Defending the Indefensible

Do court-appointed attorneys serve their clients or the courts?

While this is an astounding percentage, it reflects the fact the Harris County courts set some of the highest bonds in the country. It also means that a public defender's office would not need to receive as much money as the district attorney's office. However, most agree that the county's prospective startup costs make the possibility of a public defender's office in Harris County dim and financially unattractive -- especially during a violent time when there is a growing mood among the public and politicians to "lock them up and throw away the key."

Given the unlikelihood of the birth of a public defender system in Harris County anytime in the near future, attorney David Jones (no relation to Robert Jones) would like to see court-appointed attorneys selected from a pool of lawyers with no daily relationship to a particular court in order to shake up what he calls the "political subculture" of attorneys who depend upon judges for their livelihood and who help finance judges' election campaigns.

"They see themselves as attachments to the judge's office almost," said Jones. "And that's sort of okay, as long as the judge in the fact-finding process in criminal courts is a neutral factor. But in the present climate, where judges see themselves as enforcers of law against the bad guys, then court-appointed lawyers become just so much baggage. They can't get in the way. Because many judges see their role to be one of a law-enforcement character. So they've lost their sense of neutrality. So what happens to the court-appointed lawyer then -- who, unless he's hired by the judge and paid by the judge, doesn't make a living?

"There is one step we could go to before a P.D. system, and that is to have [the appointments] neutrally assigned, an independent pool of attorneys," Jones proposed. ÒEveryone who is certified by the State Bar of Texas as a specialist in criminal law is in one pool. And they're assigned habitual cases and murder cases, capital murder cases. And that's the pool that gets the serious cases. Everyone else who may have ten years of experience or more becomes eligible for any and all other felony appointments. That would take away the judges' political help. And it would shake up some of the attorneys who have become part of the courtroom furniture."

Although he downplays the seriousness of the situation, State District Judge Jay Burnett acknowledges that there are problems with the court-appointed attorney system, and with judges preoccupied with keeping their docket moving.

"I will say this: I have heard the same thing," Burnett said in his office behind his courtroom, on the sixth floor of the courthouse. "I have no first-hand knowledge of anybody doing that. I think if it is being done, it's a travesty.

"But I hear the same things you hear. Judges with high dockets get a lot of pressure, especially this [political] time of year. If your docket is high, you're a target. And some judges, that's one of their goals -- to keep it down. Now, they can argue on the other side of the coin, 'I keep it down, the cost is down.' Things of that nature. If you're going to make the standard of a good judge if your docket's real low, then I'm afraid you put that kind of pressure on judges."

But Burnett is currently more concerned about ensuring that persons accused of capital murder get effective representation. The judge is spearheading a proposal to establish criteria under which attorneys would have to be certified before they could handle a capital case. That's because during his eight years on the bench Burnett has come to the conclusion that the capital murder system in Texas -- the state with the largest death row population in the country -- is broken, and at a time when the number of cases filed as capital murders is increasing. The judge hopes that by trying to ensure that a lawyer is qualified to handle a capital murder trial, the number of appeals -- which cost the state an average $1 million or so each -- on the grounds of ineffective assistance of counsel will be substantially reduced.

"We want to begin at the front end rather than wait till the end of the process," said Burnett. "What happens now is that you get all this frenetic movement at the end. Last-minute appeals. It strings things out.

"We feel that [we must] go to a course where we certify lawyers. From that course they take a test. We will then have a pool of lawyers who are certified, who are experienced. That takes it out of this appointment situation where, for example, a judge happens to appoint someone who has never tried a capital case. Because we do have elections and that does factor in every once in a while. We don't live in a vacuum.

"And most of the judges are saying to me, "Oh, yes, take that out of my hands. I don't want to be an elected official and be appointing people that are not qualified." So if we get those folks that are qualified to try these cases to begin with, then I feel, and I believe the other [21] judges do also, that we will have taken care of that issue as the cases come back through on effective assistance of counsel -- which is the predominant issue."

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