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"You have 22 felony district courts," Schaffer said. "And essentially you have a different set of rules in each one of them, as far as the appointment of counsel is concerned. Some judges, for example, in capital cases appoint good lawyers to afford the defendant a fighting chance. Other judges, who are perhaps more inclined to achieve a particular result, appoint the sort of lawyers who in fact do just get things over with quickly. They can get a jury picked and a capital case tried in a couple of weeks, with a death sentence and no issues preserved on appeal. There are too many lawyers who keep getting appointments to capital cases over and over again whose results have demonstrated they are not competent to handle those kinds of cases. But the judge's agenda is such that, in my opinion, that's the result he wants, and he appoints the lawyer most likely to get it.
"You see 10, 12, 15 guys back in the holdover cell, and their court-appointed lawyers lined up to talk to them," Schaffer continued. "This is the first time they've met the people. The lawyer says, "I've read the state's file and it says you did A, B, C and D." And he starts having a conversation with the defendant through the bars of the holdover cell, or maybe when the defendant is handcuffed to a bench. And there's 15 other defendants present, half a dozen lawyers, probably a couple of deputy sheriffs, court personnel, whoever's floating around. No confidentiality. No privacy. Any attorney/client privilege is obviously waived because there's others present. If the client reveals confidential information, it's available for anybody to hear. If the client has a brain cell in his head -- and some of them don't -- but if he does, he's going to say to himself, "I can't have a private discussion with my lawyer in front of all these other people."
"So he won't tell them anything. Whatever the offer [from the D.A.] is, if the lawyer wants the guy to take it, he sits back there in front of other people and tells him, 'If you don't take this offer today they're going to withdraw it, they're going to raise it, you're going to get life' -- just really puffing up the state's case.
"And it seems to me the lawyer's obligation is to poke holes in the state's case. Challenge it either legally or factually, and give prosecutors reasons to lower offers or dismiss cases. But the mindset of a lot of court-appointed lawyers is to please the judge, to curry favor with the judge by getting a quick guilty plea from the client. Then everybody's happy. The judge has the case off the docket. The prosecutor doesn't have to mess with it. The defendant is off to wherever he's going.
"And the lawyer has made a relatively decent fee, about $150, for basically an hour of his time. That's much more economical for a lawyer who's earning a living off of court appointments than to reset the case, go out and investigate, probably not get paid for his time, have to do a bunch of work, and maybe aggravate the judge by keeping the case on the docket."
Criminal defense attorney Wayne Heller agrees, but added that there are many good court-appointed attorneys and that he used to take quite a few appointments himself.
"The natural process is that [an attorney] wants to stop doing court appointments," said Heller, who recently defended a man accused of having his girlfriend's teenage daughter videotape him and his girlfriend having sex. Although the prosecution was seeking to have the man put away for 20 years, Heller got him off with three. The verdict is being appealed.
"Court appointments are the lowest-paid cases," said Heller. "They're the hardest cases to work out. Invariably your client hates you because you're just a court-appointed lawyer.
"There's this fiction that there are "court-appointed lawyers" and "free-world lawyers." And free-world lawyers are good and court-appointed lawyers are bad. Of course that's not true, because there's a hundred free-world lawyers who are absolutely walking malpractice. I mean, the only thing worse than a bad court-appointed lawyer is a cheap retained lawyer. Because those bastards can't even get court appointments."
Heller agrees with Schaffer that many court-appointed attorneys are afraid of offending judges by fighting hard for the clients.
"There's no question about it," maintained Heller. "The number-one rule down there is that if you raise hell for your client on an appointed case, the quickest thing that will happen is that you will stop getting court appointments. There's a good [attorney] Dick DeGuerin quote that if the judge is pissed off at you, and the D.A.s hate you, and the court reporter is sick of listening to you, and the court coordinator doesn't want you in there, you gotta be doing something right."
Both Heller and Schaffer said they used to oppose the idea of a public defender's office in Harris County but now believe that one is needed to ensure that indigents receive adequate representation. Both agree that a P.D.'s office, to be effective, would have to be funded on a level comparable to the district attorney's office. According to figures compiled by the administrative office of the District Courts, in 1993 the county paid almost $13 million to court-appointed attorneys -- roughly $7 million less than the D.A.'s annual budget. Their statistics also indicate that court-appointed attorneys handle approximately 80 percent of the felony cases filed in Harris County.