San Antonio Express-News

December 4, 2001

Metro and State

Poor's counsel to be quicker, better paid

By Lisa Sandberg San Antonio Express-News

Poor defendants who are charged next year with felonies in Bexar County can consider themselves lucky: They will be guaranteed an attorney within a business day of their arrest. And that court-appointed attorney, in most cases, won't be fresh out of law school or the lowest-paid professional on the block.

Six months after state lawmakers opted to overhaul the hodgepodge system of indigent defense, Bexar County has adopted sweeping changes to the way it provides free counsel to the poor.

It has set minimum standards for lawyers accepting court appointments. At the same time, it has significantly increased attorneys' fees and made lawyers less beholden to judges for appointments.

Adopted over the past three weeks, the new plan also establishes a uniform cutoff for indigence.

Those who drafted the reforms hope they will help reverse the state's poor national image when it comes to court-appointed representation.

"The goal is to improve the lot of poor people by making sure they get adequate representation by people qualified to do the job," said state District Judge Mark R. Luitjen, who headed the committee overseeing attorney qualifications.

Late night television talk shows and national editorials have seized on the issue of the state's system of indigent defense, targeting court-appointed attorneys who doze during capital murder trials and judges who dole out appointments to lawyers who contribute to their campaigns.

Texas has had no uniform system of providing indigent defense. The task —— and the funding —— has been the sole responsibility of the state's 254 counties.

The rock-bottom fees paid to court-appointed attorneys have pressured more than a few to plead clients guilty in order to move on to the next case.

"A lot of time defendants get sent up the river because they don't get good representation," said William Davidson, a San Antonio lawyer who works mostly on court appointments. "If a lawyer isn't paid adequately, he'll go to the next case. That's a fact."

Stung by such criticism, state lawmakers opted last spring to change all that with the Fair Defense Act.

The law requires counties by Jan. 1 to adopt guidelines for minimum standards in the appointment of counsel. And for the first time, the state has promised $19 million in funding, though no one yet knows how the money will be divided.

Bexar County spent $4.6 million on indigent defense this year and has earmarked an additional $1.5 million to cover the higher attorneys' fees.

The new fees are the first increases in 13 years and apply to both in-court and out-of-court hours.

Under the county's old system, a lawyer hired to represent a defendant on a first-degree felony could make no more than $200 in court a day.

By electing to take the new hourly rate of $125, that lawyer can now make $750 for the same six-hour day.

The flat fee on a first-degree felony plea will jump to $750, from $400. For a second-degree plea, the rate will rise from $300 to $500.

The raises will be gradual to keep costs from spiraling out of control.

"The judges are committed to staying within the budget," said Melissa Barlow Fischer, Bexar County's criminal district court administrator. "They really don't want to go back to the commissioners and say 'We blew the money. We need more.'"

While the new fees are significant, no one appears to be accusing the county of being lavish.

"No one's going to get rich off court appointments," state District Judge Sid Harle said, noting that lawyers use their fees to cover the cost of an office. "The increases are minimal. What this does is allow attorneys to make up for what we didn't do before."

George Scharmen, founding president of the San Antonio Criminal Defense Lawyers Association, called the increases "fair" but said they weren't high enough for him to seek court appointments.

The plan also establishes a figure for determining indigence. Defendants can get a free attorney if, after paying "all necessary expenses," they have less than $716 a month left over.

Though they won't be required to show paperwork, defendants will have to swear that the financial information they provide the court is true.

Lawyers who represent poor defendants express anxiety about some aspects of the plan, such as the manner in which appointments are distributed and the qualifications needed to get on the list of eligible lawyers.

Gone are the days when a lawyer could land a murder case fresh out of law school: A lawyer will need at least a year's experience in misdemeanor courts to be eligible to try a simple felony and at least five years to try a capital murder case.

The 370 lawyers who say they want court appointments must be approved by a majority of judges. Those who are approved will be selected from a rotating wheel, a practice that's used to some degree already.

But judges, who have wielded considerable power in assigning cases —— and have sometimes been criticized for favoring lawyers who support them politically —— maintain some discretion in appointments to capital cases.

For Davidson, a five-year veteran, such changes cause angst. He's generally happy about the new fees but worries about landing enough work.

"If I have to wait to get an e-mail to find a case, I don't know if it'll be enough work to stay in business," he said. "None of us knows how it's going to work."

He said younger, less experienced lawyers are particularly fearful of the future. He said he knows about seven lawyers who have decided to seek work outside the court-appointed system.

He wonders how realistic it is to require attorneys to meet with clients within a day of being assigned a case. The jail, for starters, has only eight visiting windows.

But however much the old system benefited him, he knows it needed changing. He remembers landing a felony case his first day on the job. He gives an example.

"A guy's looking at 20 years for kidnapping and you're defending him (right out of school) and wondering, 'How do I even pick a jury?'"