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By Richard Connelly
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In its first six months, there were few public complaints about the new system for selecting publicly paid attorneys to represent poor defendants in Harris County criminal courts. But that seems to be rapidly changing as several lawyers claim the system is being manipulated in at least one juvenile court, while county criminal judges are pushing for a return to the old ways of appointing lawyers.
Criminal court judges under the old procedures had often appointed friends and political contributors to represent indigent defendants. The Texas legislature last year passed the Fair Defense Act, co-sponsored by state Senator Rodney Ellis of Houston. It sets qualifications for court-appointed lawyers as well as selection methods to minimize cronyism.
The law offers options including a master list of lawyers approved by district judges and a computerized random-selection process. Houston judges lobbied heavily in Austin for compromise language in the act that allows them to ignore some of the requirements and choose alternate appointment systems.
"The intention was to help ensure that even the poorest people in our state had access to fair and due process," explains Ellis. "Legislation allowed the counties a great deal of local control in this endeavor. Any attempt to subvert the intent of the law risks preventing someone from getting adequate representation."
Under the system adopted by Harris County, criminal and juvenile courts and judicial referees work off a master list of attorneys, using a system of rotation to pick from among five names. The attorneys not selected are then eligible for the next appointment.
In Juvenile Judge Pat Shelton's 313th District Court, several attorneys claim the new law doesn't seem to change things much, at least for the lawyers who contribute heavily to the judge and get the lion's share of the court's appointments.
The law went into effect at the end of 2001. For the first five months of this year, the top seven attorneys receiving appointments by Shelton were George Clevenger, partners Glenn Devlinand John Phillips, Oliver Sprott Jr., Evan Glick, Kathleen Robbins and Dan Kundiger.
Republican Shelton is running for re-election against Democrat Teresa Ramirez -- and the early big contributors to his effort just happen to be six of those same seven lawyers. Shelton's campaign report covering last fall lists Devlin as contributing $4,500, presumably covering his law partner's share, Clevenger anted up $2,000, Glick $3,000, Sprott $5,000 and Robbins $1,000. Kundiger contributed only $500, but there's plenty of time before November to catch up with the pack.
Rewind to July 1, 1999, when the Houston Press feature "Bully on the Bench" focused on Shelton. It reported that Phillips, Devlin, Glick and Sprott were among attorneys participating in a controversial cash appointment system pioneered by Shelton. If defendants and families arrived in court without an attorney, Shelton would tell them to hire one of the lawyers present. The cash payment would be made in the hallway outside the court.
The small clique of attorneys has fed well at Shelton's court table. Latest figures show that, this year to date, the 313th has approved payments to Sprott of $70,186, more than $56,000 to Devlin and Phillips, $45,550 to Glick and $53,054 to Clevenger.
By contrast, the highest total paid by Juvenile Judge Mary Craftto an attorney this year was $23,455 to Bonnie Fitch. The highest for Juvenile Presiding Judge Kent Ellis was $28,242 to attorney Aneeta Jamal.
Back in 1999, an attorney who practices in the juvenile courts told the Pressthat Shelton's former court coordinator advised him that a $1,000 minimum contribution would be helpful if he wanted appointments in the 313th. The level of contributions seems to have risen faster than the inflation rate.
Shelton referred calls about the new appointments system to Judge Ellis, the administrative jurist. However, Shelton court coordinator Zoe Smith expressed surprise at the idea that certain attorneys were continuing to receive the bulk of the appointments.
"We're on the computer system," she exclaimed. If so, it seems to be a computer with some well-honed political instincts.
Malazzo says she uses the same rotation system as the juvenile judges, and the attorneys are appointed before they're assigned to a particular court. She has no explanation for why the same attorneys would continue to get more appointments in the 313th.
Asked about the differences in the appointment pattern between his court and Shelton's, Judge Ellis replied, "I really don't know how to account for it other than to say historically he has tended to do more appointments in the courtroom, and I don't know how that's happening down there, if it's happening down there. So I don't know how to explain the anomaly you're talking about, if it exists." Ellis says he's received no complaints from attorneys about it.
Ellis is critical of the selection method, explaining that it has introduced lawyers who are unfamiliar with the juvenile justice system. He says the task of notifying attorneys picked from the list is weighing down court coordinators with paperwork and phone calls, and resulting in higher fees for lawyers because of multiple visits to the detention center to handle cases. Ellis is mulling changes to present to the county juvenile board.
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