you had better start praying.

“The Texas criminal justice system can be tough: Three-strike laws. Elected judges who will hand out severe prison terms. Parole that is hard to get. And pardons that are nearly non-existent.

“That's what Texans want. But Texans don't want the embarrassment that is being revealed by Dallas Morning News reports on the uneven quality of indigent defense, especially when death, the ultimate penalty, is the sentence being handed down.

“Revelations that more than 100 prisoners awaiting execution were represented by court-appointed lawyers with state bar disciplinary problems should raise serious concerns. The lawyers representing death row cases have had eight times the rate of disciplines typical of most of the state's lawyers. There are even instances where court-appointed lawyers have flat out stated they are not competent to defend capital cases, have had their licenses suspended, have had clear conflicts of interest or have slept through trials.

“Death row cases are time-consuming and poorly compensated, making it hard to attract competent lawyers. But even competent lawyers find these cases difficult, involving complex processes like two stages of jury hearings (guilt and sentencing) and various appeals.

“Death row inmates may have the most at stake, but other indigent defendants also should concern conscionable Texans. In some Texas counties, indigent defendants can sit in jail for weeks or months before obtaining a court-appointed attorney. And then no minimum standards for competent representation are consistently set.

“The Legislature needs to address reforms in the Texas indigent defense system when it meets in January. To ensure fairness in the judicial process, Texas needs to:

“Create and fund for death penalty cases a centralized public defender system with a separate agency for habeas appeals. This system would help ensure the competency of lawyers. It would especially assist smaller counties where fewer cases are heard and county funding and local legal expertise are limited.

“Review the process for appointing indigent defense lawyers in other cases with the goal of establishing clear statewide standards, supervision and state-assisted financing.

“Texans want firm justice. But that means protecting the rights of all Texans, including the accused.”

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Justice Denied is Routine in Midland County

Midland Reporter Telegram, May 25, 1999.

“In misdemeanor court, a defendant isn’t granted a court-appointed attorney until the last few weeks before the trial, District Attorney Al Schorre said.

“Because there is not an indictment process in County Court at Law, defendants go through the process pretty much the same way one would in municipal court, Schorre said. Their involvement in pretrial hearings is basically to answer “guilty,” “not guilty” or “no contest” at each hearing.

“But if a person pleads not guilty throughout a misdemeanor case, the subject of whether he or she can afford an attorney will eventually arise before a trial begins.

“If they claim they can’t afford someone to represent them, the court asks the defendant to visit with several lawyers and try to negotiate a payment plan they could afford. If that doesn’t work, the defendant is granted a court-appointed attorney, Schorre said.

“The average misdemeanor case is on hold for two years before it is tried, Schorre said. It has improved from the three-year wait defendants were experiencing right after the County Attorney’s and District Attorney’s offices merged two years ago, he said.”

* * * * *

District Attorney Schorre once explained why lawyer don’t need to know anything to represent indigent defendants.

If the lawyer doesn’t know what to do, the lawyer can just ask the defendant - they know. And if the defendant doesn’t know, the defendant can ask the other inmates in the jail - they all know what to do.

Schorre meant what he said. He believed it. He was sincere.

* * * * *

An assistant district attorney under Schorre once explained it this way:

There are a couple of lawyers who are landmen.[10] They don’t practice law. They are appointed to cases I prosecute. They don’t know what to do, so they ask me. I tell them what a fair deal is. Of course, they have to trust me, but they can. I am honest and tell them the truth. and they agree to the deal I suggest. They trust me. It works fine.

He meant what he said. He believed it. He was sincere.

* * * * *

Attorney’s inexperience no barrier

He worked on appeal after winning delay to take class on process

The Dallas Morning News, By Pete Slover, September 11, 2000 [11]

“AUSTIN – Attorney Kerry Lee had no permanent license to practice law and no background in capital murder defense.

“But he was appointed by a trial judge to handle the appeal of death row inmate Henry Lee Dunn Jr. Mr. Lee had been practicing law for less than two years.

“And the state’s highest criminal appeals court let him stay on the case even after he signaled his inexperience by asking the court to delay the appeal so he could take an introductory course in death-penalty defense.

“ ‘Counsel has found that he has more questions than answers as work on the brief has progressed,’ he wrote. ‘The instruction and written materials available to ... [me] will be invaluable to assuring appellant is competently [sic] represented by the below signed attorney.’ ”

“Mr. Lee, who lost his temporary law license in 1998, did not return repeated messages left at his home near Tyler seeking comment.

The presiding judge on the Texas Court of Criminal Appeals said he didn’t recall Mr. Lee’s request for a delay to take a class and added that an attorney is presumed to be qualified if he or she is licensed by the state.[12]

“ ‘It's a tough nut to crack, trying to say this lawyer’s competent and this attorney's not,’ Judge Michael J. McCormick said. ‘In the end, it's the attorney’s duty to know their own limitations, and not accept cases if they can't handle them.’ ”

“A death penalty appeals expert disagreed, saying that an underqualified attorney might not recognize his own shortcomings, or might feel pressured by a local judge to accept a case against his better judgment.

“In any case, Houston attorney Jim Marcus said, the appeals court could have forced a change in lawyers on its own accord, if they noticed problems.

“ ‘Courts fashion remedies,’ he said. ‘That's what they do.’

“When a defendant in Texas cannot afford to hire an attorney – and the vast majority cannot – a trial judge appoints one to be paid for by the county. For appeals, the judge can appoint the same or a different attorney.

“While the Lee case is an extreme example, The News found more than 100 death row inmates who have been represented by court-appointed attorneys with troubled professional histories or whose performance has become an issue in protracted appeals.

“Judge McCormick and other supporters of the system said that a lawyer with a disciplinary history is not necessarily a bad lawyer. They add that Texas provides multiple safeguards to ensure that defendants get a fair trial.

“Mr. Lee’s troubles began even before he started practicing law. Although he passed the Texas bar exam, the state Board of Law Examiners decided in February 1994 that it would only give him a probationary law license. That status indicates the board sees a problem either with the person's background or character. Records show that in this instance, the board was concerned about Mr. Lee’s failure to repay student loans and other debts.

“Nonetheless, Mr. Lee was appointed in October 1995 to handle the appeal of Mr. Dunn, who had been convicted of kidnapping and murdering a Tyler man, a killing that Mr. Dunn attempted to justify on the grounds that the victim was gay.

“Visiting state District Judge Leon F. Pesek, who made the appointment, did not return calls to his Texarkana office.

“Earlier that fall, a new state law had taken effect that required counties to develop minimum standards for defense lawyers appointed to capital murder cases. Smith County set only two hard-and-fast rules for appellate attorneys: They must have previously filed a ‘quality defense brief on a first-degree felony case,’ and they must be attorneys in good standing with the State Bar of Texas.

“Mr. Lee met neither of these qualifications, records suggest.

“The Court of Criminal Appeals and the 12th District Court of Appeals, the two courts that would have fielded appeals out of Tyler, show no cases other than the Dunn appeal that were handled by Mr. Lee.

“Even after the Court of Criminal Appeals gave Mr. Lee an extension so he could attend the class in capital defense, he missed that deadline. He filed his brief only after the court threatened to jail him for contempt.

“And when the time came for him to argue the case in front of the court, Mr. Lee – by then fighting to keep his provisional law license – was a no-show. The court left him on the case and denied his appeal, noting that six of the 11 arguments he had filed were ‘inadequately briefed and presented nothing for review.’

“Records show that Smith County paid Mr. Lee $8,647 for the Dunn case.

“Mr. Dunn's subsequent appellate lawyer has made Mr. Lee's performance a basis for further appeals – so far unsuccessful.

“In March 1998, Mr. Lee lost his probationary license after bouncing checks for state bar dues and occupational taxes and failing to appear at a board hearing to defend himself.

“The board expressed concern that there was a ‘likelihood that he would harm a client, obstruct the administration of justice, or violate [state bar rules]’ if he continued to practice law.”

* * * * *

Another View

A lawyer who took this course in the 2001-2 year thought that it was a bit too tough on the Texas system. He prosecuted misdemeanor cases in a small Texas county. He selected the defense attorneys. He thought the system worked fairly well. However, he volunteered that he did not approve of the way felony cases in that county were handled because defendants were often in jail for six months before a lawyer was appointed.

* * * * *

There were other problems. One was judges making appointments based on the exchange of favors or cash to the judge, the judge’s campaign fund, or a local bar association. Some actions were open. Some were hidden. Some were documented in writing. Some were perceived. Some were real. Stories were common.

* * * * *

D.A. probes judge's legal assignments

By JOE STINEBAKER Houston Chronicle.com June 23, 1999[13]

“The Harris County District Attorney’s Office will look into reports that a local juvenile court judge assigned paying cases in his court to lawyers who had contributed to his recent re-election campaign.

“District Attorney John B. Holmes Jr. said he had asked his office’s public integrity division to look into reports that Judge Pat Shelton rewarded campaign contributors by assigning them cases from families who had not selected lawyers.

“ ‘Actually we had looked into it before,’ Holmes said. ‘If there's any truth to it, that’s a crime. But I can tell you right now, we’re not going to get there. I don’t think we’ll ever get there, quite frankly. But I don’t think we can do nothing either.’

“Holmes said that because the accusations, which came primarily from a local lawyer, were of a ‘he said, she said’ nature, it would be difficult to prove or disprove them.

“The accusations against Shelton derived primarily from the way he appointed attorneys in some of the juvenile cases in his court from January until last month. Like other judges, Shelton assigns lawyers to represent poor clients with criminal cases in his court. But many families he described as ‘paycheck to paycheck working poor’ do not qualify for free legal help but still cannot afford lawyers of their own. So Shelton said he began a program that would connect those families to attorneys waiting in his courtroom for a flat fee, usually $150.

“Shelton said he canceled the program after many of those lawyers complained that they were being paid with checks that later bounced.

“Some of the attorneys assigned cases by Shelton were contributors to the judge's 1998 re-election campaign, and one attorney said she was told by Shelton's court coordinator that she would not receive such appointments unless she made regular campaign contributions.

“Shelton denied the accusations Wednesday and said the criticisms were similar to those that all judges get about assigning cases to lawyers who contribute to their campaigns -- a common practice, but one that is widely criticized as being ripe for political corruption.

“Shelton said that of the 200 appointments made in his courtroom last year, only 40 went to campaign contributors.

“ ‘In my opinion, I think that speaks for itself,’ he said. ‘There is no quid pro quo.’ ”

* * * * *

A more recent case involves a civil appointment.

* * * * *

Judge reprimanded for hiring friend

Associated Press[14] 07/05/2001

“DALLAS – The State Commission on Judicial Conduct has issued a public reprimand of a Dallas County family law judge accused of naming a friend to a lucrative appointment.

Judge Craig Fowler engaged in a ‘quid pro quo’ relationship with attorney Kip Allison, commission chairman Scott Mann ruled last week.

Fowler had hired Allison to represent him in a dispute with a relative over the estate of the judge's deceased mother. Allison was paid a nominal amount by Fowler, who then appointed him to a child custody case for which he was paid fees that ‘grossly exceeded’ fair market value, Mann said.

“Mann said Fowler wished to compensate Allison for his work in the estate case, without having to share any inheritance.

“The actions leave the commission with ‘the unmistakable impression that Judge Fowler rewarded his close, personal friend, Kip Allison, with a lucrative appointment,’ the reprimand states.

“Fowler did not immediately return phone calls from The Associated Press seeking comment.

“The commission issues three levels of sanctions. Reprimands are the most severe, followed by warnings and admonitions. The commission does not have the power to suspend judges, issue fines or send judges to jail”

* * * * *

The Power of Shame

By February, 2001 the Chief Justices of the Texas Supreme Court and Texas Court of Criminal Appeals were embarrassed into a strategy of deflecting blame, and suggesting that someone should change the system over which they presided. They seemed happy to let someone else fix the problem while they avoided responsibility. This was progress.

* * * * *

Grant sought to train court-appointed lawyers

The Dallas Morning News February 15, 2001 By Nancy San Martin[15]

“AUSTIN – The presiding judge of the state’s highest criminal appeals court says the problem with incompetent defense for poor people isn't that judges appoint the attorneys, but that lawyers don’t have adequate training.[16]

“Speaking before Senate budget writers Tuesday, Court of Criminal Appeals Presiding Judge Sharon Keller proposed that lawmakers give the Texas Criminal Defense Lawyers Association a $1.2 million grant to beef up a training program that teaches lawyers how to try cases, rather than just plead out.

“ ‘I don't think the problem is with the appointments by the judges; I think the problem is that the lawyers aren't being trained sufficiently,’ Judge Keller told members of the Senate Finance Committee.

“Judge Keller's statements came on the same day that Texas Supreme Court Justice Tom Phillips addressed growing concerns over the need to improve the indigent defense system.

“ ‘While most[17] courts have done a commendable job of appointing competent counsel to represent those who cannot afford to hire their own attorney, there have undoubtedly been some severe lapses,’ Justice Phillips told the Senate Jurisprudence and House Judicial Affairs committees during his ‘state of the judiciary’ address.

“ ‘Some appointed counsel have been unwilling or unable to represent their clients vigorously or effectively; others have been appointed after unreasonable delay; and still others have been markedly underpaid for their services,’ he said. ‘It is time to make certain that these problems do not occur again.’[18]

“The recommendation by Judge Keller came two weeks after senators criticized her for what they said was a failure to show leadership in indigent defense issues by neglecting to ask for money to help improve the state's much criticized system.

“Judge Keller said the court does not have ‘rule-making authority in criminal cases.’[19]

“The funding request seems high, said Sen. John Whitmire, D-Houston, particularly because none of the money would go toward paying lawyers. Individual counties currently pay indigent defense attorneys at a cost of about $94 million a year. Some have suggested that state money be used.

“ ‘It's important that people in your position show some leadership formally and informally,’ Finance Committee Chairman Rodney Ellis, D-Houston, told Judge Keller. ‘I'm just hoping that the judiciary of Texas will show some leadership. ... We're being dragged into this discussion kicking and screaming and embarrassed by looking bloodthirsty.’

“Judge Keller said the power for both providing the funds and giving the courts the necessary authority is in the hands of the Legislature.

“ ‘Nobody wants to fund indigent defense through the court,’[20] Judge Keller said. ‘So we're not going to go ask for money that we don't think we’re the right ones to be spending.’[21]

Judge Keller says judges could, however, properly ask for the training grant.[22] ‘We have an existing organization that is willing to do all this, so it seems cost-effective to let them do it,’[23] she said.

Abuse concerns

Trial judges in most of the state’s 254 counties appoint lawyers to represent indigent defendants. The practice, critics say, can be abused by judges who are more interested in naming lawyers prone to plea-bargaining for the sake of expediency rather than defending cases.

In addition to battling this practice,[24] the $1.2 million grant proposed by Judge Keller would also help pay for courses to help indigent defense attorneys get required certification for capital cases. The money would also be used to improve the association's Web site and other informational material.

The head of the program that would handle the $1.2 million grant said Tuesday that Judge Keller's options are limited.

“ ‘The complaints about the indigent defense system have focused on pay, on process and on competence,’ said D'Ann Johnson, executive director of the Texas Criminal Defense Layers Association. ‘What she [Judge Keller] tried to say was the only thing that she has the current authority to do anything about is competence.[25]

“ ‘If they had more money, they could administer a program that would have more training. There’s not minimum standards for people to take appointments, and there’s not required continuing legal education in criminal defense except for in a few counties, like Travis County,’ Ms. Johnson said. ‘So if you establish those types of standards ... that would help.’

Sustained effort

“Mr. Ellis has tried for several sessions to alter the state’s system of appointing attorneys for indigent defendants.

“Last session, he sponsored a bill that would have given counties the option of setting up a public defenders’ office or contracting with outside agencies, or allowing judges to continue appointing attorneys for the indigent. It also would have required public defenders to be appointed within 20 days of the defendant’s request.

“The bill passed, but it was vetoed by former Gov. George W. Bush, who said it would take too much power away from judges.

“The veto came after much lobbying by judges.

“Mr. Ellis, who is planning a news conference Wednesday to unveil his latest bill, said Tuesday that he wants judges to expend as much energy in solving the indigent defense problem as they did in killing last session's bill.”

* * * * *

The Embarrassment Became Unbearable Even As the bill Was Considered

The following story wasn’t surprising. This was no worse than what was done in much of Texas. In some ways it was better than what happens elsewhere. It certainly wasn’t surprising that, of 94 appointments, there were 94 guilty pleas. It wasn’t surprising that, of 94 appointments, none resulted in a fee request for anything more than the time required for token representation and a plea announcement. It wasn’t surprising that the defense attorney was chosen by the prosecutor. 32% of prosecutors who responded to a survey stated that prosecutors had “some” “moderate” or “substantial” influence in determining who would be appointed to represent the defendant, while 11% of judges responding to the survey gave the same responses.[26]

* * * * *

DA-judge setup adds fire to defense debate

Jurist lets prosecutor pick lawyers for poor

The Dallas Morning News By Steve McGonigle[27] 04/08/2001

“LAMESA,[28] Texas – Ricky Smith not only prosecutes people accused of crimes, he also arranges attorneys for defendants who can't afford one.

“The district attorney and his staff routinely contact lawyers to notify them of defendants who need representation and ask if they will accept the assignment. The prosecutor's office also prepares the order that a judge signs to make the appointment of its courtroom opponent official.

“Mr. Smith and state District Judge George Hansard said their arrangement is appropriate. The prosecutor said he is simply lending a hand to the only felony court judge in the four-county district south of Lubbock.

‘The judge is the one who signs the appointment and pays the fee,’ Mr. Smith said. ‘I don't sign anything like that.’

“But several lawyers familiar with Mr. Smith's role alleged that Judge Hansard is allowing the prosecutor to assume the judge’s exclusive power of appointment and, in effect, handpick his courtroom adversaries.

“It’s like the fox feeding the chickens,’ said Bill Wischkaemper of Lubbock, a past president of the Texas Criminal Defense Lawyers Association who has practiced for 25 years in Mr. Smith’s district.

“Judge Hansard’s approach to attorney appointments, while unusual, is an outgrowth of the wide discretion that Texas criminal court judges have in providing lawyers for poor people accused of crimes.

“The absence of a statewide system of indigent defense has spawned a variety of approaches that often vary from judge to judge.

“Most counties rely on private attorneys to take appointments. Some contract with lawyers for defense services. A handful have public defender offices. Even fewer use a ‘buy out’ system that allows lawyers to pay an annual fee to be exempted from appointments.

“The state Code of Judicial Conduct directs judges to make their appointments impartially and based on merit. State Bar rules prohibit lawyers from helping judges to violate their conduct code.

“Margaret Reaves, executive director of the state Commission on Judicial Conduct, said she was unaware of Judge Hansard’s appointment practices but questioned its propriety.

“ ‘The judge seems to have subrogated and delegated his authority to somebody who has an interest in the outcome of the case,’ Ms. Reaves said. ‘I think that would be a real concern.’

“Frank Newton, dean of Texas Tech University's law school and a leading state expert on lawyer ethics, said that however practical and well-intentioned it is, Mr. Smith's participation in appointments could be perceived as giving him an unfair advantage.

“ ‘You've got something that while not technically wrong,[29] raises the specter that there could be either collusion or favoritism or lack of independence on the part of defense counsel,’ ” Mr. Newton said.

“Judges statewide have argued against legislative proposals to lessen their roles in selecting defense lawyers. The judges contend they can best ensure that disadvantaged defendants receive equal justice.

“ ‘Most judges do a very good job,’ said state District Judge Robert Dinsmoor[30] of El Paso, a member of the State Bar of Texas’ Committee on Legal Services to the Poor.

“ ‘You can always find some anecdotal stories out there where some things have been done wrong,’ he said. ‘But just because there are some anecdotal stories does not necessarily mean you should throw the whole system out.’ ”

Rural challenge

“The 4,200-square-mile area over which Judge Hansard has presided since 1971 typifies problems faced by many rural judicial districts in the state.

“The most populous city in the district, Lamesa, is home to a dozen licensed lawyers. Almost all practice civil law; none is taking court appointments[31] to represent criminal defendants.

“The rate of compensation that the counties pay to court-appointed attorneys makes it a challenge to attract lawyers from Lubbock or Midland who are willing to make the hour long drive to Lamesa.

“In 1999, the four counties where Judge Hansard operates spent a combined total of about $120,000 on attorneys for poor defendants. Dallas County, by comparison, paid each of 11 lawyers that amount or more last year.

“Mr. Smith, the district's chief prosecutor since 1985, said Judge Hansard's workload and lack of support staff drew the district attorney's office into the struggle to find qualified lawyers to take appointments.

“ ‘The judge is one individual for four counties with a coordinator and a part-time secretary,’ ” Mr. Smith said. ‘We have all the information.’ ”

“He said prosecutors routinely help judges in rural, multicounty judicial districts. But a judge in an adjacent district said he did not involve prosecutors in appointments and did not consider it proper.”

“ ‘We have an adversary system,’ said Judge Kelly Moore of Brownfield, who also oversees administrative matters for courts in 45 Panhandle counties. ‘Even if we have what we call 'friendly cases,' you just can't start it off on that front.’

“Dan Hurley, a Lubbock defense lawyer who used to take appointments in Judge Hansard’s district, contended that the practice of allowing prosecutors to arrange for lawyers to defend poor people stemmed from the judge'’s lack of interest in the task.

“ ‘Judge Hansard is involved in this as little as possible,’ Mr. Hurley said. ‘It's a function of him being lazy and just letting somebody else handle that.’ ”

‘Ministerial act’

“The judge, who reaches the mandatory retirement age of 75 in October, acknowledged that he allows Mr. Smith to contact defense attorneys about taking cases. Like Mr. Smith, he said he saw nothing improper about the prosecutor's involvement.

“ ‘I wouldn't think anything about it if they made phone calls because I asked them to,’ Judge Hansard said during a brief phone conversation.

“Asked whether Mr. Smith and his assistants made appointments of defense attorneys, the judge replied, ‘I didn't think they did.’

“Mr. Wischkaemper said Mr. Smith's insistence that he does not make appointments of defense attorneys has a hollow ring.

“ ‘I think when they are contacting the lawyer and telling him, ‘Go over and see the [defendant],’ that they are actually making the appointment,’ he said. ‘It's just a ministerial act for the judge to sign the order.’

Signing off

“Six lawyers, including a former assistant in Mr. Smith's office, agreed that Mr. Smith influenced Judge Hansard's appointments.

“ ‘The district attorney contacts the defense attorneys to see if they are willing to be court-appointed on these particular cases. We do that and present it to the judge for his signature,’ said Lynn Haltom, who worked for Mr. Smith as a prosecutor until last year.

“Lawyer Jay Napper said that when he first approached Judge Hansard about indigent defense work in 1994, the judge's court coordinator told him to let the district attorney's office know that he was interested in appointments.

“ ‘I did, and I began getting them," said Mr. Napper, now a county attorney in Lynn County, which is in Mr. Smith's district.

“Mr. Napper said the judge normally endorsed the "suggestion" from prosecutors about which attorney should be appointed.

“ ‘I don't think most districts run it that way,’ he said.

A tale of two lawyers

“A review of court appointments made during the last fiscal year in three of the four counties where Judge Hansard presides showed that the bulk of the defense work went to two Lubbock lawyers, Ron McLaurin and Dwight McDonald.

“Mr. McLaurin, 48, is a former Texas assistant attorney general and a past president of the Lubbock Criminal Defense Lawyers Association. He and Mr. McDonald, 34, an active player in civic affairs, are law partners.

“Mr. Smith said that at Judge Hansard's request, he contacted Mr. McLaurin about a year ago to see whether he knew of lawyers in Lubbock who might be willing to take court appointments.

“ ‘His [Mr. McLaurin] response to me was there just wasn't anybody who wanted to do that on a consistent basis,’ Mr. Smith said. ‘He said he and Dwight would do it.’

“Auditor’s records in the two largest counties, Dawson and Gaines, show that Mr. McLaurin and Mr. McDonald were appointed to 94 felony cases last year and earned a combined $20,100.[32] The next highest paid lawyer made $3,200.

“All payment requests submitted by the two Lubbock lawyers were for $200 or $250 – typical for a plea-bargain case, Mr. Smith said.

“Mr. McLaurin agreed to an in-person interview but later declined to talk. Mr. McDonald said he had a policy of not giving interviews.

“Records show that Judge Hansard signs the appointment order at the same time a poor defendant enters a guilty plea and is sentenced. The fee amount – and often the defense attorney's name – is typed on the form before court by the district attorney's office.

“Defendants routinely meet their appointed attorneys for the first time at events known in courthouse parlance as ‘plea days.’

“It is not uncommon for a single attorney to be appointed on several cases and have his clients enter guilty pleas on the same day. Mr. McDonald billed for disposing the cases of 11[33] clients on one day last year, auditor records in Lamesa show.

‘A quick paycheck’

“Tommy Williams met Mr. McDonald on a Thursday and entered a plea the following day. Mr. McDonald had 14[34] other clients who entered pleas those two days.

“Mr. Williams, 21, said during their only conversation, Mr. McDonald never asked any questions, then urged him to accept a prosecution offer of 10 years’ probation for sexual contact with an underage date.

‘I don't really feel that he was representing my best interests. I feel he was just doing what he did to get paid a quick paycheck,’ Mr. Williams said.

“Mr. Williams was 19; the girl he touched was 13. He had no criminal record and had graduated with honors from Lamesa High School the year before the incident.

“The victim told police that the touching was consensual and she did not want Mr. Williams prosecuted. But her mother insisted that charges be filed, records show.

“As far as he knows, Mr. Williams said, Mr. McDonald never attempted to investigate the case, other than reading his court file. He never asked Mr. Williams about his background or attempted to interview potential character witnesses.

“Mr. Williams said he agreed to the deal because he thought he could still go to medical school. He said he did not know that he would be required to register for life as a sex offender and did not realize until later that he had to pay for counseling.

“ ‘I assumed he [Mr. McDonald] knew what he was doing. Since he was doing so many cases so fast, I figured he had experience doing this,’ Mr. Williams said.

“Had he known the full implications of a plea, he said, he would not have agreed to it.

“Less than a year after being put on probation, Mr. Williams was jailed for failing to register a new address and missing a series of counseling sessions, which he said he couldn’t afford.

“He spent nine months in the Dawson County Jail before the district attorney’s office agreed to reinstate his probation.

“Mr. Smith first contacted Mr. Williams’ new attorney, Bill McNamara, about releasing him two days after a reporter for The Dallas Morning News interviewed Mr. Williams in jail.

In the case of pleas

“Jim Caton, a lawyer in Seminole, in Gaines County, said he quit taking appointments last year because he could no longer tolerate being pressured by prosecutors to plead clients or risk losing future appointments.

“ ‘Lawyers do it until they get fed up, until they figure out that they have an ethical problem,’ Mr. Caton said.

“Other lawyers said the pressure for an appointed lawyer to plead his client quickly was based on simple economics. Cases are usually routine, and the fees do not encourage lengthy negotiations, they said.

“ ‘I know Ron [McLaurin] and Dwight [McDonald] well enough that they will tell Ricky [Smith] or one of his assistants to jump in a lake’ if they dislike a plea offer, said Cal Huffaker, a lawyer in the Lynn County town of Tahoka who said he occasionally accepts appointed criminal work.

“ ‘I think the problem is that those guys are trying to make a living, and they're having to push it through as fast as they can. And sometimes it ends up with people not getting the best representation.’

“Mr. Smith laughed at the notion that he could coerce Mr. McDonald or Mr. McLaurin to enter a plea that was not in their client's best interest.

“ ‘They're always coming back to you with something different than what you offered,’ he said. “I can't recall a time when they didn't, which is what you like to see.”

“It is in the best interest of all parties, he said, for a defense attorney to be competent and vigorously defend his clients.

“You want them [clients] to have their rights protected. Certainly, you don’t want them convicted of something they didn't do and sent to the pen,’ Mr. Smith said.

“Even though the prosecutor decided to drop his demand that Mr. Williams be imprisoned, the young man's hopes for a medical career are dashed.

“ ‘It hurts,’ he said, wiping at his eyes. ‘That’s all I ever wanted to do. That's why I took all these classes in high school. I really wanted to help people. They just took that dream away from me. Now, I can't do that.’ ”

* * * * *

Epilogue in Lamesa

* * * * *

Judge criticized for DA role retires

He let prosecutors pick lawyers for poor

The Dallas Morning News By Steve McGonigle 04/12/2001[35]

“A longtime West Texas judge who had been a subject of recent criticisms for allowing prosecutors in his district to help arrange defense attorneys for poor people accused of crimes has abruptly retired.

“State District Judge George Hansard, in a letter dated April 5, advised Gov. Rick Perry that after almost 30 years on the bench ‘it is time to retire.’ He asked that his retirement be considered effective the following day.

“Judge Hansard, who presided over a four-county judicial district south of Lubbock, was six months from reaching the mandatory retirement age of 75. His decision to retire earlier caught attorneys in his district by surprise.

“The judge did not return a phone call to his home. His court coordinator, Jana Porterfield, said he was not available. She declined to discuss the judge's retirement.

“His retirement came two weeks after The Dallas Morning News interviewed Judge Hansard for a story about his practice of allowing the district attorney’s office to contact lawyers about taking court appointments to represent indigent defendants.

“The News published its story on Sunday. In it, the executive director of the state Commission on Judicial Conduct expressed concern that the judge may have improperly delegated his exclusive appointment power to prosecutors.

“Judge Hansard and District Attorney Ricky Smith denied any impropriety and said that any assistance Mr. Smith had provided on appointments was at the judge’s request.

“Jim Caton, an attorney in Seminole, said the judge wrote him three weeks ago to inquire about why Mr. Caton had not disposed of a particular criminal case. All indications were that the judge was continuing his work as usual, Mr. Caton said.

“ ‘He wanted to move his cases,’ Mr. Caton said.

“The first public announcement of the judge's decision was published Sunday in the Lamesa Press Reporter.

“Russel Skiles, editor and publisher of the newspaper, said the judge did not elaborate on his reasons for retiring early. The story quoted the judge as saying he had made the decision to leave the bench in the last two weeks.

“Mr. Skiles said that during their interview, the judge mentioned being questioned by The News and asked Mr. Skiles not to provide a photograph of him to the Dallas paper. But Mr. Skiles said he sensed health concerns might have been the reason for the judge's departure. The judge's letter was received in the governor's office Monday and forwarded the next day to the office that handles judicial appointments.

“State District Judge Dean Rucker of Midland, administrative judge for the area that includes Judge Hansard’s district, said he had named another retired judge, Gene Dulaney, to replace Judge Hansard until a gubernatorial appointee is seated.

“The leading candidates for the vacant judgeship are Mr. Smith, civil attorney Carter Schildknecht of Lamesa and Bonnie Ericson, a former county attorney in Gaines County.”

* * * * *

The Media Praised Where Praise Was Due.

* * * * *

Judges don't always rule

In Travis, they review, but lawyers must make cut

The Dallas Morning News By Diane Jennings 04/08/2001

AUSTIN – Even the harshest critics of Texas' indigent defense system find a kind word to say about the way attorneys are appointed in Travis County.

“ ‘If everybody did what Travis County did, we'd be fine,’ said James Harrington, director of the Texas Civil Rights Project.

“The county’s system was cited as a bright spot by Texas Appleseed Fair Defense Project in its recent report on indigent defense.

“What sets the Travis County system apart from other Texas counties is that although judges still have input, the appointment process has been removed from their direct control.

“The current system began evolving about eight years ago, said Rod Gustafson, Travis County’s director of court management for district and county criminal courts.

“Before then, new attorneys received appointments if a judge ‘saw that spark in their eyes or [they] were mentored by some older lawyer they knew,’ Mr. Gustafson said. ‘That was bull. What we had was baby lawyers who prosecutors just cut to pieces. ... One day, the judges looked up and said, ‘We can't do this.’ ”

“Now attorneys must apply to be put on a list of lawyers eligible for appointments, and to get on the list they must meet certain minimum standards. The county maintains lists of attorneys deemed qualified for misdemeanors, felonies, capital crimes and appeals.

“To receive felony trial appointments in Travis County, for instance, an attorney must have spent at least two years as a prosecutor or a criminal defense lawyer. In addition, he or she must have served as lead counsel in at least three misdemeanor trials or as lead or assisting attorney in at least three felony trials. To stay on the list, attorneys must complete 10 hours of continuing legal education in criminal law each year.

The judges review applications and evaluate the performance of lawyers already receiving appointments at semiannual meetings.

Judge Wilford Flowers said the system works well. ‘I gain by having a judge I respect tell me ‘this is an excellent trial lawyer’ or 'this guy is not as good,’ ” he said.

After the list is compiled, county administrators take over the appointment process.

Once they identify which defendants are poor, they appoint attorneys from the judges' list on a rotating, alphabetical basis. Exceptions to the rotation are made only for special needs, such as a defendant who requires a Spanish-speaking attorney.

Persuading judges to relinquish control of each appointment was difficult, Mr. Gustafson said. ‘Judges like doing that,’ he said. ‘One of the benefits of being a judge is you get to help your friends, you get to be in charge.’

“But because the system cut judges' administrative workload, it quickly became popular. ‘The judges here have been wise enough to realize that playing politics takes a lot of time,’ Mr. Gustafson said.

“As an added benefit, the system silences complaints of patronage or favoritism often heard in other counties.

“ ‘We love it. That way, no one can gripe about appointing their buddy,’ said Judge Bob Perkins, the administrative judge of criminal district courts in Travis County.

“Unlike counties where appointments may be concentrated among a select group of attorneys, the rotating system spreads appointments more evenly. According to county records, out of about 150 attorneys eligible for felony appointments, only five made more than $50,000 during the 1999 fiscal year. The top earners often are involved in capital cases or receive more appointments because they're bilingual, Mr. Gustafson said.

“Judge Perkins said judges also like the system because the review process gives them control of the quality of lawyers in their courts.

“Texas judges’ role in the process has been a major issue in efforts to change the state’s system for providing lawyers to poor defendants.

“Proposals to improve indigent defense pending before the Legislature include giving judges the option of making appointments on a rotating basis from a list of qualified attorneys.

“Judge Perkins isn't sure the Travis County system would work statewide, where conditions vary widely. ‘It will work statewide if you have a big enough pool of volunteer [lawyers], that’s the key,’ he said.

Judge George Godwin said he didn’t necessarily think it would work in Houston. ‘Austin is to Texas what Washington, D.C., is to the United States.

‘If it works for Travis County, I want Travis County to be able to do it, I don’t want them to tell me to do what they do.’ ”

* * * * *

Part 2. The Texas Fair Defense Act

The Texas Fair Defense Act, With Commentary

Preface

The Texas Fair Defense Act is a stunning political, social, and cultural achievement for which Senator Rodney Ellis deserves the highest accolades. This law is a masterpiece.

This praise is not for the law alone. The praise reflects the environment in which it was done. Most said it couldn’t be done. They said that, at best, some modest steps were possible. A law like this was impossible. The impossible was accomplished. Congratulations, Senator Ellis. You have a legacy.

This law creates a structure for reform. It includes reform, but most of the improvement will happen over a decade. The structure created by this law makes true reform likely. That is astounding. It reforms the appointment process, but it does far more. It creates a Texas Task Force that sets standards; analyses the problems and their solutions; gives money to counties that meet, or will meet, the standards, and publicizes the problems and progress. And, it compares Texas to national standards. Until now, Texas refused to acknowledge that there are standards, and refused to look outside its borders for wisdom. That provincialism ends.

An environment in which problems were denied and hidden is replaced by an environment in which problems are exposed, analyzed, and addressed. Wow!

The judiciary of Texas presided over a constitutional, moral, and ethical wasteland known as Texas indigent defense. That ends. The total control by judges ends. The legislature has asserted itself. The judiciary capitulated and is accepting reform. A new state entity will establish standards that the judiciary will ratify as it is dragged, kicking and screaming, into the 20th Century, and perhaps soon, the 21st. Texans enter a new era.

Here is the law in the format of the bill with bill page and line numbering, and underlining and brackets showing additions to, and deletions from, prior statutory language. The teacher’s shorthand comments by are in italics prior to provisions to which the commentary applies, but you may wish to read the provision of the bill before reading the related commentary. Bold emphasis has been added to the bill text to draw your attention to certain language.

One reference in the law may be confusing. Texas has Administrative Judicial Regions. Some regions are as large as some states. Each has a “Presiding Judge” who spends part time as an administrative judge handling matters such as assigning visiting judges. That judge is not the local administrative judge who handles administrative matters within a county. This bill gives some duties to the Presiding Judge of the Administrative Judicial Region and sometimes refers to lawyers as being “from” such regions.

* * * * *

1-1 AN ACT

1-2 relating to the period during which a person arrested is required

1-3 to be taken before a magistrate or released on bond and to the

1-4 appointment and compensation of counsel to represent indigent

1-5 persons accused of crime.

1-6 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

1-7 SECTION 1. This Act may be known as the Texas Fair Defense

1-8 Act.

1-9 SECTION 2. Article 1.051, Code of Criminal Procedure, is

1-10 amended by amending Subsection (c) and adding Subsections (i), (j),

1-11 and (k) to read as follows:

The court may appoint lawyers or designate a person or entity to appoint lawyers. In counties with under 250,000 people, appointments must be ASAP and at least by the 3rd working day after the court receives a request. In 250,000+ counties, it is 1 day.

1-12 (c) An indigent defendant is entitled to have an attorney

1-13 appointed to represent him in any adversary judicial proceeding

1-14 that may result in punishment by confinement and in any other

1-15 criminal proceeding if the court concludes that the interests of

1-16 justice require representation. Except as otherwise provided by

1-17 this subsection, if [If] an indigent defendant is entitled to and

1-18 requests appointed counsel and if adversarial judicial proceedings

1-19 have been initiated against the defendant, a [the] court or the

1-20 courts' designee authorized under Article 26.04 to appoint counsel

1-21 for indigent defendants in the county shall appoint counsel [to

1-22 represent the defendant] as soon as possible, but not later than

1-23 the end of the third working day after the date on which the court

1-24 or the courts' designee receives the defendant's request for

1-25 appointment of counsel. In a county with a population of 250,000

2-1 or more, the court or the courts' designee shall appoint counsel as

2-2 required by this subsection as soon as possible, but not later than

2-3 the end of the first working day after the date on which the court

2-4 or the courts' designee receives the defendant's request for

2-5 appointment of counsel.

If proceedings have not been initiated, appointment is immediately after the 3rd or 1st day. This is confusing. Also what does “immediately” mean?

2-6 (i) Except as otherwise provided by this subsection, if an

2-7 indigent defendant is entitled to and requests appointed counsel

2-8 and if adversarial judicial proceedings have not been initiated

2-9 against the defendant, a court or the courts' designee authorized

2-10 under Article 26.04 to appoint counsel for indigent defendants in

2-11 the county shall appoint counsel immediately following the

2-12 expiration of three working days after the date on which the court

2-13 or the courts' designee receives the defendant's request for

2-14 appointment of counsel. If adversarial judicial proceedings are

2-15 initiated against the defendant before the expiration of the three

2-16 working days, the court or the courts' designee shall appoint

2-17 counsel as provided by Subsection (c). In a county with a

2-18 population of 250,000 or more, the court or the courts' designee

2-19 shall appoint counsel as required by this subsection immediately

2-20 following the expiration of one working day after the date on which

2-21 the court or the courts' designee receives the defendant's request

2-22 for appointment of counsel. If adversarial judicial proceedings

2-23 are initiated against the defendant before the expiration of the

2-24 one working day, the court or the courts' designee shall appoint

2-25 counsel as provided by Subsection (c).

But , if not jailed, appointment is by the first appearance or when adversarial proceeding begins. If they begin, what about the 3rd/1st day rule? If adversarial proceeding begins and (j) applies, may the appointment be the 3rd/1st day? [This says “notwithstanding”] Drafting that uses the word “notwithstanding” is poor drafting.

2-26 (j) Notwithstanding any other provision of this section, if

3-1 an indigent defendant is released from custody prior to the

3-2 appointment of counsel under this section, appointment of counsel

3-3 is not required until the defendant's first court appearance or

3-4 when adversarial judicial proceedings are initiated, whichever

3-5 comes first.

Substitution of counsel is permitted for good cause or if a different offense is charged. [See case law on the issue of what happens if the defendant objects.] See later provisions of the Texas Fair Defense Act for lawyer eligibility lists for different grades of crime. If the crime charged changes, the lawyer may not be qualified, or may be overqualified.

3-6 (k) A court or the courts' designee may without unnecessary

3-7 delay appoint new counsel to represent an indigent defendant for

3-8 whom counsel is appointed under Subsection (c) or (i) if:

3-9 (1) the defendant is subsequently charged in the case

3-10 with an offense different from the offense with which the defendant

3-11 was initially charged; and

3-12 (2) good cause to appoint new counsel is stated on the

3-13 record as required by Article 26.04(j)(2).

Duty to deliver person in custody to magistrate ASAP/48 hours.

3-14 SECTION 3. Subsection (a), Article 14.06, Code of Criminal

3-15 Procedure, is amended to read as follows:

3-16 (a) Except as provided by Subsection (b), in each case

3-17 enumerated in this Code, the person making the arrest or the person

3-18 having custody of the person arrested shall take the person

3-19 arrested or have him taken without unnecessary delay, but not later

3-20 than 48 hours after the person is arrested, before the magistrate

3-21 who may have ordered the arrest, before some magistrate of the

3-22 county where the arrest was made without an order, or, if necessary

3-23 to provide more expeditiously to the person arrested the warnings

3-24 described by Article 15.17 of this Code, before a magistrate in a

3-25 county bordering the county in which the arrest was made. The

3-26 magistrate shall immediately perform the duties described in

4-1 Article 15.17 of this Code.

The duty to deliver person in custody to magistrate is without delay/48 hours. Bail is required and appointment of attorney is dealt with.

Duties of magistrate. Notice, record, and interactive 2-way TV. [Internet interactive video should be considered. Does it qualify? It may be fairly cheap, and getting cheaper.]

If interactive TV is ok, why is it limited to the magistrate in the adjoining county. Can’t a magistrate in Dumas preside by TV with a defendant in Texarkana just as well as a magistrate 30 miles from Texarkana can preside over TV? Interactive TV might solve the rural Texas problem where it has been said that delay of many weeks is inevitable. If every jail has interactive TV, is the problem solved?

* * * * *

4-2 SECTION 4. Article 15.17, Code of Criminal Procedure, is

4-3 amended by amending Subsection (a) and adding Subsections (e) and

4-4 (f) to read as follows:

4-5 (a) In each case enumerated in this Code, the person making

4-6 the arrest or the person having custody of the person arrested

4-7 shall without unnecessary delay, but not later than 48 hours after

4-8 the person is arrested, take the person arrested or have him taken

4-9 before some magistrate of the county where the accused was arrested

4-10 or, if necessary to provide more expeditiously to the person

4-11 arrested the warnings described by this article, before a

4-12 magistrate in a county bordering the county in which the arrest was

4-13 made. The arrested person may be taken before the magistrate in

4-14 person or the image of the arrested person may be broadcast by

4-15 closed circuit television to the magistrate. The magistrate shall

4-16 inform in clear language the person arrested, either in person or

4-17 by closed circuit television, of the accusation against him and of

4-18 any affidavit filed therewith, of his right to retain counsel, of

4-19 his right to remain silent, of his right to have an attorney

4-20 present during any interview with peace officers or attorneys

4-21 representing the state, of his right to terminate the interview at

4-22 any time, [of his right to request the appointment of counsel if he

4-23 is indigent and cannot afford counsel,] and of his right to have an

4-24 examining trial. The magistrate shall also inform the person

4-25 arrested of the person's right to request the appointment of

4-26 counsel if the person cannot afford counsel. The magistrate shall

5-1 inform the person arrested of the procedures for requesting

5-2 appointment of counsel. If the person does not speak and

5-3 understand the English language or is deaf, the magistrate shall

5-4 inform the person in a manner consistent with Articles 38.30 and

5-5 38.31, as appropriate. The magistrate shall ensure that reasonable

5-6 assistance in completing the necessary forms for requesting

5-7 appointment of counsel is provided to the person at the same time.

5-8 If the person arrested is indigent and requests appointment of

5-9 counsel and if the magistrate is authorized under Article 26.04 to

5-10 appoint counsel for indigent defendants in the county, the

5-11 magistrate shall appoint counsel in accordance with Article 1.051.

5-12 If the magistrate is not authorized to appoint counsel, the

5-13 magistrate shall without unnecessary delay, but not later than 24

5-14 hours after the person arrested requests appointment of counsel,

5-15 transmit, or cause to be transmitted to the court or to the courts'

5-16 designee authorized under Article 26.04 to appoint counsel in the

5-17 county, the forms requesting the appointment of counsel. The

5-18 magistrate [He] shall also inform the person arrested that he is

5-19 not required to make a statement and that any statement made by him

5-20 may be used against him. The magistrate shall allow the person

5-21 arrested reasonable time and opportunity to consult counsel and

5-22 shall admit the person arrested to bail if allowed by law. A

5-23 closed circuit television system may not be used under this

5-24 subsection unless the system provides for a two-way communication

5-25 of image and sound between the arrested person and the magistrate.

5-26 A recording of the communication between the arrested person and

6-1 the magistrate shall be made. The recording shall be preserved

6-2 until the earlier of the following dates: (1) the date on which

6-3 the pretrial hearing ends; or (2) the 91st day after the date on

6-4 which the recording is made if the person is charged with a

6-5 misdemeanor or the 120th day after the date on which the recording

6-6 is made if the person is charged with a felony. The counsel for

6-7 the defendant may obtain a copy of the recording on payment of a

6-8 reasonable amount to cover costs of reproduction.

6-9 (e) In each case in which a person arrested is taken before

6-10 a magistrate as required by Subsection (a), a record shall be made

6-11 of:

6-12 (1) the magistrate informing the person of the

6-13 person's right to request appointment of counsel;

6-14 (2) the magistrate asking the person whether the

6-15 person wants to request appointment of counsel; and

6-16 (3) whether the person requested appointment of

6-17 counsel.

6-18 (f) A record required under Subsection (e) may consist of

6-19 written forms, electronic recordings, or other documentation as

6-20 authorized by procedures adopted in the county under Article

6-21 26.04(a).

Release on bond.

* * * * *

6-22 SECTION 5. (a) Chapter 17, Code of Criminal Procedure, is

6-23 amended by adding Article 17.033 to read as follows:

6-24 Art. 17.033. RELEASE ON BOND OF CERTAIN PERSONS ARRESTED

6-25 WITHOUT A WARRANT. (a) Except as provided by Subsection (c), a

6-26 person who is arrested without a warrant and who is detained in

7-1 jail must be released on bond, in an amount not to exceed $5,000,

7-2 not later than the 24th hour after the person's arrest if the

7-3 person was arrested for a misdemeanor and a magistrate has not

7-4 determined whether probable cause exists to believe that the person

7-5 committed the offense. If the person is unable to obtain a surety

7-6 for the bond or unable to deposit money in the amount of the bond,

7-7 the person must be released on personal bond.

7-8 (b) Except as provided by Subsection (c), a person who is

7-9 arrested without a warrant and who is detained in jail must be

7-10 released on bond, in an amount not to exceed $10,000, not later

7-11 than the 48th hour after the person's arrest if the person was

7-12 arrested for a felony and a magistrate has not determined whether

7-13 probable cause exists to believe that the person committed the

7-14 offense. If the person is unable to obtain a surety for the bond

7-15 or unable to deposit money in the amount of the bond, the person

7-16 must be released on personal bond.

But, state may ask to postpone release for 72 hours.

7-17 (c) On the filing of an application by the attorney

7-18 representing the state, a magistrate may postpone the release of a

7-19 person under Subsection (a) or (b) for not more than 72 hours after

7-20 the person's arrest. An application filed under this subsection

7-21 must state the reason a magistrate has not determined whether

7-22 probable cause exists to believe that the person committed the

7-23 offense for which the person was arrested.

Effective date. Also see effective dates at the end of the bill.

7-24 (b) Article 17.033, Code of Criminal Procedure, as added by

7-25 this Act, applies only to a person who is arrested on or after the

7-26 effective date of this Act. A person who is arrested before the

8-1 effective date of this Act is covered by the law in effect at the

8-2 time of the arrest, and the former law is continued in effect for

8-3 that purpose.

Standard appointment procedure. Rotation from a list of lawyers who sought to be approved for appointments and were approved. The list creation is covered later.

* * * * *

8-4 SECTION 6. Article 26.04, Code of Criminal Procedure, is

8-5 amended to read as follows:

8-6 Art. 26.04. PROCEDURES FOR APPOINTING [COURT SHALL APPOINT]

8-7 COUNSEL. (a) The judges of the county courts, statutory county

8-8 courts, and district courts trying criminal cases in each county,

8-9 by local rule, shall adopt and publish written countywide

8-10 procedures for timely and fairly appointing counsel for an indigent

8-11 defendant in the county arrested for or charged with a misdemeanor

8-12 punishable by confinement or a felony. The procedures must be

8-13 consistent with this article and Articles 1.051, 15.17, 26.05, and

8-14 26.052. A court shall appoint an attorney from a public

8-15 appointment list using a system of rotation, unless the court

8-16 appoints an attorney under Subsection (f), (h), or (i). The court

8-17 shall appoint attorneys from among the next five names on the

8-18 appointment list in the order in which the attorneys' names appear

8-19 on the list, unless the court makes a finding of good cause on the

8-20 record for appointing an attorney out of order. An attorney who is

8-21 not appointed in the order in which the attorney's name appears on

8-22 the list shall remain next in order on the list.

Details. Handled by the criminal court judges. Consistently and universally followed. Defendant confers with counsel before proceedings. Special rule for death penalty cases. Require lawyer to perform ethically and effectively.

8-23 (b) Procedures adopted under Subsection (a) shall:

8-24 (1) authorize only the judges of the county courts,

8-25 statutory county courts, and district courts trying criminal cases

8-26 in the county, or the judges' designee, to appoint counsel for

9-1 indigent defendants in the county;

9-2 (2) apply to each appointment of counsel made by a

9-3 judge or the judges' designee in the county;

9-4 (3) ensure that each indigent defendant in the county

9-5 who is charged with a misdemeanor punishable by confinement or with

9-6 a felony and who appears in court without counsel has an

9-7 opportunity to confer with appointed counsel before the

9-8 commencement of judicial proceedings;

9-9 (4) require appointments for defendants in capital

9-10 cases in which the death penalty is sought to comply with the

9-11 requirements under Article 26.052;

9-12 (5) ensure that each attorney appointed from a public

9-13 appointment list to represent an indigent defendant perform the

9-14 attorney's duty owed to the defendant in accordance with the

9-15 adopted procedures, the requirements of this code, and applicable

9-16 rules of ethics; and

9-17 (6) ensure that appointments are allocated among

9-18 qualified attorneys in a manner that is fair, neutral, and

9-19 nondiscriminatory.

Mandatory appointment in certain cases. Attorney who can speak defendant’s language.

9-20 (c) Whenever a [the] court or the courts' designee

9-21 authorized under Subsection (b) to appoint counsel for indigent

9-22 defendants in the county determines that a defendant charged with a

9-23 felony or a misdemeanor punishable by confinement [imprisonment] is

9-24 indigent or that the interests of justice require representation of

9-25 a defendant in a criminal proceeding, the court or the courts'

9-26 designee shall appoint one or more practicing attorneys to defend

10-1 the defendant in accordance with this subsection and the procedures

10-2 adopted under Subsection (a). If the court or the courts' designee

10-3 determines that the defendant does not speak and understand the

10-4 English language or that the defendant is deaf, the court or the

10-5 courts' designee shall make an effort to appoint an attorney who is

10-6 capable of communicating in a language understood by the defendant

10-7 [him].

How does a lawyer get on the list for appointment? Lawyers must apply, meet objective standards of the local judge, meet objective standards of the Texas Task Force on Indigent Defense [a state entity created pursuant to this law] and be approved by most local judges.

Local standards are established. There are to be standards established by the new state entity. Both standard must be met. No lawyer may be placed on the list for appointment unless the lawyer seeks inclusion on the list and meets the qualifications. The local judges, the Court of Appeals judges, and the Court of Criminal Appeals judges may no longer pretend that every lawyer is qualified. Judges may no longer pretend that they can compel lawyers to take appointments. Only lawyers who qualify may be appointed.

10-8 (d) A public appointment list from which an attorney is

10-9 appointed as required by Subsection (a) shall contain the names of

10-10 qualified attorneys, each of whom:

10-11 (1) applies to be included on the list;

10-12 (2) meets the objective qualifications specified by

10-13 the judges under Subsection (e);

10-14 (3) meets any applicable qualifications specified by

10-15 the Task Force on Indigent Defense; and

10-16 (4) is approved by a majority of the judges who

10-17 established the appointment list under Subsection (e).

Separate lists of qualified lawyers must be maintained for misdemeanors and felonies. Judges may agree to subdivide each of those categories by seriousness and have different qualifications for different grades of crime.

10-18 (e) In a county in which a court is required under

10-19 Subsection (a) to appoint an attorney from a public appointment

10-20 list:

10-21 (1) the judges of the county courts and statutory

10-22 county courts trying misdemeanor cases in the county, by formal

10-23 action:

10-24 (A) shall:

10-25 (i) establish a public appointment list of

10-26 attorneys qualified to provide representation in the county in

11-1 misdemeanor cases punishable by confinement; and

11-2 (ii) specify the objective qualifications

11-3 necessary for an attorney to be included on the list; and

11-4 (B) may establish, if determined by the judges

11-5 to be appropriate, more than one appointment list graduated

11-6 according to the degree of seriousness of the offense and the

11-7 attorneys' qualifications; and

11-8 (2) the judges of the district courts trying felony

11-9 cases in the county, by formal action:

11-10 (A) shall:

11-11 (i) establish a public appointment list of

11-12 attorneys qualified to provide representation in felony cases in

11-13 the county; and

11-14 (ii) specify the objective qualifications

11-15 necessary for an attorney to be included on the list; and

11-16 (B) may establish, if determined by the judges

11-17 to be appropriate, more than one appointment list graduated

11-18 according to the degree of seriousness of the offense and the

11-19 attorneys' qualifications.

Counties with public defenders. The public defender may be appointed. The public defender is an entity, not a person.

11-20 (f) In a county in which a public defender is appointed

11-21 under Article 26.044, the court or the courts' designee may appoint

11-22 the public defender to represent the defendant in accordance with

11-23 guidelines established for the public defender.

Alternative approaches if judges agree. Countywide, for misdemeanor, felony or both. Multicounty appointment list. This may be suitable for rural counties.

11-24 (g) A countywide alternative program for appointing counsel

11-25 for indigent defendants in criminal cases is established by a

11-26 formal action in which two-thirds of the judges of the courts

12-1 designated under this subsection vote to establish the alternative

12-2 program. An alternative program for appointing counsel in

12-3 misdemeanor and felony cases may be established in the manner

12-4 provided by this subsection by the judges of the county courts,

12-5 statutory county courts, and district courts trying criminal cases

12-6 in the county. An alternative program for appointing counsel in

12-7 misdemeanor cases may be established in the manner provided by this

12-8 subsection by the judges of the county courts and statutory county

12-9 courts trying criminal cases in the county. An alternative program

12-10 for appointing counsel in felony cases may be established in the

12-11 manner provided by this subsection by the judges of the district

12-12 courts trying criminal cases in the county. In a county in which

12-13 an alternative program is established:

Optional mixed plan/multicounty plan.

12-14 (1) the alternative program may:

12-15 (A) use a single method for appointing counsel

12-16 or a combination of methods; and

12-17 (B) use a multicounty appointment list using a

12-18 system of rotation; and

Mandatory qualifications for lawyers to be eligible and on the list. Fair allocation of appointments.

12-19 (2) the procedures adopted under Subsection (a) must

12-20 ensure that:

12-21 (A) attorneys appointed using the alternative

12-22 program to represent defendants in misdemeanor cases punishable by

12-23 confinement:

12-24 (i) meet specified objective

12-25 qualifications, which may be graduated according to the degree of

12-26 seriousness of the offense, for providing representation in

13-1 misdemeanor cases punishable by confinement; and

13-2 (ii) are approved by a majority of the

13-3 judges of the county courts and statutory county courts trying

13-4 misdemeanor cases in the county;

13-5 (B) attorneys appointed using the alternative

13-6 program to represent defendants in felony cases:

13-7 (i) meet specified objective

13-8 qualifications, which may be graduated according to the degree of

13-9 seriousness of the offense, for providing representation in felony

13-10 cases; and

13-11 (ii) are approved by a majority of the

13-12 judges of the district courts trying felony cases in the county;

13-13 (C) appointments for defendants in capital cases

13-14 in which the death penalty is sought comply with the requirements

13-15 of Article 26.052; and

The allocation of appointments is less structured than in the standard approach. It might be used to appoint one lawyer to several cases, followed by appointing a different lawyer to several cases. That might work well in a rural county, or group of rural counties if distant travel is required. Lawyers may not wish to take just one case at a time. Batches of cases may be more practical. This alternative is less structured and may be adaptable to those situations.

13-16 (D) appointments are reasonably and impartially

13-17 allocated among qualified attorneys.

Approval by the presiding judge of the administrative judicial region.

13-18 (h) In a county in which an alternative program for

13-19 appointing counsel is established as provided by Subsection (g) and

13-20 is approved by the presiding judge of the administrative judicial

13-21 region, a court or the courts' designee may appoint an attorney to

13-22 represent an indigent defendant by using the alternative program.

No contracts or employees that increase the cost without approval of the commissioners.

13-23 In establishing an alternative program under Subsection (g), the

13-24 judges of the courts establishing the program may not, without the

13-25 approval of the commissioners court, obligate the county by

13-26 contract or by the creation of new positions that cause an increase

14-1 in expenditure of county funds.

Lawyers must be from a county in the administrative judicial region. This provision is nonsensical. Someone must have thought that it was a good idea. It wasn’t. Texas lawyers are licensed by and for the state of Texas. They live and work where they choose, in or out of Texas. They are not “from a county.” What does “from a county” mean? Is it where the lawyer lives, where the lawyer has an office, where the lawyer was born, where the lawyer has a ranch or, where the lawyer is at the moment? The concept does not make sense. Even if it did, there is no purpose for it. A lawyer may live and work one mile over the county line and two miles from the county seat, but be in a different county and administrative judicial region. Another lawyer may live 300 miles away, but be in the administrative judicial region. What difference does the region make? It makes no sense to appoint the lawyer 300 miles away but not the local lawyer just because of the region’s boundaries.

Do you know what region you are in? Many lawyers don’t. Many lawyers don’t know what an administrative judicial region is. This provision is likely to be ignored or repealed. It should be repealed.

14-2 (i) A court or the courts' designee required under

14-3 Subsection (c) to appoint an attorney to represent a defendant

14-4 accused of a felony may appoint an attorney from any county located

14-5 in the court's administrative judicial region.

Lawyers will have to talk to their clients, and do so promptly. Will they have to listen as well?

14-6 (j) An attorney appointed under this article [subsection]

14-7 shall:

14-8 (1) make every reasonable effort to contact the

14-9 defendant not later than the end of the first working day after the

14-10 date on which the attorney is appointed and to interview the

14-11 defendant as soon as practicable after the attorney is appointed;

14-12 and

14-13 (2) represent the defendant until charges are

14-14 dismissed, the defendant is acquitted, appeals are exhausted, or

14-15 the attorney is relieved of his duties by the court or replaced by

14-16 other counsel after a finding of good cause is entered on the

14-17 record.

A lawyer who doesn’t meet promptly with the client may be removed. If the lawyer does that intentionally or repeatedly, the lawyer may be removed from the list for future appointments.

14-18 (k) A court may replace an attorney who violates Subsection

14-19 (j)(1) with other counsel. A majority of the judges of the county

14-20 courts and statutory county courts or the district courts, as

14-21 appropriate, trying criminal cases in the county may remove from

14-22 consideration for appointment an attorney who intentionally or

14-23 repeatedly violates Subsection (j)(1).

Procedure for indigency determinations. The rules apply to all. Bail isn’t a factor.

14-24 (l) Procedures adopted under Subsection (a) must include

14-25 procedures and financial standards for determining whether a

14-26 defendant is indigent. The procedures and standards shall apply to

15-1 each defendant in the county equally, regardless of whether the

15-2 defendant is in custody or has been released on bail.

Substance of indigency determinations. Delegation of the determination. The rules apply to all. Bail isn’t a factor, or is it?

15-3 (m) [(b)] In determining whether a defendant is indigent,

15-4 the court or the courts' designee may [shall] consider [such

15-5 factors as] the defendant's income, source of income, assets,

15-6 property owned, outstanding obligations, necessary expenses, the

15-7 number and ages of dependents, and spousal income that is available

15-8 to the defendant[, and whether the defendant has posted or is

15-9 capable of posting bail]. The court or the courts' designee may

15-10 not consider whether [deny appointed counsel to a defendant solely

15-11 because] the defendant has posted or is capable of posting bail,

15-12 except to the extent that it reflects the defendant's financial

15-13 circumstances as measured by the considerations listed in this

15-14 subsection.

Indigency request.

15-15 (n) [(c)] A defendant who requests a determination of

15-16 indigency and appointment of counsel shall:

15-17 (1) complete under oath a questionnaire concerning his

15-18 financial resources;

15-19 (2) respond under oath to an examination regarding his

15-20 financial resources by the judge or magistrate responsible for

15-21 determining whether the defendant is indigent; or

15-22 (3) complete the questionnaire and respond to

15-23 examination by the judge or magistrate.

Oath.

15-24 (o) [(d)] Before making a determination of whether a

15-25 defendant is indigent, the court shall request the defendant to

15-26 sign under oath a statement substantially in the following form:

16-1 "On this ________ day of ____________, 20 [19]___, I have

16-2 been advised by the (name of the court) Court of my right to

16-3 representation by counsel in the trial of the charge pending

16-4 against me. I certify that I am without means to employ

16-5 counsel of my own choosing and I hereby request the court to

16-6 appoint counsel for me. (signature of the defendant)"

16-7 (p) A defendant who is determined by the court to be

16-8 indigent is presumed to remain indigent for the remainder of the

16-9 proceedings in the case unless a material change in the defendant's

16-10 financial circumstances occurs. [(e)] If there is a material

16-11 change in financial circumstances after a determination of

16-12 indigency or nonindigency is made, the defendant, the defendant's

16-13 counsel, or the attorney representing the state may move for

16-14 reconsideration of the determination.

16-15 (q) [(f)] A written or oral statement elicited under this

16-16 article or evidence derived from the statement may not be used for

16-17 any purpose, except to determine the defendant's indigency or to

16-18 impeach the direct testimony of the defendant. This subsection

16-19 does not prohibit prosecution of the defendant under Chapter 37,

16-20 Penal Code.

The next provision may be the best gem in this statute. Why is it in the law? Imagine the tales that caused the Texas legislature to consider it necessary.[36] What does this law say about what the Texas legislature thinks of Texas judges? Note the word “solely.” If this statute is needed, it needs to be amended to say that it can’t be a reason or any part of a reason. Not at all. Never.

16-21 (r) A court may not threaten to arrest or incarcerate a

16-22 person solely because the person requests the assistance of

16-23 counsel.

Public Defender in 4x4 County. [A county with 4 district courts and 4 county courts] “Public defender” is an entity, not an individual. Multicounty public defender.

* * * * *

16-24 SECTION 7. Article 26.044, Code of Criminal Procedure, is

16-25 amended to read as follows:

16-26 Art. 26.044. PUBLIC DEFENDER [IN COUNTY WITH FOUR COUNTY

17-1 COURTS AND FOUR DISTRICT COURTS]. (a) In this chapter, "public

17-2 defender" means a governmental entity or nonprofit corporation:

17-3 (1) operating under a written agreement with a

17-4 governmental entity, other than an individual judge or court;

17-5 (2) using public funds; and

17-6 (3) providing legal representation and services to

17-7 indigent defendants accused of a crime or juvenile offense, as

17-8 those terms are defined by Section 71.001, Government Code.

A judicial request is required to establish a public defender.

17-9 (b) The commissioners court of any county, on written

17-10 approval of a judge of a county court, statutory county court, or

17-11 district court trying criminal cases in the county, [having four

17-12 county courts and four district courts] may appoint a governmental

17-13 entity or nonprofit corporation [one or more attorneys] to serve as

17-14 a public defender. The commissioners courts of two or more

17-15 counties may enter into a written agreement to jointly appoint and

17-16 fund a regional [A] public defender [serves at the pleasure of the

17-17 commissioners court]. In appointing a public defender under this

17-18 subsection, the commissioners court shall specify or the

17-19 commissioners courts shall jointly specify, if appointing a

17-20 regional public defender:

17-21 (1) the duties of the public defender;

17-22 (2) the types of cases to which the public defender

17-23 may be appointed under Article 26.04(f) and the courts in which the

17-24 public defender may be required to appear;

17-25 (3) whether the public defender is appointed to serve

17-26 a term or serve at the pleasure of the commissioners court or the

18-1 commissioners courts; and

18-2 (4) if the public defender is appointed to serve a

18-3 term, the term of appointment and the procedures for removing the

18-4 public defender.

Open solicitation of proposals. Note the maximum caseload requirement.

18-5 (c) Before appointing a public defender under Subsection

18-6 (b), the commissioners court or commissioners courts shall solicit

18-7 proposals for the public defender. A proposal must include:

18-8 (1) a budget for the public defender, including

18-9 salaries;

18-10 (2) a description of each personnel position,

18-11 including the chief public defender position;

18-12 (3) the maximum allowable caseloads for each attorney

18-13 employed by the proponent;

18-14 (4) provisions for personnel training;

18-15 (5) a description of anticipated overhead costs for

18-16 the public defender; and

18-17 (6) policies regarding the use of licensed

18-18 investigators and expert witnesses by the proponent.

Quality representation matters.

18-19 (d) After considering each proposal for the public defender

18-20 submitted by a governmental entity or nonprofit corporation, the

18-21 commissioners court or commissioners courts shall select a proposal

18-22 that reasonably demonstrates that the proponent will provide

18-23 adequate quality representation for indigent defendants in the

18-24 county or counties.

Not just cost.

18-25 (e) The total cost of the proposal may not be the sole

18-26 consideration in selecting a proposal.

An experienced chief public defender is required.

19-1 (f) [(b)] To be eligible for appointment as a public

19-2 defender, the governmental entity or nonprofit corporation [a

19-3 person] must be directed by a chief public defender who:

19-4 (1) is [be] a member of the State Bar of Texas;

19-5 (2) has [have] practiced law for at least three years

19-6 [one year]; and

19-7 (3) has substantial [have] experience in the practice

19-8 of criminal law.

Pay.

19-9 (g) A [(c) The] public defender is entitled to receive

19-10 funds for personnel costs and expenses incurred in operating as a

19-11 public defender in amounts [an annual salary in an amount] fixed by

19-12 the commissioners court and paid out of the appropriate county

19-13 fund, or jointly fixed by the commissioners courts and

19-14 proportionately paid out of each appropriate county fund if the

19-15 public defender serves more than one county.

Employees.

19-16 (h) A public defender may employ attorneys, licensed

19-17 investigators, and other personnel necessary to perform the duties

19-18 of the public defender as specified by the commissioners court or

19-19 commissioners courts under Subsection (b)(1).

Full time. No private practice. No bribes.

19-20 (i) [(d)] Except as authorized by this article, the chief

19-21 [a] public defender or an attorney employed by a public defender

19-22 may not:

19-23 (1) engage in the private practice of criminal law; or

19-24 (2) accept anything of value not authorized by this

19-25 article for services rendered under this article.

Public defender may decline an appointment, i.e., They may say “no” and mean “no” if:

ethics require, conflicts require, resources require, caseload requires, or for other good cause.

This is plain good sense. It restates ethical requirements. It restates the Texas Disciplinary Rules of Professional Conduct. Yet, it is amazing. It is amazing because the Texas legislature recognizes legal ethics, good sense, and the constitutional rights of the defendant, while those who preside over courts, and those who are responsible for lawyer and judicial discipline did not. For Texans, this legislation is a breath of fresh air. The legislature gave up on the judiciary and the State Bar of Texas and did it themselves. Praise be.

This should also be a guide to lawyers who are not public defenders, including lawyers appointed for one case and contract lawyers. These guidelines should serve as informal guidance for those lawyers. The same ethical, constitutional, and practical considerations are applicable to them. The task force should incorporate them into its standards.

19-26 (j) A public defender may refuse an appointment under

20-1 Article 26.04(f) if:

20-2 (1) a conflict of interest exists;

20-3 (2) the public defender has insufficient resources to

20-4 provide adequate representation for the defendant;

20-5 (3) the public defender is incapable of providing

20-6 representation for the defendant in accordance with the rules of

20-7 professional conduct; or

20-8 (4) the public defender shows other good cause for

20-9 refusing the appointment.

Removal for violation of law.

20-10 (k) [(e)] The judge may remove a public defender who

20-11 violates a provision of Subsection (i) [(d) of this article].

Either the public defender or an attorney will represent a defendant in 4x4 counties.

20-12 (l) [(f) A public defender or an attorney appointed by a

20-13 court of competent jurisdiction shall represent each indigent

20-14 person who is charged with a criminal offense in a county having at

20-15 least four county courts and at least four district courts and each

20-16 indigent minor who is a party to a juvenile delinquency proceeding

20-17 in the county.]

Indigent? This is troubling. Should the lawyer for the indigent have this role? Is there a conflict of interest? Does it taint or destroy a proper attorney-client relationship? Shouldn’t this be done by another entity? What happens to attorney-client privilege? Note that the statute says “may.” If it is unethical, or inappropriate, it should not be done. Public defenders should carefully consider the ethical and practical issues before the situation arises. The Task Force should address this.

20-18 [(g)] A public defender may investigate the financial

20-19 condition of any person the public defender is appointed to

20-20 represent. The defender shall report the results of the

20-21 investigation to the appointing judge. The judge may hold a

20-22 hearing to determine if the person is indigent and entitled to

20-23 representation under this article.

An appointed lawyer who is not the public defender is paid. A good idea.

20-24 (m) [(h)] If it is necessary that an attorney other than a

20-25 public defender be [is] appointed, the attorney is entitled to the

20-26 compensation provided by Article 26.05 of this code.

Substitution of lawyer and pay. This is easy, but consider a fundamental flaw in the Texas system. An appointed lawyer is appointed through appeal. Some lawyers know trial law. Some know appeals. Some know both. Some lawyers who seek and accept indigent criminal appointments don’t have the competence to handle an appeal. In that circumstance, a different lawyer should represent the defendant on appeal, with the assistance of the trial lawyer.

Also consider that a lawyer may be barred from claiming on appeal that the lawyer who is making the point was personally ineffective. Some rulings outside of Texas have held that self criticism is not ethically permitted. Yet, the defendant is entitled to make the claim. The lawyer who tried the case can’t make it. Clearly there may be a need for substitution or addition of counsel for the appeal. Substitution should be routinely considered, and sometimes done. At the trial level there may be a variety of reasons for a change of lawyer.

21-1 [(i) At any stage of the proceeding, including appeal or

21-2 other postconviction proceedings, the judge may appoint another

21-3 attorney to represent the person. The substitute attorney is

21-4 entitled to the compensation provided by Article 26.05 of this

21-5 code.]

26.05 generally applies.

21-6 [(j) Except for the provisions relating to daily appearance

21-7 fees, Article 26.05 of this code applies to a public defender

21-8 appointed under this article.]

Pay.

* * * * *

21-9 SECTION 8. Article 26.05, Code of Criminal Procedure, is

21-10 amended to read as follows:

Pay takes into account some traditional factors for legal fees.

21-11 Art. 26.05. COMPENSATION OF COUNSEL APPOINTED TO DEFEND.

Habeas is included. See comment to follow on PDR.

21-12 (a) A counsel, other than an attorney with a public defender

21-13 [defender's office], appointed to represent a defendant in a

21-14 criminal proceeding, including a habeas corpus hearing, shall be

21-15 [reimbursed for reasonable expenses incurred with prior court

21-16 approval for purposes of investigation and expert testimony and

21-17 shall be] paid a reasonable attorney's fee for performing the

21-18 following services, based on the time and labor required, the

21-19 complexity of the case, and the experience and ability of the

21-20 appointed counsel:

Court time is paid whether it is reasonable and necessary or not. If the judge wastes the lawyer’s time, the lawyer is paid.

Be sure a docket entry is made.

A lawyer is paid for depositions and the like.

21-21 (1) time spent in court making an appearance on behalf

21-22 of the defendant as evidenced by a docket entry, time spent in

21-23 trial, and [or] time spent in a proceeding in which sworn oral

21-24 testimony is elicited;

Lawyers are paid for preparation, office work, etc. out of court. This is a good idea. Civil lawyers are familiar with this concept, as are clients.

21-25 (2) reasonable and necessary time spent out of court

21-26 on the case, supported by any documentation that the court

22-1 requires; [and]

Appellate work is paid. Appearing in the appellate court is paid. Is this a new concept? Yikes! Say it ain’t so! Some courts of appeals are over 300 miles from some courthouse in the district. Traveling there without pay or reimbursement is not reasonable. Being paid is reasonable. Note that appellate work related to the Court of Criminal Appeals is paid. Does that mean that the Martin Peterson would be paid for preparing a PDR? The Court of Criminal Appeals has held that a lawyer who filed a PDR (Petition for Discretionary Review) won’t be paid. See Peterson v. Jones 894 S.W.2d 370 (Tex.Crim.App. en banc 1995) Is there any proper legal service that is no longer paid?

22-2 (3) preparation of an appellate brief and preparation

22-3 and presentation of oral argument to a court of appeals or the

22-4 Court of Criminal Appeals; and

Rehearing. Of course it is paid work. As is oral argument on it (see prior paragraph).

22-5 (4) preparation of a motion for rehearing.

Judges adopt a fee schedule and let the commissioners know.

22-6 (b) All payments made under this article shall be paid in

22-7 accordance with a schedule of fees adopted by formal action of the

22-8 judges of the county courts, statutory county courts, and district

22-9 courts trying criminal cases in [county and district criminal court

22-10 judges within] each county. On adoption of a schedule of fees as

22-11 provided by this subsection, a copy of the schedule shall be sent

22-12 to the commissioners court of the county[, except that in a county

22-13 with only one judge with criminal jurisdiction the schedule will be

22-14 adopted by the administrative judge for that judicial district].

The fee schedule shows a range, and provides a form which the lawyer must complete. Note that willingness of lawyers to work for the fee is a specified factor. Note that charitable or altruistic motive is not a factor. Note that reasonable overhead costs are a specified factor. That may be a shock to some judges. In the 1990s a chief justice of a court of appeals stated during oral argument that the county commissioners in Marfa didn’t want to pay over $25 per hour. He thought that was that. He didn’t seem to comprehend (1) that overhead exceeds $25 per hour so the lawyer was receiving less than nothing and that (2) the desire of the county commissioners does not determine the price of lawyers any more than it determines (a) the price of the beans that the prisoners are fed, (b) the price of electricity in the courthouse, (c) the price of gas for the sherriff’s patrol car, or (d) the price of legal pads for the judge. The simple concepts of this statute are revolutionary in Texas. Beware of judges who don’t believe in paying a reasonable fee or obeying the law. Lawyers may have to decline to volunteer for appointments unless the judges comply with the law.

22-15 (c) Each fee schedule adopted shall state reasonable [will

22-16 include a] fixed rates or [rate,] minimum and maximum hourly rates,

22-17 taking into consideration reasonable and necessary overhead costs

22-18 and the availability of qualified attorneys willing to accept the

22-19 stated rates, [and daily rates] and shall [will] provide a form for

22-20 the appointed counsel to itemize [reporting] the types of services

22-21 performed [in each one]. No payment shall be made under this

22-22 article [section] until the form for itemizing [reporting] the

22-23 services performed is submitted to the judge presiding over the

22-24 proceedings and the judge approves the payment. . . .

There is appeal of denial of a fee. Appeal is to the presiding judge of the administrative judicial region. Fees that are approved by that judge must be paid in 45 days. Where is the statutory requirement for the time for payment if the regular trial judge approves it to begin with? What happens if the trial judge is also the presiding judge of the judicial administrative region?

In rural Texas, the presiding judge will have the ability to approve fees and bring a county up to a reasonable standard. The local elected judge may not want to do that because the judge may fear retaliation from the commissioners. Appeal may give the local judge political cover. The local judge may like it. It might be done with a wink and a nod. On the other hand, the local judge may hate it and retaliate against the lawyer who appeals.

There is no provision for traditional appellate review of fees, but that been done in other states, and Martin Peterson brought such a case in Texas. [See Peterson v. Jones 894 S.W.2d 370 (Tex.Crim.App. en banc 1995)] It is surprising that it hasn’t been done more in Texas. Clearly it was needed. Other anticipated courses from YouKnowItAll.com on economic issues of indigent defense will include some of the cases from other states.

. . . If the judge

22-25 disapproves the requested amount of payment, the judge shall make

22-26 written findings stating the amount of payment that the judge

23-1 approves and each reason for approving an amount different from the

23-2 requested amount. An attorney whose request for payment is

23-3 disapproved may appeal the disapproval by filing a motion with the

23-4 presiding judge of the administrative judicial region. On the

23-5 filing of a motion, the presiding judge of the administrative

23-6 judicial region shall review the disapproval of payment and

23-7 determine the appropriate amount of payment. In reviewing the

23-8 disapproval, the presiding judge of the administrative judicial

23-9 region may conduct a hearing. Not later than the 45th day after

23-10 the date an application for payment of a fee is submitted under

23-11 this article, the commissioners court shall pay to the appointed

23-12 counsel the amount that is approved by the presiding judge of the

23-13 administrative judicial region [and approved by the court] and that

23-14 is in accordance with the fee schedule for that county.

Reasonable and necessary expenses are paid. Investigation and expert expenses are paid. This shouldn’t be new or remarkable. In some places, it is both. Some judges won’t want to obey the law. The may have to be compelled to do so. Remedies obtained through litigation in other states will be covered in future courses at YouKnowItAll.com. Note the “prior approval” and “no prior approval” cross references. Don’t casually assume that judges will follow the letter or spirit of the law and approve expenses.

23-15 (d) A counsel in a noncapital case, other than an attorney

23-16 with a public defender, appointed to represent a defendant under

23-17 this code shall be reimbursed for reasonable and necessary

23-18 expenses, including expenses for investigation and for mental

23-19 health and other experts. Expenses incurred with prior court

23-20 approval shall be reimbursed in the same manner provided for

23-21 capital cases by Articles 26.052(f) and (g), and expenses incurred

23-22 without prior court approval shall be reimbursed in the manner

23-23 provided for capital cases by Article 26.052(h).

A lawyer who submits false claims may lose the right to potential future appointments.

23-24 (e) A majority of the judges of the county courts and

23-25 statutory county courts or the district courts, as appropriate,

23-26 trying criminal cases in the county may remove an attorney from

24-1 consideration for appointment if, after a hearing, it is shown that

24-2 the attorney submitted a claim for legal services not performed by

24-3 the attorney.

The county pays. The cost is a court cost. Will the defendant have to pay for it? Is this just a loan to the defendant? If so, why doesn’t the defendant get to pick the lawyer and approve the fee and expenses?

24-4 (f) All payments made under this article shall be paid from

24-5 the general fund of the county in which the prosecution was

24-6 instituted or habeas corpus hearing held and may be included as

24-7 costs of court.

Defendant co-payment. This has troubling implications. Who is paying. Who is in control? What is the effect on the attorney-client relationship?

24-8 (g) [(e)] If the court determines that a defendant has

24-9 financial resources that enable him to offset in part or in whole

24-10 the costs of the legal services provided, including any expenses

24-11 and costs, the court shall order the defendant to pay during the

24-12 pendency of the charges or, if convicted, as court costs the amount

24-13 that it finds the defendant is able to pay.

Pay directly to third parties.

24-14 (h) [(f)] Reimbursement of expenses incurred for purposes of

24-15 investigation or expert testimony may be paid directly to a private

24-16 investigator licensed under Chapter 1702, Occupations Code, [the

24-17 Private Investigators and Private Security Agencies Act (Article

24-18 4413(29bb), Vernon's Texas Civil Statutes)] or to an expert witness

24-19 in the manner designated by appointed counsel and approved by the

24-20 court.

Mandatory Standards for lawyers in death penalty cases. Substantial experience is required, at least for half of a two lawyer team. It may be harder for a judge who wants the defendant to die to appoint a bad lawyer. The pool of death penalty defense lawyers may change with more who are competant and fewer who are incompetent. That may have long term effects on the criminal defense bar. Fees may be higher because qualified lawyers will be relatively scarce. Higher fees will attract lawyers.

Lawyers who take these cases deserve to be paid, and paid well. Most lawyers won’t do it at any price.

* * * * *

24-21 SECTION 9. Article 26.052, Code of Criminal Procedure, is

24-22 amended by amending Subsections (d) and (e) and adding Subsection

24-23 (m) to read as follows:

24-24 (d)(1) The committee shall adopt standards for the

24-25 qualification of attorneys to be appointed to represent indigent

24-26 defendants in capital cases in which the death penalty is sought

25-1 [for appointment to death penalty cases].

25-2 (2) The standards must require that an attorney

25-3 appointed to a death penalty case:

25-4 (A) be a member of the State Bar of Texas;

25-5 (B) exhibit proficiency and commitment to

25-6 providing quality representation to defendants in death penalty

25-7 cases;

25-8 (C) have at least five years of experience in

25-9 criminal litigation;

25-10 (D) have tried to a verdict as lead defense

25-11 counsel a significant number of felony cases, including homicide

25-12 trials and other trials for offenses punishable as second or first

25-13 degree felonies or capital felonies;

25-14 (E) have trial experience in:

25-15 (i) the use of and challenges to mental

25-16 health or forensic expert witnesses; and

25-17 (ii) investigating and presenting

25-18 mitigating evidence at the penalty phase of a death penalty trial;

25-19 and

25-20 (F) have participated in continuing legal

25-21 education courses or other training relating to criminal defense in

25-22 death penalty cases.

25-23 (3) The committee shall prominently post the standards

25-24 in each district clerk's office in the region with a list of

25-25 attorneys qualified for appointment.

25-26 (4) Not later than the second anniversary of the date

26-1 an attorney is placed on the list of attorneys qualified for

26-2 appointment in death penalty cases and each year following the

26-3 second anniversary, the attorney must present proof to the

26-4 committee that the attorney has successfully completed the minimum

26-5 continuing legal education requirements of the State Bar of Texas,

26-6 including a course or other form of training relating to the

26-7 defense of death penalty cases. The committee shall remove the

26-8 attorney's name from the list of qualified attorneys if the

26-9 attorney fails to provide the committee with proof of completion of

26-10 the continuing legal education requirements.

26-11 (e) The presiding judge of the district court in which a

26-12 capital felony case is filed shall appoint two attorneys, at least

26-13 one of whom must be qualified under this chapter, [counsel] to

26-14 represent an indigent defendant as soon as practicable after

26-15 charges are filed, unless the state gives notice in writing that

26-16 the state will not seek the death penalty [if the death penalty is

26-17 sought in the case. The judge shall appoint lead trial counsel

26-18 from the list of attorneys qualified for appointment. The judge

26-19 shall appoint a second counsel to assist in the defense of the

26-20 defendant, unless reasons against the appointment of two counsel

26-21 are stated in the record].

26-22 (m) The local selection committee shall annually review the

26-23 list of attorneys posted under Subsection (d) to ensure that each

26-24 listed attorney satisfies the requirements under this chapter.

Follow the money. This is a source of funds. It is a sliver, but a noticeable sliver. It is a start.

* * * * *

26-25 SECTION 10. Subsection (h), Article 102.075, Code of

26-26 Criminal Procedure, is amended to read as follows:

27-1 (h) The comptroller shall deposit money received under this

27-2 article to the credit of the following accounts in the general

27-3 revenue fund according to the specified percentages:

27-4 NAME OF ACCOUNT PERCENTAGE

27-5 abused children's counseling 0.02%

27-6 crime stoppers assistance 0.6%

27-7 breath alcohol testing 1.28%

27-8 Bill Blackwood Law Enforcement

27-9 Management Institute 5.04%

27-10 law enforcement officers standards and education 11.63%

27-11 comprehensive rehabilitation 12.37%

27-12 operator's and chauffeur's license 25.9%

27-13 criminal justice planning 29.18%

27-14 fair defense account 13.98%

Juvenile appointment changes.

* * * * *

27-15 SECTION 11. Chapter 51, Family Code, is amended by adding

27-16 Section 51.101 to read as follows:

27-17 Sec. 51.101. APPOINTMENT OF COUNSEL PLAN. (a) The juvenile

27-18 board in each county shall adopt a plan that:

27-19 (1) specifies the qualifications necessary for an

27-20 attorney to be included on an appointment list from which attorneys

27-21 are appointed to represent children in proceedings under this

27-22 title; and

27-23 (2) establishes procedures for:

27-24 (A) including attorneys on the appointment list

27-25 and removing attorneys from the list; and

27-26 (B) appointing attorneys from the appointment

28-1 list to individual cases.

28-2 (b) A plan adopted under Subsection (a) must:

28-3 (1) to the extent practicable, comply with the

28-4 requirements of Article 26.04, Code of Criminal Procedure, except

28-5 that:

28-6 (A) the income and assets of the child's parent

28-7 or other person responsible for the child's support must be used in

28-8 determining whether the child is indigent; and

28-9 (B) any alternative plan for appointing counsel

28-10 is established by the juvenile board in the county; and

28-11 (2) recognize the differences in qualifications and

28-12 experience necessary for appointments to cases in which:

28-13 (A) the allegation is:

28-14 (i) conduct indicating a need for

28-15 supervision;

28-16 (ii) delinquent conduct, and commitment to

28-17 the Texas Youth Commission is not an authorized disposition; or

28-18 (iii) delinquent conduct, and commitment

28-19 to the Texas Youth Commission without a determinate sentence is an

28-20 authorized disposition;

28-21 (B) determinate sentence proceedings have been

28-22 initiated; or

28-23 (C) proceedings for discretionary transfer to

28-24 criminal court have been initiated.

Definitions.

* * * * *

28-25 SECTION 12. Section 71.001, Government Code, is amended to

28-26 read as follows:

29-1 Sec. 71.001. DEFINITIONS. In this chapter:

29-2 (1) "Ad hoc assigned counsel program" means a system

29-3 under which private attorneys, acting as independent contractors

29-4 and compensated with public funds, are individually appointed to

29-5 provide legal representation and services to a particular indigent

29-6 defendant accused of a crime or juvenile offense.

29-7 (2) "Chair" means the chair of the council.

29-8 (3) "Contract defender program" means a system under

29-9 which private attorneys, acting as independent contractors and

29-10 compensated with public funds, are engaged to provide legal

29-11 representation and services to a group of unspecified indigent

29-12 defendants who appear before a particular court or group of courts.

29-13 (4) [(2)] "Council" means the Texas Judicial Council.

29-14 (5) "Crime" means:

29-15 (A) a misdemeanor punishable by confinement; or

29-16 (B) a felony.

29-17 (6) "Defendant" means a person accused of a crime or a

29-18 juvenile offense.

29-19 (7) "Indigent defense support services" means criminal

29-20 defense services that:

29-21 (A) are provided by licensed investigators,

29-22 experts, or other similar specialists, including forensic experts

29-23 and mental health experts; and

29-24 (B) are reasonable and necessary for appointed

29-25 counsel to provide adequate representation to indigent defendants.

29-26 (8) "Juvenile offense" means conduct committed by a

30-1 person while younger than 17 years of age that constitutes:

30-2 (A) a misdemeanor punishable by confinement; or

30-3 (B) a felony.

30-4 (9) "Public defender" has the meaning assigned by

30-5 Article 26.044(a), Code of Criminal Procedure.

Information allows oversight. Data must be provided to the state.

* * * * *

30-6 SECTION 13. Subchapter C, Chapter 71, Government Code, is

30-7 amended by adding Section 71.0351 to read as follows:

30-8 Sec. 71.0351. INDIGENT DEFENSE INFORMATION. (a) Not later

30-9 than January 1 of each year, in each county, a copy of all formal

30-10 and informal rules and forms that describe the procedures used in

30-11 the county to provide indigent defendants with counsel in

30-12 accordance with the Code of Criminal Procedure, including the

30-13 schedule of fees required under Article 26.05 of that code, shall

30-14 be prepared and sent to the Office of Court Administration of the

30-15 Texas Judicial System in the form and manner prescribed by the

30-16 office. Except as provided by Subsection (b), the local

30-17 administrative district judge in each county, or the person

30-18 designated by the judge, shall prepare and send to the office of

30-19 court administration a copy of all rules and forms adopted by the

30-20 judges of the district courts trying felony cases in the county.

30-21 Except as provided by Subsection (b), the local administrative

30-22 statutory county court judge in each county, or the person

30-23 designated by the judge, shall prepare and send to the office of

30-24 court administration a copy of all rules and forms adopted by the

30-25 judges of the county courts and statutory county courts trying

30-26 misdemeanor cases in the county.

31-1 (b) If the judges of two or more levels of courts adopt the

31-2 same formal and informal rules and forms as described by Subsection

31-3 (a), the local administrative judge serving the courts having

31-4 jurisdiction over offenses with the highest classification of

31-5 punishment, or the person designated by the judge, shall prepare

31-6 and send to the Office of Court Administration of the Texas

31-7 Judicial System a copy of the rules and forms.

31-8 (c) In each county, the county auditor, or the person

31-9 designated by the commissioners court if the county does not have a

31-10 county auditor, shall prepare and send to the Office of Court

31-11 Administration of the Texas Judicial System in the form and manner

31-12 prescribed by the office and on a monthly, quarterly, or annual

31-13 basis, with respect to legal services provided in the county to

31-14 indigent defendants during each fiscal year, information showing

31-15 the total amount expended by the county to provide indigent defense

31-16 services and an analysis of the amount expended by the county:

31-17 (1) in each district, county, statutory county, and

31-18 appellate court;

31-19 (2) in cases for which a private attorney is appointed

31-20 for an indigent defendant;

31-21 (3) in cases for which a public defender is appointed

31-22 for an indigent defendant;

31-23 (4) in cases for which counsel is appointed for an

31-24 indigent juvenile under Section 51.10(f), Family Code; and

31-25 (5) for investigation expenses, expert witness

31-26 expenses, or other litigation expenses.

32-1 (d) As a duty of office, each district and county clerk

32-2 shall cooperate with the county auditor or the person designated by

32-3 the commissioners court and the commissioners court in retrieving

32-4 information required to be sent to the Office of Court

32-5 Administration of the Texas Judicial System under this section and

32-6 under a reporting plan developed by the Task Force on Indigent

32-7 Defense under Section 71.061(a).

32-8 (e) On receipt of information required under this section,

32-9 the Office of Court Administration of the Texas Judicial System

32-10 shall forward the information to the Task Force on Indigent

32-11 Defense.

A new state entity will have some power, authority, and responsibility.

* * * * *

32-12 SECTION 14. Chapter 71, Government Code, is amended by

32-13 adding Subchapter D to read as follows:

32-14 SUBCHAPTER D. TASK FORCE ON INDIGENT DEFENSE

The composition of the Task Force is revealing. Judges have a big role. Legislators have a big role. Defense lawyers have a role. Judges will no longer have the field to themselves. The combined entity spreads the responsibility. The entity can do the right thing, or it can do the wrong thing, and no one is personally responsible. The mix is 5 judges, 4 legislators, 2 defenders, and 2 county judges or commissioners.

32-15 Sec. 71.051. ESTABLISHMENT OF TASK FORCE; COMPOSITION. The

32-16 Task Force on Indigent Defense is established as a standing

32-17 committee of the council and is composed of eight ex officio

32-18 members and five appointive members.

32-19 Sec. 71.052. EX OFFICIO MEMBERS. The ex officio members

32-20 are:

32-21 (1) the following six members of the council:

32-22 (A) the chief justice of the supreme court;

32-23 (B) the presiding judge of the court of criminal

32-24 appeals;

32-25 (C) the member of the senate appointed by the

32-26 lieutenant governor;

33-1 (D) the member of the house of representatives

33-2 appointed by the speaker of the house;

33-3 (E) one of the courts of appeals justices

33-4 serving on the council who is designated by the governor to serve

33-5 on the Task Force on Indigent Defense; and

33-6 (F) one of the county court or statutory county

33-7 court judges serving on the council who is designated by the

33-8 governor to serve on the Task Force on Indigent Defense or, if a

33-9 county court or statutory county court judge is not serving on the

33-10 council, one of the statutory probate court judges serving on the

33-11 council who is designated by the governor to serve on the task

33-12 force;

33-13 (2) the chair of the Senate Criminal Justice

33-14 Committee; and

33-15 (3) the chair of the House Criminal Jurisprudence

33-16 Committee.

33-17 Sec. 71.053. APPOINTMENTS. (a) The governor shall appoint

33-18 with the advice and consent of the senate five members of the Task

33-19 Force on Indigent Defense as follows:

33-20 (1) one member who is an active district judge serving

33-21 as a presiding judge of an administrative judicial region;

33-22 (2) one member who is a judge of a constitutional

33-23 county court or who is a county commissioner;

33-24 (3) one member who is a practicing criminal defense

33-25 attorney;

33-26 (4) one member who is a public defender or who is

34-1 employed by a public defender; and

34-2 (5) one member who is a judge of a constitutional

34-3 county court or who is a county commissioner of a county with a

34-4 population of 250,000 or more.

34-5 (b) The members serve staggered terms of two years, with two

34-6 members' terms expiring February 1 of each odd-numbered year and

34-7 two members' terms expiring February 1 of each even-numbered year.

34-8 (c) In making appointments to the Task Force on Indigent

34-9 Defense, the governor shall attempt to reflect the geographic and

34-10 demographic diversity of the state.

34-11 (d) A person may not be appointed to the Task Force on

34-12 Indigent Defense if the person is required to register as a

34-13 lobbyist under Chapter 305 because of the person's activities for

34-14 compensation on behalf of a profession related to the operation of

34-15 the task force or the council.

34-16 Sec. 71.054. VACANCIES. A vacancy on the Task Force on

34-17 Indigent Defense must be filled for the unexpired term in the same

34-18 manner as the original appointment. An appointment to fill a

34-19 vacancy shall be made not later than the 90th day after the date

34-20 the vacancy occurs.

34-21 Sec. 71.055. MEETINGS; QUORUM; VOTING. (a) The Task Force

34-22 on Indigent Defense shall meet at least quarterly and at such other

34-23 times as it deems necessary or convenient to perform its duties.

34-24 (b) Six members of the Task Force on Indigent Defense

34-25 constitute a quorum for purposes of transacting task force

34-26 business. The task force may act only on the concurrence of five

35-1 task force members or a majority of the task force members present,

35-2 whichever number is greater. The task force may develop policies

35-3 and standards under Section 71.060 only on the concurrence of seven

35-4 task force members.

35-5 (c) A Task Force on Indigent Defense member is entitled to

35-6 vote on any matter before the task force, except as otherwise

35-7 provided by rules adopted by the task force and ratified by the

35-8 council.

35-9 Sec. 71.056. COMPENSATION. A Task Force on Indigent Defense

35-10 member may not receive compensation for services on the task force

35-11 but is entitled to be reimbursed for actual and necessary expenses

35-12 incurred in discharging the member's duties as a task force member.

35-13 The expenses are paid from funds appropriated to the task force.

35-14 Sec. 71.057. BUDGET. (a) The Task Force on Indigent

35-15 Defense budget shall be a part of the budget for the council. In

35-16 preparing a budget and presenting the budget to the legislature,

35-17 the task force shall consult with the executive director of the

35-18 Office of Court Administration of the Texas Judicial System.

35-19 (b) The Task Force on Indigent Defense budget may include

35-20 funds for personnel who are employees of the council but who are

35-21 assigned to assist the task force in performing its duties.

35-22 (c) The executive director of the Office of Court

35-23 Administration of the Texas Judicial System may not reduce or

35-24 modify the Task Force on Indigent Defense budget or use funds

35-25 appropriated to the task force without the approval of the task

35-26 force.

36-1 Sec. 71.058. FAIR DEFENSE ACCOUNT. The fair defense account

36-2 is an account in the general revenue fund that may be appropriated

36-3 only to the Task Force on Indigent Defense for the purpose of

36-4 implementing this subchapter.

36-5 Sec. 71.059. ACCEPTANCE OF GIFTS, GRANTS, AND OTHER FUNDS;

36-6 STATE GRANTS TEAM. (a) The Task Force on Indigent Defense may

36-7 accept gifts, grants, and other funds from any public or private

36-8 source to pay expenses incurred in performing its duties under this

36-9 subchapter.

36-10 (b) The State Grants Team of the Governor's Office of Budget

36-11 and Planning may assist the Task Force on Indigent Defense in

36-12 identifying grants and other resources available for use by the

36-13 task force in performing its duties under this subchapter.

The state task force sets standards for courts to use for lawyers to be eligible for appointment. This is terribly important

36-14 Sec. 71.060. POLICIES AND STANDARDS. (a) The Task Force on

36-15 Indigent Defense shall develop policies and standards for providing

36-16 legal representation and other defense services to indigent

36-17 defendants at trial, on appeal, and in postconviction proceedings.

36-18 The policies and standards may include:

Lawyers may be expected to do their job.

36-19 (1) performance standards for counsel appointed to

36-20 represent indigent defendants;

Lawyers may be expected to be qualified. Really.

36-21 (2) qualification standards under which attorneys may

36-22 qualify for appointment to represent indigent defendants,

36-23 including:

36-24 (A) qualifications commensurate with the

36-25 seriousness of the nature of the proceeding;

36-26 (B) qualifications appropriate for

37-1 representation of mentally ill defendants and noncitizen

37-2 defendants;

CLE may be required. It doesn’t specify YouKnowItAll.com CLE, but maybe that was an oversight.

37-3 (C) successful completion of relevant continuing

37-4 legal education programs approved by the council; and

Testing? Lawyers passing a test? Yikes!

37-5 (D) testing and certification standards;

Caseload standards! Does this mean that a lawyer can’t represent a dozen defendants a day, plead them all guilty, charge $200 per guilty plea and leave before lunch with $2,400? This may be one of the most important changes. Quality legal service takes time. Taking time requires available time. If lawyers have time and take time they may learn how to seriously represent defendants rather than just pleading them guilty. If lawyers have fewer cases and gives each lawyer more time, the lawyer may learn to charge a reasonable fee for each case.

37-6 (3) standards for ensuring appropriate appointed

37-7 caseloads for counsel appointed to represent indigent defendants;

Indigency standards.

37-8 (4) standards for determining whether a person accused

37-9 of a crime or juvenile offense is indigent;

Standards for various kinds of representation methods. Requiring standards “consistent with recognized national policies and standards” has immense consequences. Those standards are a world apart from Texas practice. These standards may be the subject of a future YouKnowItAll.com course.

37-10 (5) policies and standards governing the organization

37-11 and operation of an ad hoc assigned counsel program;

37-12 (6) policies and standards governing the organization

37-13 and operation of a public defender consistent with recognized

37-14 national policies and standards;

37-15 (7) standards for providing indigent defense services

37-16 under a contract defender program consistent with recognized

37-17 national policies and standards;

Pay standards.

37-18 (8) standards governing the reasonable compensation of

37-19 counsel appointed to represent indigent defendants;

Standards for support services.

37-20 (9) standards governing the availability and

37-21 reasonable compensation of providers of indigent defense support

37-22 services for counsel appointed to represent indigent defendants;

Law student clinic standards.

37-23 (10) standards governing the operation of a legal

37-24 clinic or program that provides legal services to indigent

37-25 defendants and is sponsored by a law school approved by the supreme

37-26 court;

Family Code appointment standards.

38-1 (11) policies and standards governing the appointment

38-2 of attorneys to represent children in proceedings under Title 3,

38-3 Family Code; and

Anything else they wish.

38-4 (12) other policies and standards for providing

38-5 indigent defense services as determined by the task force to be

38-6 appropriate.

The policies and standards go to the Council for ratification. Remember, “council” means the Texas Judicial Council. The Judicial Council ratifies. The law mentions no alternative to ratification.

38-7 (b) The Task Force on Indigent Defense shall submit policies

38-8 and standards developed under Subsection (a) to the council for

38-9 ratification.

Death penalty.

38-10 (c) Any qualification standards adopted by the Task Force on

38-11 Indigent Defense under Subsection (a) that relate to the

38-12 appointment of counsel in a death penalty case must be consistent

38-13 with the standards specified under Article 26.052(d), Code of

38-14 Criminal Procedure. An attorney who is identified by the task

38-15 force as not satisfying performance or qualification standards

38-16 adopted by the task force under Subsection (a) may not accept an

38-17 appointment in a capital case.

Information Gathering Standards.

38-18 Sec. 71.061. COUNTY REPORTING PLAN; TASK FORCE REPORTS.

38-19 (a) The Task Force on Indigent Defense shall develop a plan that

38-20 establishes statewide requirements for counties relating to

38-21 reporting indigent defense information. The plan must include

38-22 provisions designed to reduce redundant reporting by counties and

38-23 provisions that take into consideration the costs to counties of

38-24 implementing the plan statewide. The task force shall use the

38-25 information reported by a county to monitor the effectiveness of

38-26 the county's indigent defense policies, standards, and procedures

39-1 and to ensure compliance by the county with the requirements of

39-2 state law relating to indigent defense. The task force may revise

39-3 the plan as necessary to improve monitoring of indigent defense

39-4 policies, standards, and procedures in this state.

Annual Report.

39-5 (b) The Task Force on Indigent Defense shall annually submit

39-6 to the governor, lieutenant governor, speaker of the house of

39-7 representatives, and council and shall publish in written and

39-8 electronic form a report:

39-9 (1) containing the information forwarded to the task

39-10 force from the Office of Court Administration of the Texas Judicial

39-11 System under Section 71.0351(e); and

39-12 (2) regarding:

39-13 (A) the quality of legal representation provided

39-14 by counsel appointed to represent indigent defendants;

39-15 (B) current indigent defense practices in the

39-16 state as compared to state and national standards;

39-17 (C) efforts made by the task force to improve

39-18 indigent defense practices in the state; and

39-19 (D) recommendations made by the task force for

39-20 improving indigent defense practices in the state.

39-21 (c) The Task Force on Indigent Defense shall annually submit

39-22 to the Legislative Budget Board and council and shall publish in

39-23 written and electronic form a detailed report of all expenditures

39-24 made under this subchapter, including distributions under Section

39-25 71.062.

39-26 (d) The Task Force on Indigent Defense may issue other

40-1 reports relating to indigent defense as determined to be

40-2 appropriate by the task force.

Grants to Induce Improvements.

40-3 Sec. 71.062. TECHNICAL SUPPORT; GRANTS. (a) The Task Force

40-4 on Indigent Defense shall:

40-5 (1) provide technical support to:

40-6 (A) assist counties in improving their indigent

40-7 defense systems; and

40-8 (B) promote compliance by counties with the

40-9 requirements of state law relating to indigent defense;

40-10 (2) direct the comptroller to distribute funds,

40-11 including grants, to counties to provide indigent defense services

40-12 in the county; and

40-13 (3) monitor each county that receives a grant and

40-14 enforce compliance by the county with the conditions of the grant,

40-15 including enforcement by directing the comptroller to:

40-16 (A) withdraw grant funds; or

40-17 (B) require reimbursement of grant funds by the

40-18 county.

Grants go to counties where standards are met or intended to be met.

40-19 (b) The Task Force on Indigent Defense shall direct the

40-20 comptroller to distribute funds as required by Subsection (a)(2)

40-21 based on a county's compliance with standards developed by the task

40-22 force and the county's demonstrated commitment to compliance with

40-23 the requirements of state law relating to indigent defense.

40-24 (c) The Task Force on Indigent Defense shall develop

40-25 policies to ensure that funds under Subsection (a)(2) are allocated

40-26 and distributed to counties in a fair manner.

41-1 (d) A county may not reduce the amount of funds provided for

41-2 indigent defense services in the county because of funds provided

41-3 by the Task Force on Indigent Defense under this section.

41-4 Sec. 71.063. IMMUNITY FROM LIABILITY. The Task Force on

41-5 Indigent Defense or a member of the task force performing duties

41-6 on behalf of the task force is not liable for damages arising from

41-7 an act or omission within the scope of the duties of the task

41-8 force.

* * * * *

41-9 SECTION 15. Articles 26.041, 26.042, 26.043, 26.045, 26.046,

41-10 26.047, 26.048, 26.049, 26.050, 26.053, as added by Senate Bill No.

41-11 1781, 77th Legislature, Regular Session, 2001, 26.054, as added by

41-12 Senate Bill No. 1781, 77th Legislature, Regular Session, 2001, and

41-13 26.058, Code of Criminal Procedure, are repealed.

Effective Dates

* * * * *

41-14 SECTION 16. The change in law made by this Act applies only

41-15 to a person arrested for or charged with an offense committed or,

41-16 for purposes of Title 3, Family Code, a child taken into custody

41-17 for conduct or alleged to have engaged in conduct that occurs on or

41-18 after the effective date of this Act and to the appointment of

41-19 counsel for that person or child. A person arrested for or charged

41-20 with an offense committed or a child taken into custody for conduct

41-21 or alleged to have engaged in conduct that occurs before the

41-22 effective date of this Act is covered by the law in effect when the

41-23 offense was committed or the conduct occurred, and the former law

41-24 is continued in effect for that purpose.

* * * * *

41-25 SECTION 17. A county having established a public defender

41-26 under a statute repealed or amended by this Act may continue the

42-1 existence and operation of the public defender under the terms of

42-2 the repealed or amended statute as that statute existed immediately

42-3 before the effective date of this Act if the public defender is a

42-4 governmental entity or nonprofit corporation described by

42-5 Subsection (a), Article 26.044, Code of Criminal Procedure, as

42-6 amended by this Act. The change in law made by this Act to Article

42-7 26.044, Code of Criminal Procedure, applies only to a public

42-8 defender appointed on or after the effective date of this Act.

* * * * *

42-9 SECTION 18. A local administrative judge or other person

42-10 designated under Subsection (a) or (b), Section 71.0351, Government

42-11 Code, as added by this Act, shall begin sending to the Office of

42-12 Court Administration of the Texas Judicial System the information

42-13 required to be sent by that section on or before January 1, 2002.

42-14 A county auditor or other person designated under Subsection (c),

42-15 Section 71.0351, Government Code, as added by this Act, shall begin

42-16 sending to the Office of Court Administration of the Texas Judicial

42-17 System the information required by that section on or before

42-18 September 1, 2002.

* * * * *

42-19 SECTION 19. The governor shall make appointments to the Task

42-20 Force on Indigent Defense as soon as practicable after the

42-21 effective date of this Act. In appointing the initial members of

42-22 the task force, the governor shall appoint the member who is an

42-23 active district judge serving as a presiding judge of an

42-24 administrative judicial region and the member who is a practicing

42-25 criminal defense attorney for terms expiring February 1, 2003, and

42-26 the member who is a judge of a constitutional county court or who

43-1 is a county commissioner and the member who is a public defender or

43-2 who is employed by a public defender for terms expiring February 1,

43-3 2004.

43-4 SECTION 20. A local selection committee shall amend

43-5 standards previously adopted by the committee to conform with the

43-6 requirements of Subsection (d), Article 26.052, Code of Criminal

43-7 Procedure, as amended by this Act, not later than April 1, 2002.

43-8 An attorney appointed on or after April 1, 2002, to a death penalty

43-9 case must meet the standards adopted in conformity with the amended

43-10 Subsection (d), Article 26.052. An attorney appointed before April

43-11 1, 2002, to a death penalty case is covered by the law in effect

43-12 when the attorney was appointed, and the former law is continued in

43-13 effect for that purpose.

43-14 SECTION 21. Subsection (h), Article 102.075, Code of

43-15 Criminal Procedure, as amended by this Act, applies only to a court

43-16 cost collected under that article on or after the effective date of

43-17 this Act. A court cost collected under Article 102.075, Code of

43-18 Criminal Procedure, before the effective date of this Act is

43-19 governed by the law in effect when the court cost was collected,

43-20 and the former law is continued in effect for that purpose.

43-21 SECTION 22. This Act takes effect January 1, 2002.

S.B. No. 7 passed the Senate on April 10, 2001, by a viva-voce vote; and that the Senate concurred in House amendments on May 24, 2001, by a viva-voce vote.

S.B. No. 7 passed the House, with amendments, on May 17, 2001, by a non-record vote.

Governor Perry signed this bill in June, 2001.

* * * * *

Part 3. What do Texas Lawyer, Courts, and Commissioners Do Now?

The new law creates a structure. It creates opportunity. It is not the solution. It is the means by which a solution may be created. But, what do lawyers, judges, and county commissioners do? What does the Task Force do?

For guidance we turn the 1984 case of the state of Arizona against Joe U. Smith. Smith arose from a system with problems reminiscent of Texas, although not everyone plead guilty in Mohave County. Some were tried to a jury and some appealed. When Texas looks at what it can and should do now, Smith is the place to start.

* * * * *

State v. Smith 681 P.2d 137 (Ariz. In Banc 1984)[37]

“The defendant, Joe U. Smith, was convicted and judged guilty of burglary, sexual assault, and aggravated assault. He was sentenced to a term of fifteen years for the burglary to run consecutively with concurrent sentences of three years for the aggravated assault and twenty-one years for the sexual assault. The Court of Appeals affirmed in a memorandum decision. We reverse.

“We granted review to consider only two questions decided by the Court of Appeals:

“1. Was the testimony of an alibi witness properly excluded?

“2. Did the defendant receive adequate assistance of counsel at trial?

“Regarding the question of adequacy of counsel, we noted that the allegation of inadequacy resulted from the manner in which attorneys are selected to represent indigent criminal defendants in Mohave County. We ordered expansion of the record to consider the Mohave County system of providing counsel for indigent defendants as it relates to adequacy of defense counsel. We also invited amici briefs and directed attention to the following questions:

“a. Is it proper for a county to use a method of selection of counsel for indigent defendants which uses as its criteria for selection the lowest annual fee bid, without considering the attorney's experience, ability, or workload, and without limiting the number of clients for which he is responsible, or the hours of work he must perform under the contract?

“b. Can this practice result in an attorney so selected being so overworked that he is unable to competently represent his clients and guarantee their rights under the Fifth and Sixth Amendments to the United States Constitution and Article 2, §§ 4 and 24 of the Arizona Constitution, as well as DR 6-101, 7-101 of the Rules of the Arizona Supreme Court, or other appropriate ethical considerations?

“c. Can this practice cause a difference in the quality of representation afforded those accused of crime, depending upon the county in which they are charged, comparing other methods of providing attorneys' services in other counties in Arizona? Can this cause an equal protection problem under the Fourteenth Amendment to the United States Constitution?

“d. Under the facts of this case were any of defendant's constitutional rights violated by Mohave County's contract method of providing counsel for indigent defendants?

“The facts necessary to determine these issues follow. The victim was at home in Kingman, Arizona, with her six-year-old daughter on the evening of 17 December 1980. At approximately 10:30 she answered a knock at her door. A man the victim later identified as the defendant asked if her husband was home and when he would return. The victim replied she did not know. He then burst through the door, grabbed the victim by the neck, and threatened to kill her if she screamed. The victim was forced into her living room and raped while the assailant maintained his grip on her neck. She passed out temporarily. When she came to, the assailant spoke with the victim for about fifteen minutes and then again had intercourse and performed cunnilingus on the victim. He spoke with the victim for a few more minutes and finally left. She watched him go over to a trailer across the street.

“The victim reported the crime to her parents, who then contacted the police. She described her assailant as having dark hair and a full-face beard. She claimed she did not recognize him as anyone she knew until she saw him go over to the trailer across the street, at which time she realized she had seen him at the trailer working on a motorcycle in the days prior to the assault. The victim was shown a picture of a man with a beard (not the defendant) and did not recognize him. After the police investigation began to center on the defendant, the victim was shown six photographs of men with dark hair and full-face beards, including the defendant, and she identified the defendant as her assailant.

“On 24 December an officer visited the trailer across the street from the victim’s home to serve an arrest warrant on the defendant. The defendant was not there, but the officer spoke to the defendant’s brother Tim, who also had a full-face beard and who lived in the trailer and owned a motorcycle he kept at the trailer. Tim later told the defendant about the visit.

“The defendant was arrested in Reno in September, 1981. His defense was one of mistaken identification and alibi. In support of this defense, the defendant pointed out that the six-photo line-up from which the victim identified the defendant did not include a picture of the defendant's brother Tim, who resembled the defendant. The defendant's sister testified that the defendant was in Parker, Arizona, visiting her from the beginning of December, 1980, until February, 1981, and that he shaved his beard shortly after arriving in Parker. She stated that the defendant said he thought the police were looking for him because of some traffic tickets he had received. The jury found the defendant guilty, and he appeals.

PRECLUSION OF THE WITNESS MARTIN

“The defendant contends that he was staying with his sister in Parker at the time of the attack and that he shaved his beard shortly after arriving in Parker at the beginning of December. The defendant's sister corroborated his alibi. She also testified that her boyfriend, Red Martin, knew the defendant was in Parker at the time. Martin’s whereabouts were not known to defendant’s counsel prior to trial, although counsel had made attempts to locate him. In fact, Martin was living with defendant’s sister in Kingman at the time. On the second day of trial and after the state had rested its case, the defense attorney learned that Martin was in the courtroom. He moved to permit Martin to testify, but the trial court denied the motion because Martin was not disclosed as a potential witness in the case. The defendant claims this was error. He contends the court should have imposed a less severe sanction for failure to disclose Martin, such as granting the state a continuance.

“The state argues that Martin’s testimony only would have been cumulative, and that the prosecutor would not have had time to prepare rebuttal, even with a continuance. The state further contends there was a lack of good faith, because this was not the only occasion of defense counsel's failure to disclose, and also that the defendant has failed to show any prejudice. Therefore, the state claims the trial court did not abuse its discretion in precluding Martin's testimony. We do not agree.

“With regard to preclusion of a witness, this court has stated:

Pursuant to 17 A.R.S., Rules of Criminal Procedure, rule 15.7, the trial court is authorized to impose sanctions upon a party who fails to comply with any of the provisions of rule 15. One such sanction is the preclusion of an undisclosed witness' testimony. In general, the appropriate sanction for noncompliance with rule 15 is left to the sound discretion of the trial court.

“The trial court, however, should seek to apply sanctions that affect the evidence at trial and the merits of the case as little as possible, since the rules of Criminal Procedure are designed to implement, and not to impede, the fair and speedy determination of cases. Prohibiting the calling of a witness should be invoked only in those cases where other less stringent sanctions are not applicable to effect the ends of justice. To be effective, discovery rules must be applied with equal force to both parties.

“We, therefore, hold that prior to precluding either party's witnesses, as a discovery sanction, the court must make an inquiry into the surrounding circumstances. Failure of the trial court to do so constitutes error. The inquiry should determine if less stringent sanctions can be used. The court should also consider how vital the precluded witness is to the proponent's case, whether the opposing party will be surprised and prejudiced by the witness' testimony, whether the discovery violation was motivated by bad faith or willfulness, and any other relevant circumstances.

State v. (Joseph Clarence, Jr.) Smith, 123 Ariz. 243, 252, 599 P.2d 199, 208 (1979) (footnotes and citations omitted). Smith, supra, sets forth four criteria for determining whether the sanction of preclusion should be imposed: (1) how vital the witness is to the case, (2) whether the opposing party will be surprised, (3) whether the discovery violation was motivated by bad faith, and (4) any other relevant circumstances.

“In the instant case, Martin’s testimony is vital to the defendant. If Martin did indeed testify that the defendant was in Parker at the time of the assault and that the defendant shaved his beard shortly after arriving in Parker, it would add considerable weight to the defendant’s argument that the victim made a mistake in identification. Martin’s testimony could be more persuasive than defendant's sister's because Martin is not related to the defendant. While the state may legitimately claim surprise, the state had interviewed the defendant's sister and was aware of Martin's existence before trial as well as the alibi defense. In the instant case, nondisclosure does not appear to have been due to bad faith or willfulness, but rather because the defendant's attorney honestly believed Martin was not available and could not be located. In this case other, less stringent sanctions, such as granting a continuance, were available to effect the ends of justice, and we believe it was error to not allow Martin to testify. We therefore reverse the convictions and remand the case for a new trial.

EFFECTIVE ASSISTANCE OF COUNSEL

“The defendant claims he was denied effective assistance of counsel at trial. The standard for judging effective assistance of counsel is ‘whether under the circumstances the attorney showed at least minimal competence in representing the criminal defendant.’[38] The focus is on the quality of performance, not on the effect of that performance on the outcome of the proceeding, and disagreements in trial strategy or tactics will not support an ineffectiveness claim as long as the challenged conduct could have some reasoned basis. Applying this test, we are satisfied with the treatment of this issue by the Court of Appeals.

“We granted review, however, particularly to consider defendant’s allegation that the defendant’s attorney spent only two to three hours interviewing the defendant and ‘possibly’ six to eight hours studying the case because of the attorney’s ‘shocking, staggering and unworkable’ caseload. The caseload was allegedly a product of the Mohave County system for providing defense counsel for indigents.

“In order to determine whether that system is a relevant factor in determining whether there was adequate assistance of counsel, we ordered the record expanded in this case to consider the questions set forth above.

“a. Whether the Mohave County Bid System is Adequate

“As noted in defendant’s brief, the procedure followed in Mohave County is basically as follows. In May of each year a bid letter goes out from the presiding judge of Mohave County to all attorneys in the county. It calls for sealed bids to be opened at a given hour and date. No limitation is suggested on caseload or hours, nor is there any criteria for evaluating ability or experience of potential applicants. The successful bidders are assigned all indigent criminal cases in the superior courts, justice of the peace courts, juvenile courts, all appeals in Mohave County, and all mental evaluations.

“It is stated in the bid letter that additional compensation might be paid for unusually difficult or time-consuming cases, but the letters also advise over the past fourteen years there has never been such a case. No suggestion is made that counsel may expect assistance in any way for support personnel. Any investigator, paralegal, secretary, or similar personnel must be provided by the individual bidder who must also provide his own office space, equipment, and supplies. ‘Unusual’ xerox charges, long distance phone charges, and mileage are reimbursable, according to the letters.

“The bids are opened and transmitted promptly by the presiding judge to the Mohave County Board of Supervisors with a cover letter summarizing the dollar sums bid. No recommendation is made by the judge, nor is the Board provided with any information concerning the background, experience or capabilities of any bidding attorney. The judge lists the bids by lowest amount and by percent of the caseload the bidding attorney proposes to accept, such as ‘if divided into four contracts,’ ‘if divided three ways,’ and so on.

“The Board of Supervisors then accepts the bids it desires. With only one exception in the past four years, the Board has accepted the lowest bids fitting into that particular division. The only low bid ever rejected was one submitted by an attorney who has been held in contempt by this court for failing to file a required brief in an appeal and who has been the subject of other repeated complaints.

“Several aspects of this system should be noted. First, there is no way to know the complexity of the cases that are assigned. Murders, rapes, robberies, and aggravated assaults are mixed with less serious crimes. Second, counsel are also expected to handle appeals, juvenile law, and mental health commitments. They must represent clients in the justice of the peace courts ranging from the southern end of Mohave County to Littlefield on the Arizona Strip. Third, these are part-time counsel who also handle a civil practice. In the instant case defendant’s attorney handled all the indigent criminal defendants of the City of Kingman. In 1982-83, the four low bids were $24,000, $26,200, $34,300, and $34,400. Each attorney was expected to handle one-fourth of the total caseload of Mohave County, regardless of the number of cases.

“The amicus brief submitted by the Pima County Public Defender’s Office cites a tentative draft produced for the National Legal Aid and Defender Association [NLADA] entitled ‘Guidelines for Negotiating and Awarding Indigent Defense Contracts"’ [hereinafter Negotiating Guidelines]. That draft discusses the factors to be considered in providing and funding indigent defense contracts. Among these factors are:

“(1) The customary compensation in the community for similar services rendered by privately retained counsel to a non-indigent client or by government or other publicly-paid attorneys to a public client;

“(2) the time and labor required to be spent by the attorney; and

“(3) the degree of professional ability, skill, and experience called for and exercised in the performance of the services.

“NLADA Guidelines for Negotiating and Awarding Indigent Defense Contracts, Guideline III-9(b) (tentative draft, 1983) . In addition to these guidelines, the American Bar Association Standards for Criminal Justice state in pertinent part:

Standard 4-3.3. Fees

“(a) In determining the amount of the fee in a criminal case, it is proper to consider the time and effort required, the responsibility assumed by counsel, the novelty and difficulty of the questions involved, the skill requisite to proper representation, the likelihood that other employment will be precluded, the fee customarily charged in the locality for similar services, the gravity of the charge, the experience, reputation, and ability of the lawyer, and the capacity of the client to pay the fee.

“I ABA Standards for Criminal Justice, Standard 4-3.3 (2d ed. 1980). In addition, both the NLADA and the American Bar Association Standards require adequate investigative and support services for the defendant’s lawyer.

“The Negotiating Guidelines further provide:

Allowable Caseloads. The contract should specify a maximum allowable caseload for each full-time attorney, or equivalent, who handles cases through the contract. Caseloads should allow each lawyer to give every client the time and effort necessary to provide effective representation.

“Under no circumstances should maximum allowable caseloads for each full-time attorney exceed the following:

(a) 150 felonies per attorney per year; or

(b) 300 misdemeanors per attorney per year; or

(c) 200 juvenile cases per attorney per year; or

(d) 200 mental commitment cases per attorney per year; or

(e) 25 appeals to appellate court hearing a case on the record and briefs per attorney per year.

“Attorneys employed less than full-time or handling a mix of cases should handle a proportional caseload.

“NLADA Guidelines for Negotiating and Awarding Indigent Defense Contracts, Guideline III-6 (tentative draft, 1984). These amounts are in the disjunctive, not the conjunctive, and mean that to properly represent the clients assigned an attorney should not represent more than 150 felonies a year or more than 300 misdemeanors or 200 juvenile cases per year, etc. Of course, these recommendations are the ‘maximum allowable’ and do not take into account differences in practice in a particular jurisdiction, such as the percentage of cases that are plea bargained and the number that actually go to trial. Both the amount of time spent investigating a matter to determine what is a fair plea bargain and the time in preparing for trial can vary greatly from case to case.

“The defendant's counsel in the instant case for eleven months of the year in which the defendant was tried handled a caseload of:

149 felonies

160 misdemeanors

21 juvenile cases, and

33 other types of cases.

“This was for part-time representation only. The attorney in the instant case also handled all of the Kingman city appointment cases, as well as a private civil practice. While testifying at the hearing on the motion for a new trial counsel stated that the Kingman caseload consisted of five trials per month through November and twenty-five trials in December. It is obvious that the caseload of defendant's attorney was excessive, if not crushing. In making this determination we do not base our opinion on the standards alone, but also on our own experience as attorneys and upon the requests for compensation by attorneys appearing before this court who represent indigent defendants. We reach this conclusion even though the record in this particular case does not indicate that the defendant was inadequately represented. The fact that one felony defendant out of 149 felony defendants was given minimum adequate representation does not mean that others were properly represented. The insidiousness of overburdening defense counsel is that it can result in concealing from the courts, and particularly the appellate courts, the nature and extent of damage that is done to defendants by their attorneys' excessive caseloads.

“We do not believe the Mohave County system is in conformance with these standards and guidelines for four reasons:

“1. The system does not take into account the time that the attorney is expected to spend in representing his share of indigent defendants.

“2. The system does not provide for support costs for the attorney, such as investigators, paralegals, and law clerks.

“3. The system fails to take into account the competency of the attorney. An attorney, especially one newly-admitted to the bar, for example, could bid low in order to obtain a contract, but would not be able to adequately represent all of the clients assigned according to the standard of Watson, supra.

“4. The system does not take into account the complexity of each case.

“We believe that the system for obtaining indigent defense counsel in Mohave County militates against adequate assistance of counsel for indigent defendants. Even though in the instant case we do not find inadequate representation, so long as the County of Mohave fails to take into account the items listed above, there will be an inference that the adequacy of representation is adversely affected by the system.

“b. Does the System Violate the Constitutional Rights of Defendants in Mohave County

“The question is whether the system so overworks the attorneys that it violates the Fifth and Sixth Amendments to the United States Constitution and Article 2, §§ 4 and 24 of the Arizona Constitution, as well as the Arizona Rules of Professional Responsibility, DR 6-101 and 7-101, Rules of the Supreme Court, 17A A.R.S. The Fifth Amendment of the United States Constitution provides that no criminal defendant shall be deprived of "due process of law," and the Sixth Amendment guarantees the "assistance of counsel for [the defendant's] defense." Section 4 of Article 2 of the Arizona Constitution provides for due process and § 24 sets forth the rights of criminal defendants, including the right to counsel.

“We believe the procedure followed by Mohave County violates the right of a defendant to due process and right to counsel as guaranteed by the Arizona and United States Constitutions. We reach this conclusion based upon the reasoning stated above, that an attorney so overburdened cannot adequately represent all his clients properly and be reasonably effective. Some defendants must receive inadequate representation in relation to those who do, in fact, receive adequate representation. In reaching this conclusion we note that we must fault not only the system used in Mohave County but the attorneys involved as well. It can be expected and understood that a government agency will (and in most cases should) try to obtain services at the lowest possible cost to the taxpayers. This is acceptable as long as the services obtained are adequate for the specific purpose to be served. We recognize also that the Board of Supervisors is not always able to determine whether adequate services are being provided by counsel. The attorneys involved, however, are in a position to know when a contract will result in inadequate representation of counsel.

“The Arizona Rules of Professional Responsibility, DR 6-101 and 7-101, Rules of the Supreme Court, 17A A.R.S., provide that attorneys should not seek or accept employment that cannot be adequately performed. The ABA Standards also discuss an indigent defense attorney's caseload. The pertinent standards state:

Standard 4-1.2. Delays; punctuality

* * *

“(d) A lawyer should not accept more employment than the lawyer can discharge within the spirit of the constitutional mandate for speedy trial and the limits of the lawyer's capacity to give each client effective representation. It is unprofessional conduct to accept employment for the purpose of delaying trial.

* * *

Standard 5-4.3. Workload

“Neither defender organizations nor assigned counsel should accept workloads that, by reason of their excessive size, interfere with the rendering of quality representation or lead to the breach of professional obligations. Whenever defender organizations or assigned counsel determine, in the exercise of their best professional judgment, that the acceptance of additional cases or continued representation in previously accepted cases will lead to the furnishing of representation lacking in quality or to the breach of professional obligations, the defender organizations or assigned counsel must take such steps as may be appropriate to reduce their pending or projected workloads.

“I ABA Standards for Criminal Justice, Standards 4-1.2 and 5-4.3 (2d ed. 1980).

“Under the Mohave County system, a contract attorney is paid the bid amount no matter how many or what type of cases are handled, how much time and expertise is required, or how experienced the attorney is. There is no limit to the number of cases any one attorney may be assigned (though it is presumed the caseload will be split four ways). Should an attorney need assistance from an investigator or should a case on a contract attorney's docket need to be assigned to a non-contract attorney, the fees for the investigator or outside attorney are paid by the contracting attorney, thereby reducing the likelihood an attorney will seek outside help when needed. No limit is placed on an attorney seeking other, paying clients. Therefore, an attorney may be forced to allot his limited amount of time and resources between paying clients and indigent clients or even between different indigent clients. This can result in a breach of the attorney’s professional responsibility under DR 5-101, 6-101, 7-101, or 5-105. We remind counsel that accepting more cases than can be properly handled may result not only in reversals for failing to adequately represent clients, but in disciplinary action for violation of the Code of Professional Responsibility. See DR 1-102(A)(6).

“c. Possible Equal Protection Violations

“In comparing the different systems (as indicated in the briefs) of indigent representation used in the State of Arizona, we find that in Apache County the Board of Supervisors has appointed attorneys to handle indigent defense and compensation has been based on a flat monthly fee. Conflict cases and appeals are apparently handled by appointing other counsel, who are compensated on an hourly basis. Navajo, Gila, Graham and Greenlee Counties apparently use a similar system, but Graham and Greenlee Counties specifically provide that outside counsel will be compensated by the contract attorney. Except possibly in Graham County, the system in those counties does not appear to involve a competitive bidding situation. The Superior Court in each county apparently takes part in selection of counsel and setting compensation.

“Pima and Maricopa Counties each have a public defender's office. In both counties, there is a judicially supervised method of allotting and funding an excessive number of cases.

“Coconino County has had the same law firm handling its indigent defense work for several years. It appears that the firm and the county negotiate a compensation agreement. The firm is given a chance to increase its size and compensation through this negotiation, and thereby allow for an increased caseload.

“Cochise, Santa Cruz, Yavapai and Yuma Counties all use some form of a rotation system with compensation either set by the court or provided on an hourly basis. LaPaz County has had one attorney handling indigent work. Again the court sets the compensation. There was nothing in the record indicating what system was used by Pinal County.

“Comparing these different systems, we believe that the Mohave County system is the least desirable and can result in inadequate representation by counsel. This, however, does not justify a finding of lack of equal protection. Indeed, if we could find that the least effective system was for that reason alone a denial of equal protection, there would be no end to county-by-county challenges alleging that each county system was, in turn, the least effective. It is enough that the system in Mohave County results in a denial of due process and inadequate representation of counsel. As long as there is adequate representation for each defendant it is immaterial whether the system in one county is better or worse than the system in another, and we know of no case in which the variance in quality of representation from county to county within a state has been held to constitute a violation of equal protection of law. The United States Supreme Court has stated:

[W]e have held that the Equal Protection Clause relates to equality between persons as such, rather than between areas and that territorial uniformity is not a constitutional prerequisite.[39]

That court has also stated:

“Indeed, showing that different persons are treated differently is not enough, without more, to show a denial of equal protection.[40]

“The Louisiana Supreme Court in cases interpreting their constitution which requires a ‘uniform system for securing and compensating qualified counsel for indigents,’ Louisiana Constitution of 1974, Art. 1, § 13, has held that the methods of providing counsel for indigent defendants may vary from one part of the state to another and does not violate equal protection where it is necessary to balance the needs for uniformity against the need for workability in a State with political subdivisions of widely varying population, geography, customs and problems.[41]

“Admittedly, the United States Supreme Court has held that a proportionality review of sentences in other jurisdictions for the same or similar crimes or for different but similar offenses in the same jurisdiction is relevant for purposes of determining whether a person has been subjected to cruel and unusual punishment prohibited by the Eighth Amendment.[42] The United States Supreme Court has not held, however, that differences in sentences from state to state, or differences in sentences within a state, violate the Equal Protection Clause.[43] We find no equal protection violation.

“d. Whether the Defendant's Right Was Violated

“We must finally consider whether the record and facts in this case indicate that the defendant’s right to effective assistance of counsel was violated by the method of selecting counsel followed in Mohave County. As noted above, we have not found that defendant was inadequately represented at trial. Even though we believe that the system used raises an inference of inadequate representation of counsel, that inference has been rebutted by the record in this case.

“Because this decision mandates new procedures not heretofore contemplated, we order that this opinion shall be prospectively applied after the mandate issues in this matter. In matters tried prior to the issuance of the mandate, the defendant will still be required to show that he was, in fact, denied adequate assistance of counsel. As to trials commenced after the issuance of the mandate, if the same procedure for selection and compensation of counsel is followed as was followed in this case, there will be an inference that the procedure resulted in ineffective assistance of counsel, which inference the state will have the burden of rebutting.

“That portion of the Court of Appeals decision and opinion affirming the conviction despite the allegation that it was error to refuse to allow the alibi witness Red Martin to testify is vacated. The conviction and judgment are reversed and the case remanded to the Superior Court for a new trial.

* * * * *

The Texas legislature saw a problem, and acted, like the Arizona Supreme Court did almost 20 years ago. Texas lawyers do not have to practice criminal law, but if a lawyer chooses to do so, the lawyer must provide competant and ethical representation. Lawyers who practice criminal defense law will want the system to work well for their clients and for themselves. Lawyers who do not practice criminal law want the legal system to work. Texans want a good system. Texans do not want innocent people convicted. All lawyers can participate in the political process as counties act locally. Lawyers can speak up. Lawyers who do not practice criminal law can express objective views. Lawyers who do practice indigent defense can insist that they have the resources and time to do the job. Lawyers must also be compensated. While compensation should be fair, compensation must be adequate to allow and sustain a constitutional and ethical level of representation.

No lawyer is required to violate ethical, constitutional, and fiduciary duties by serving as a cog in a plea mill in which all defendants are convinced to plead guilty “or else.” If lawyers refuse to practice law unethically, law will be practiced ethically. The defendants may not be prosecuted without a lawyer. Lawyers can insist that the representation be ethical and adequate. The state can provide that, or dismiss the charges. Lawyers who fail to insist on high standards can keep Texas in the criminal defense dark ages. Now is the time when lawyers will act.

* * * * *

Thank You

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[1] Prosecutor expects counsel to be appointed after suspects are extradited By Mary Alice Robbins Texas Lawyer January 29, 2001

[2] Id.

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] “Landmen” handle leasing mineral rights for oil and gas. Some landmen are lawyers. Many of those do not practice law, or practice law less often than they practice their golf swing.

[11] (c) 2000 The Dallas Morning News

[12] This is absurd.

[13] © 1999 Houston Chronicle

[14] © 2001 DallasNews.com

[15] Staff writer Pete Slover contributed to this report.

[16] Does this mean that the problem is not that the judges appoint incompetent lawyers, it is that the lawyers who are appointed are incompetent?

[17] This is what is known as a self serving unsupported assertion.

[18] The only reason that “it was time” was that others had discovered what the courts had done for years. These two chief justices did nothing. They hadn’t found the “time” to do anything. Now it was “time.” It was time because they were being embarrassed. It had been “time” for decades, but no one acted because no one cared and no one was embarrassed.

[19] The rules were adequate if the judges had been adequate. The judges were not adequate. Judge Keller had not proposed change. Instead, she ignored the problem until the legislature caused her to be embarrassed by her inaction.

[20] The law gave the judges the power to order payment. The courts had the power. Perhaps she hadn’t noticed.

[21] She preferred doing nothing. For many years, doing nothing seemed safe.

[22] If this was what “the courts could do’ why didn’t she do it before the legislature criticized her for not doing anything?

[23] She asked for money for one private entity. No bids. No competition. Just a whim. And, it wasn’t something for her to handle. She would avoid responsibility. It probably wasn’t a serious proposal. It was probably just the offhand answer to the question: “I have to propose something fast, what can I propose?” And, it involved no criticism of, or change in any court or judge. Isn’t it slick.

[24] How does the $1.2 million “battle this practice?” It is a fig leaf.

[25] Judge Keller might be more convincing if the substance of her claim was true. It wasn’t. Judges controlled the money. They could order reasonable fees. Judges controlled the appointments. They appointed lawyers because they would plead the defendants guilty without fuss. They could appoint lawyers who would fight for the defendant instead of just pleading the defendant guilty to “move the case.” The court of Criminal Appeals could adopt presumptive standards like the standards the Arizona Supreme Court adopted in Joe U. Smith in 1984. Was Judge Keller aware of Joe U. Smith? Was she ignorant of it? Which is more troubling?

[26] Moore, The Status of Indigent Criminal Defense in Texas, Prosecutor Survey Results.

[27] Staff writer Diane Jennings contributed to this report.

[28] Lamesa is between Midland and Lubbock.

[29] Of course it is “technically wrong.” Under the old law, judges are not authorized to delegate selection of lawyers.

[30] Does he know? Does he have evidence? What constitutes a “good job.”

[31] This “shortage” would be solved by reasonable pay. If the pay was $200 per hour for all hours and lawyers were permitted to actually perform their job, the courthouse would be filled with lawyers clamoring for appointments.

[32] 26 @ $250 plus 68 @ $200 is 94 @ $20,100.

[33] 11 @ $200 is $2,200 while 11 @ $250 is $2,750.

[34] 15 @ $200 is $3,000 while 15 @ $250 is $3,750

[35] © 2001 DallasNews.com

[36] Could it have been like this: “Boy,if you ask for a lawyer I will let you rot in jail. Is that what you want, boy? I’ll appoint a lawyer for you, but it may be next year. Until then, you will be in jail without a lawyer. Then you will be in jail with a lawyer. You sure you want to spend the summer in jail, boy? You want to spend Christmas in jail, boy? Those old boys in jail may like having you there. Do you know what I mean? What do you think? Are you sure you want a lawyer?”

[37] Some citations omitted.

[38] State v. Watson, 134 Ariz. 1, 4, 653 P.2d 351, 354 (1982).

[39] McGowan v. State of Maryland, 366 U.S. 420, 427, 81 S.Ct. 1101, 1106, 6 L.Ed.2d 393, 400 (1961).

[40] Griffin v. County Sch. Bd. of Prince Edward Co., 377 U.S. 218, 230, 84 S.Ct. 1226, 1233, 12 L.Ed.2d 256, 264-65 (1964).

[41] State v. Bryant, 324 So.2d 389, 393 (La.1975). See also State v. Turner, 337 So.2d 1090, 1095 (La.1976).

[42] See Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983).

[43] See McGlothen v. Dept. of Motor Vehicles, 71 Cal.App.3d 1005, 1021, 140 Cal.Rptr. 168, 178-79 (1977).

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Sunday, February 18, 2007

John Thomas Hubert, were you ethically obligated to present unreliable and misleading evidence to a jury?

Tuesday, February 13, 2007

Thursday, February 08, 2007

d. Whether the Defendant's Right Was Violated.....

Look in their EYES. What do you feel?

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