By Jeff Balke
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"Anybody who speaks to you at any length about Shelton will tell you the man is obsessed with efficiency, with speed," says Bailey. Instead of resetting the case, as other judges do, "he says, 'Well, we're going to hear the case. I'll get you an attorney, we're gonna get you in the court, off the docket, no more missed time, no more fooling around, we're going to do disposition, and we'll just work this attorney money out in this variety of ways.'
"Believe me, I've got ten other examples of ways he drives me crazy with this efficiency thing," says Bailey. "He doesn't do 'resets,' he just doesn't prolong the matters, and the fact is, most of these cases are really pretty clear-cut."
If they have the money, the family is quickly assigned a lawyer from a pool of attorneys in the court. But many of the families have yet to be evaluated by a juvenile probation officer as to whether they are poor enough to qualify for a free court-appointed lawyer.
"Again, because of this obsession for efficiency, a very disproportionate number of families who show up have never even seen the probation department," confirms Bailey. "These people haven't even gotten service [from a constable] yet. We literally call them up and say, 'You've got to be in court.' They haven't even met with us." And they haven't had a financial study to determine if they qualify for a free court-appointed lawyer.
If the family arrives without money, Bailey says, Shelton is more than likely to appoint a free lawyer. But if they have money, the legal show is ready to roll. Bailey himself says he wasn't aware that cash exchanges are taking place outside the courtroom, and allows as that might not be a good idea. "I think the whole idea of cash, as opposed to something traceable, like a check, that would be a bad idea," says Bailey.
State Senator Rodney Ellis maneuvered a controversial bill through the Legislature this session to strip criminal judges of the power to appoint attorneys paid out of public funds, only to have Governor George w. Bush veto it at the behest of GOP judges. Shelton's system is one step beyond what Ellis sought to stop. Shelton gets families, rather than the county, to pay for the lawyers he appoints for them.
University of Texas law professor Robert Dawson, an expert on juvenile law, sucked in his breath when Shelton's appointment system was outlined to him. "That's too bizarre for words," exclaimed Dawson. "Outrageous. That's O-U-T-R-A-G-E-O-U-S."
The professor explains why. "It is the judge's responsibility to determine whether the family is indigent. If they are indigent, it's his job to appoint the attorney and the county's job to pay for the lawyer, and at the end of the road, the family or the kid can be required to reimburse the county." According to Dawson, Shelton's method puts the cart before the horse.
University of Houston ethics professor Steve Schuwerk questions how a family can be required to pay a lawyer if indigence status has not been established. Just because someone brings $150 to court doesn't mean they are not indigent.
"Even indigent people have some money," says Schuwerk. "They can borrow money, they can not feed their children for the next two weeks, they can do something that lets them come up with the money. I would imagine there is no statutory basis for him doing this."
Shelton disagrees. "In my opinion," he says, "a judge can appoint a lawyer to represent somebody if [the family] has the funds, and in effect that becomes a retained attorney, and there is no appointment."
Fellow Judge Craft, whose relations with Shelton constitute a juvenile judiciary cold war, had this to say about her colleague's appointment system.
"If the ends justified the means, and the end is court efficiency," commented the judge, "you could say nobody could have a trial, or nobody could have a lawyer, I guess."
Shelton's frequent court appointee John Phillips sees nothing wrong with cash appointments except that he would like bigger fees from families. He argues that they are getting a quality of legal representation far above what their money would buy outside Shelton's court.
"They're getting me for 150 bucks," says the 18-year legal veteran. "Let me tell you something. They ain't gonna do any better than that. If that same family called me on their own, I wouldn't take it for 150 bucks. They'd have to pay me a lot more."
From Phillips' perspective, the only bad thing about Shelton's system is what happens if he doesn't work out disposition of the case that same day. "If we have to reset it, you know when they come back, they ain't going to have any [money]."
That points to the obvious: If a lawyer is unlikely to get further payments from a lengthy representation, it makes financial sense to plead the client out or seek some other immediate conclusion to the case that might not be the best outcome from the client's perspective.
One reason so many families arrive in Shelton's court unprepared is that he routinely sets a shorter period of time than other juvenile judges between the initial legal notice to the family and the first court date. And it used to be worse.