Houston Chronicle

October 14, 2001

Defense attorneys criticize new law on appointments

Lawyers want process altered more

Texas has long been criticized for the quality of legal counsel it provides to poor people accused of crimes. So intense was the criticism recently that state lawmakers normally immune to pleas from criminal justice reformers passed the Fair Defense Act this year to do something about it.

"I think most people thought our system was the national poster child for reform," said state Sen. Rodney Ellis, D-Houston, who sponsored the legislation.

Among other things, the new law provides more money for appointed lawyers, requires the establishment of countywide standards the lawyers must meet and sets time limits for arrested people to be appointed counsel.

The most nettlesome provision, however, concerns the method of appointing the lawyers. In order to get the law passed, Ellis had to allow counties to figure out their way of doing it. All the law requires is that the system chosen allocate appointments in a "fair, neutral and nondiscriminatory manner" and be approved by two-thirds of the judges involved.

The result in Harris County -- a source for many of the examples cited in the parade of bad publicity -- is that the new system of making appointments probably will end up bearing a striking resemblance to the old one, at least for more serious cases.

Many attorneys who practice criminal law in Houston aren't happy about it.

"It's a little disheartening to see that they are unable to come together behind a single system and are staying with what essentially is the status quo," said Wayne Hill, president of the Harris County Criminal Lawyers Association.

Judges are charged with coming up with a system that meets the requirements of the law. The one floated last week by felony judges allows each court to choose one of a handful of ways to appoint attorneys for indigent defendants.

Chief Administrative Judge George Godwin argued that flexibility is needed.

"Why would it be better for everybody to use the same thing?" Godwin said. "It's like the old saying: Something made to fit everybody doesn't fit anybody. Every system has its advantages and disadvantages."

Though the felony judges' plan is hardly shocking, given the opposition of some of them to the legislation while it was being debated, criminal defense attorneys complain that it is at odds with the spirit of the reform measure. They want to see a more centralized method that essentially removes the judge from the approval of lawyers except for special circumstances.

The judges will have the final say. Passage of the current proposal, however, could invite a lawsuit challenging its legality.

Misdemeanor judges have indicated their support for the idea proposed by the defense bar in which a central coordinator is responsible for randomly selecting names from the master list of qualified lawyers and forwarding them to each court. The felony courts would have more freedom, however.

Most objectionable to the defense attorneys is the continued acceptance of so-called term appointments in which lawyers under contract essentially act as a single court's mini-public defender's office. They say such a method potentially compromises the independence of those attorneys, or at least the appearance of independence.

"Will he be independent enough of the judge to fight vigorously for the client?" said attorney Jack Zimmerman, who headed the committee that produced the defense bar plan.

"We don't think this is a question of the integrity of the judge. It's a question of human nature. How much risk would you take of irritating the judge who signs your check? I don't want any lawyer worrying about what the judge will think."

Godwin said he expects only a couple of judges to select a pure term-appointment system. Most courts, he predicted, will use a combination of methods.

At a meeting with more than 100 defense lawyers last week, Godwin acknowledged that, even after approval, the judges' proposal will remain an experiment and need to be tweaked.

"I don't think anybody's feet are set in concrete on this," he told the group.

Those words gave little comfort to Bill Beardall, a legal activist who helped write the Fair Defense Act. Beardall said the law does not impose a statewide system or even demand uniformity within a county, but it does encourage consistency.

"The essence of the plan ... is a laundry list of appointment methods that might be used," said Beardall, executive director of Equal Justice.

"That's as far as they go as a group. Part of what's hanging in the balance is whether the judges will rise to meet the spirit of the law or do only the bare minimum they perceive to be necessary."

Beardall said the culture of independence that underlies Texas' judiciary is nowhere stronger than in Harris County. Like Godwin, he thinks the steps toward a better system of appointments will be incremental.

"Part of the problem is that Texas as a state is trying to move from last place in indigent-defense quality of representation to the middle of the pack. That's a hard and long process to do," Beardall said

Zimmerman thinks the felony judges selected a plan similar to the current method more or less by default because getting two-thirds of the 22 to agree on a single approach might be impossible.

Whether their solution will pass muster is unknown. Ellis has heard the complaints from local criminal lawyers but said he is not interested in micromanaging the steps taken to meet the terms of the law.

If the quality of legal representation does not improve, Ellis said, the Legislature may revisit the issue the next time it meets. He does not consider the Fair Defense Act to be a finished product.

"It's still a work in progress," he said.