Defending the Indefensible

Behind the wood-paneled courtrooms of judges Ted Poe and Joe Kegans, like most other Harris County felony courtrooms, is a dark, nasty place called a holdover area. Above one of the two barred cells, which smell like the large urinals they basically are, read the words "Maximum Occupancy: 4." Inside the dank cell, eleven men in bright orange coveralls try to find a place to sit or stand as they wait to meet with their attorneys -- most of them court-appointed -- and learn what sort of deal their counselors may have cut with the district attorney's office. To the right, in another crowded cell, about a dozen other inmates also wait to hear from their attorneys.

"Three years!" exclaims a young black prisoner accused of unauthorized use of a motor vehicle -- car theft. After getting the news from his lawyer -- a thin, white man about 50 years old -- he presses his face between the bars and repeats his outrage over the offer of prison time. "Man, ain't no way I do three years for this. Tell them this was a misdemeanor and I ain't doing three years!"

"Look here!" replies the attorney, who seems equally agitated by his client. "Do you see any keys in my hand? Did I put you in here? You did this to yourself."

The two men, separated by jail bars, and by a more impregnable wall of experience and culture, trade expletives. Finally, the attorney walks back out to the free world to do more business.

It's a scene that is repeated hundreds of times every week in the Harris County judicial system -- one of the few of its size in the country that does not have a public defenders' office to represent indigents. Critics of the Harris County system -- a system that costs taxpayers millions of dollars annually -- also say many court-appointed attorneys often put the needs and desires of the court ahead of the interests of their nominal clients.

On the fourth floor of the Harris County Criminal Courthouse, two men squeeze through the crowded corridor and into an empty elevator. One, a stocky black man in a gray suit and ostrich-skin cowboy boots, pushes the button for the eighth floor. As the elevator begins its ascent, the black man, unprompted, suddenly speaks.

"Hell, I just found out I got a case set for trial today," says the man, attorney Ron Mock, seemingly amused by the surprise. He pauses and then continues after a few seconds of thought. "But, hell, they ain't even paid me."

Over the past 15 years, Ron Mock has consistently been one of the highest-paid court-appointed attorneys in Harris County. According to the Harris County auditor's office, in 1993 Mock garnered $54,341.81 for court-appointed work. Since 1985, his annual take from the coffers of Harris County has averaged $73,873.

Mock is best known in town for representing defendants accused of capital murder. Probably most notorious among his former clients is convicted murderer Gary Graham, whose case has received national attention, and who claims that Mock failed to call alibi witnesses on his behalf. But in addition to Graham, Mock has represented, on either the trial or appellate level, approximately 10 percent of the 100 or so inmates from Harris County now on Texas' death row.

Mock's critics -- and there are many -- say that what they describe as Mock's cavalier attitude toward his indigent clients is one of the most glaring examples of the court-appointed attorney system gone wrong in Harris County. His friends and supporters, and Mock himself, say those criticisms are unfair because, in reality, he is a good trial attorney who often gets less-than-good results in court only because he consistently represents the worst of the worst.

At 11 o'clock on a Saturday morning Mock opens Buster's Drinkery, the downtown bar he owns, to discuss his controversial reputation. Dressed in a tan shirt, slacks and pull-over sweater, Mock carries his glass of beer over to a well-worn booth inside Buster's. It's a dive located two blocks south of the criminal courts building on the northeast side of downtown Houston, where on weekdays the streets are filled with winos and attorneys. Mock, a relaxed and likable man, says he starts off each workday at his small tavern, where he can think and have breakfast before going to court. In his own estimation, Mock believes that he has probably tried more capital murder cases than any other defense attorney in Texas. And he likens himself to a trauma doctor.

"When the son of a bitch comes in there shot, you do what you have to do to do it, and that's what I do in the legal system," says Mock. "I never cheat. Never have, never will. I've never lied for a client. But I will represent them to the best of my ability and fight like shit for them. I will. I don't care what they've done.

"The worst was a son of a bitch who killed a six-year-old girl," Mock reflects. "Beat her to death with a board. Bit her arm. That was years ago, when we first got into forensic dentistry. And I hated that motherfucker. I hated him with a passion. But I fought like hell for him every step of the way. But I just couldn't look at that motherfucker without thinking, "You know, if that had been my daughter, you'd be a dead motherfucker. You'd be dead."

"But I never wavered, as far as my representation of him. And I think that was my true test. That was my true test that I could do this business. And it is a business. But I don't bullshit, and I don't lie, and my reputation is good."

Mock, who grew up in Houston's Fourth and Fifth wards and got his law degree at Texas Southern University's Thurgood Marshall School of Law 15 years ago, says he has gone on to represent some of the worst offenders the system has to offer. He maintains that judges continue to pick him to work such cases not because they want to make sure the bastards are put away, but because he does good work that won't be overturned on appeal.

"I deal with the worst cases that come through Harris County," says Mock, who estimates that 99 percent of his business is court-appointed. "The absolute worst. I mean totally heinous. Anything from oral and anal sodomy on your biological mother to baby-killings to just senseless capital murders. I do 'em all. Most of my cases go to trial. I don't give the state nothing. Ain't no gimmes. Ain't no getting close. This ain't horseshoes and hand grenades."

Ron Mock has probably received most of his notoriety for the work -- or, some say, the lack thereof -- he did representing Texas death row inmate Gary Graham. After a grassroots effort to save Graham's life, the Graham case has for the past year been the focus of local and national media attention.

In 1981 Graham was convicted -- primarily on the testimony of one eyewitness -- of killing Arizona resident Bobby Lambert in the parking lot of a Houston grocery store. Graham (who admitted having been on an extremely violent crime spree shortly before Lambert's murder) and his supporters now say that Mock, Graham's court-appointed attorney, provided what is known in legal terms as "ineffective assistance of counsel" by failing to present several witnesses who could have testified to Graham's possible innocence. A state appeals court is currently considering whether Graham should be granted a new trial.

Mock says he is being wrongly made a scapegoat by the Graham forces. But he seems more hurt than angry that they would question his ability and effort while serving as Graham's attorney.

"When you sign on for a penny you sign on for a pound," Mock says philosophically. "You know when you sign on for a capital murder case, ten years down the road somebody's going to second- guess what you did. So, I don't have any bad feelings about it. I don't have any mixed feelings about it. It's one of those things that happens, that I've had happen before, that will happen again. And it doesn't really bother me that much. Because I know in my own heart and in my own mind that I did everything I was supposed to in Gary Graham's case.

"His folks never came down," continues Mock. "His good-talking father that's down here now, and all those witnesses. Nobody came forward. The only people we could find to say anything about Gary Graham said it bad. My only concern is, that's the only [case] I'm really not sure of. [Prosecution witness] Bernadine Skillern was a very credible witness. I mean, as strong as an acre of garlic. But it's the only [crime] that in my own mind that I'm not sure that he did. And it concerned me from day one. Because when you're talking about killing somebody on the testimony of one eyewitness, it bothers me."

Attorney Bob Tarrant, a widely respected attorney whom Mock describes as one of his best friends, also believes that Mock has received undue criticism for his handling of the Graham trial.

"I think Mock is an excellent lawyer," Tarrant said in a telephone interview, in which he gave a qualified endorsement of Mock. "I don't see anything wrong with appointing Mock to all those [capital murder] cases. He knows what he's doing, and if he doesn't know what he's doing he goes and asks somebody or goes and researches and finds out what's there. Maybe he did miss something in [the Graham case]. But, shit, I've missed something in cases, too. Everybody can't be perfect."

Jim Lindeman, a former prosecutor in the Harris County district attorney's office, agrees with Tarrant's assessment of Mock, although he jokingly refers to the court-appointed attorney system as the "continued employment system."

"I like Ron," said Lindeman, who is currently seeking a position on the Harris County Commissioners Court. "I think he's controversial. But I like him, and I think he, in the cases I've seen, has done a good job for his clients. RonÕs sometimes very gentlemanly and easygoing in court. But then in the trial, you realize he is not going to sit back and be passive, as he might appear at times."

But many of Mock's legal colleagues, several of whom did not wish to be named, take a dimmer view of his legal skills and, more specifically, of his work habits.

"I like Ron Mock," said an attorney who has handled several capital murder cases. "Ron Mock is not a bad lawyer. He has got a lot of talent as a trial lawyer. He is good with juries. He's sharp. He's no dummy. Ronnie Mock's problem is that he really doesn't care. It's as simple as that."

Noted criminal defense attorney Randy Schaffer, who testified as an expert witness in the appeal of one of Mock's former clients now on death row, agreed to talk on the record about Mock. Schaffer was instrumental in the release from prison of Randall Dale Adams, who had been serving a life sentence (commuted from death) for the murder of a Dallas police officer. Defense attorneys were able to demonstrate that the state had suppressed evidence in the case, which was later featured in the documentary film The Thin Blue Line.

Schaffer was not very forthcoming about Mock, but his pointed silences revealed more than his words did as he sat in his high-rise downtown office, wearing cartoon-character suspenders and necktie.

"I like Ron Mock personally," said Schaffer, pausing for five pregnant seconds of silence before repeating himself. "I like Ron personally."

Pressed further on the subject, Schaffer finally added that "the public record will demonstrate Ron Mock's performance in various cases."

Last summer, attorneys from the Texas Resource Center filed in federal court a brief on Gary Graham's behalf. The TRC is a federally funded organization with the task of providing counsel for indigent death row inmates. The brief suggests that contrary to what he had recently told the Press, Mock did indeed believe that Graham was guilty from the outset of the case and, therefore, did not put much effort into defending him. The document cites a conversation with Merv West, the investigator who worked with Mock on Graham's case.

"Because we assumed Gary was guilty from the start we did not give his case the same attention we would routinely give a case," West is quoted as saying. "We just did not have time to worry about a guilty client, and I would not have felt comfortable trying to find evidence that would have proved him innocent. It may sound unfair but that's just the way it was."

But it's not just his controversial handling of the Graham defense that has tainted what Mock describes as his good reputation. Numerous times have Mock's clients asked the courts to remove him as their attorney.

* According to stories in the Houston Chronicle, in 1988 capital murder defendant Frances Newton unsuccessfully attempted to have Mock dismissed as her attorney because she believed that he thought she was guilty. Newton was subsequently convicted of killing her husband and two children, and was ordered to be executed by lethal injection.

* In 1990 Frank Valdez, an accused cocaine trafficker, attempted to have Mock removed as his attorney so he could represent himself. He eventually received a life sentence for possessing two kilograms of the drug.

* In 1991 Mock told the Chronicle he believed that one of his clients, convicted of stealing his grandmother's microwave oven in order to buy cocaine, should have been sentenced to more than the six months he received. "I hate this guy so much for what he did to his grandmother that I'm not even going to turn in a voucher to get paid for this case," Mock was quoted as saying. "I think he should be in jail for ten years."

* In 1992, during jury selection in the case of a man accused of theft, Mock actually selected a police Internal Affairs supervisor over a prospective juror who happened to be a defense attorney. Mock explained his decision to the Chronicle as a "tactical" move.

* Also in 1992, Mock was reprimanded by the State Bar of Texas after failing to respond to the Bar about a grievance filed by a former client. Mock had offered to testify against the client. Mock recently explained to the Press that his offer was intended as a joke.

* Last year Mock represented 19-year-old Searcy Deshun Singleton, who was charged with capital murder in connection with a robbery/murder. According to files the Press obtained from the Harris County district clerk's office, before the trial began, Terry Singleton -- Searcy's father -- wrote a letter to the judge presiding over the case, asking for Mock's removal as his sonÕs attorney. Contacted at his home in Maryland, the elder Singleton refused to discuss his displeasure with Mock. However, in the letter to Judge Donald Shipley, Singleton wrote, "Attorney Mock refuses to show interest in the case. Mr. Mock refuses to speak with Searcy...

"Mr. Mock's reputation in the legal community is less than attractive and this surprises me. He appears confident and zealous. Some attorneys attribute this to a possible addiction to alcohol. I am not calling him an alcoholic or an incompetent attorney. I do feel he's truly unconcerned about his client. I ask that he be dismissed."

Searcy Singleton was sentenced to life in prison. To Mock's credit, the case marks one of the few times that one of Mock's capital murder clients did not receive the death penalty.

Convicted murderer Gary Graham is not alone among those of Mock's former clients who quite possibly could be granted a second trial.

In 1985 Anthony Ray Westley, 23 years old at the time, admitted to taking part in the robbery of a bait-and-tackle shop near Lake Houston. During the holdup, 25-year-old store owner Murry Dale Stewart was shot to death.

Westley claims that he saw Mock only once during the approximately 18 months before he went to trial. Because of that neglect Westley, like many other former Mock clients, filed his own motion to have Mock removed as his attorney. Judge Norman Lansford turned the motion down.

"After the motion got denied, all I could do was sit back and watch it come to me," said Westley.

Even before testimony began in his trial, Westley got a sense of things to come: Mock himself was arrested during jury selection. Mock had failed to file certain necessary papers with the Texas Court of Criminal Appeals in connection with yet another capital murder case. Locked inside a cage and separated from reporters by glass and wire in the death row visiting area at the Ellis-1 prison unit near Huntsville, Westley -- a large, thick-chested black man dressed in prison whites -- recalled the beginning of his trial.

"I was sitting in [the courtroom] when he was arrested," said Westley. "I seen two people come in with plain suits on and they just asked where was Ron Mock at. They went up to the judge and said something to him and he said, "Okay, I guess so." He told me to stand up and he read something. I guess it was a warrant. [Mock] looked at me and said, 'I guess me and you is going to jail.'"

Mock served one day in jail and was fined $500 for contempt of court. Meanwhile, attorney Frank Alvarez -- who was assisting Mock and who had never handled a capital murder case -- temporarily replaced Mock, as jury selection continued.

"Mr. Alvarez told me himself that he didn't know what to do," said Westley, who could only watch anxiously as a jury that was to decide whether he would live or die was impanelled during Mock's incarceration. "They kept going. They didn't stop."

Mock had rejoined the defense team by the time testimony began. Westley accused Mock of ignoring evidence from the trial of another man also charged in the robbery/murder -- evidence which suggested that he, not Westley, had been the trigger man. Westley also claims that he offered to take a polygraph test, but Mock told him it would not be necessary.

Westley was convicted and sentenced to death. His accomplice received a 35-year sentence. Westley said he and some of the other former Mock clients now on death row have discussed filing a joint lawsuit against the attorney. Unfortunately, said Westley, some of the ringleaders of the effort were executed last year.

"He's got more people on death row than anybody I know of," said Westley. "That man ain't doing something right."

According to attorney Barry Abrams, who is handling Westley's federal appeal, Westley was eventually granted a second trial in a lower state court, which found that Mock "had been ineffective in a variety of ways."

"After an inmate has been convicted and has appealed his conviction," explained Abrams, "if he wants to later bring a habeas corpus petition to complain about things like ineffective assistance of counsel, he files a writ of habeas corpus in the state trial court. That court normally, as you might expect, doesn't find anything wrong with the trial proceedings, because in most trials you would expect that they would be conducted fairly.

"In this case, the trial judge found a lot wrong and made a recommendation that Westley get a new trial," said Abrams. But that decision was then reviewed by the Texas Court of Criminal Appeals.

"It's really the Court of Criminal Appeals who has the final say-so in these kinds of cases," Abrams lamented. "And despite the very lengthy fact-findings of all the different things that were wrong with Westley's trial, in a one-paragraph statement without any reasoning, the Court of Criminal Appeals denied Westley a new trial."

Abrams has since filed a federal habeas corpus petition -- based on the grounds found by the state court -- in hopes of eventually getting Westley a second trial.

"I frankly entered the case assuming that he had been given adequate counsel [by Mock]," said Abrams. "I didn't go into thinking that we would find all the problems that we did find. But his trial was so bad, and what we uncovered on Mock is so bad, that I was horrified. I think everybody who has touched this case has been horrified."

In the application for a post-conviction writ of habeas corpus Abrams has filed in federal court, Abrams wrote that, "Westley's appointed trial counsel consisted of a lead lawyer engaged in a high-volume trade of appointed cases who had been cited five times during the period of Westley's representation for failing to meet required court deadlines, had been arrested for contempt of court during the jury selection, maintained no library regarding capital or criminal law legal developments, claimed to keep abreast of current legal developments by reading in the wee hours of the morning, failed to conduct any meaningful investigation into the key factual issues in the case, failed to consult with any expert regarding key issues on which he was uninformed, and was well-known to drink daily after work on an "above-average" basis.

"Against this backdrop," the appeal continues, "it is hardly surprising that the counsel failed to perform their responsibility in capital litigation competently or, as Mr. Mock so colorfully put it when questioned about the number of times that the courts have found his legal representation lacking, "Shit happens; it just happens.'"

Mock discussed his work habits and his lifestyle with the Chronicle in 1986: "I try more cases than most law firms. I do 40 jury trials a year. I work four days a week in trial, and then spend three days a week preparing. I work, I drink a lot of whiskey, and I'm married to a little woman who kicks ass. I have to be home by dark." (Mock recently told the Press that he and his wife are now separated.)

Robert Jones is a lawyer who lives near Mock and is familiar with his work. Jones believes that Mock may have tried too many capital cases in too short a time, but he stops short of saying Mock is burned out or jaded.

"I don't know if it's burned out," reasoned Jones, "because [Mock] keeps going back. "Burned out" means you say, "Look, I don't want any more. I don't want to deal with it." But you can become narrow in your approach. It's something of that nature. You lose sight of the fact that you have to use all your talents. You have to be innovative. You have to be far-sighted. You have to continually question the fairness of what's occurring."

Jones also believes that Mock may have had those attributes at one time.
"But I have heard him say things that would cause me to believe [otherwise now]," Jones said.

As for the suggestions that Mock is a heavy drinker, Jones said only that "this is hard work, and lawyers get depressed." But he also said he did once offer Mock some advice.

"I made a statement to him once, I believe," said Jones, "that I would not be satisfied as a lawyer trying capital cases until I went to death row, and there was a person that I had represented and would be executed. And that I would sit and watch his execution. And then I would decide whether I ever wanted to try another capital [murder case]. Because I wanted to be sure that I knew what the ultimate result of what I was doing would be. I think you'd probably have fewer lawyers trying capital cases if everybody had to go to death row and watch somebody die."

But after he'd spoken with Mock, Jones said, the controversial attorney maintained the attitude that "'somebody's got to do it. They're guilty and that's that.'

"I think [Mock] is a decent human being," continued Jones, "who should probably step back and think about this. And I think any lawyer who does a lot of capital cases probably should step back and think about it. You're supposed to get better as you do something over and over again. But I don't know if capital cases are like that."

Mock, meanwhile, maintains that his clients are well-represented in court, a place he dearly loves.

"I had planned to be a corporate labor lawyer," says Mock, "but I fell into this. The advocacy part of it attracted me.

"But I do it like my mama raised me. With respect and dignity. I don't disrespect anybody, but I'll fight like hell for them. And they'll probably carry me out of the goddamn court house on a stretcher when I die."

Robert Jones also warns against focusing only on Mock when it comes to adequate representation of the indigent, especially in capital murder cases.

"I think if you direct [the story] at Mock, you'll miss the boat," advised Jones, who believes that Mock is just one example of the problem. Each day in the Harris County Criminal Courthouse begins with lawyers -- some good, some not so good -- jockeying to be appointed to cases in various courts. The process is the same for all district courts, except those presided over by a handful of judges who have hired one or two lawyers to handle all their indigent cases.

"Lawyers are sitting in the jury box like crows on a fence, waiting for the judge to parcel out the little pieces of bread," said attorney Randy Schaffer. Schaffer believes that some judges are more interested in moving their docket than in justice.

"They've got some defendant who's just been arrested up to the bench," Schaffer continues, "and [the judge] qualifies the defendant as being indigent. [He] looks in the jury box and picks out lawyer X and says, 'Lawyer X, you've been appointed to represent Mr. Jones. Get together with the state. Review the state's file. Talk to your client. And then let me know what can be done to resolve the case today.

According to Schaffer, the court-appointed attorney system is in desperate need of improvement and refinement, if not an entire overhaul, on many different levels -- but especially when it comes to appointing attorneys in capital murder cases.

"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.

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."

Burnett said the certification plan will be formed by a committee consisting of defense attorneys, prosecutors and members of the judiciary. The proposed criteria would have to be approved by the 22 state district judges who hear felony cases in Harris County. David Cunningham, one of the defenders on the panel appointed by Burnett, said it's a step in the right direction.

"Many judges realize that this is the ultimate, and we need to get good, qualified lawyers to do this," said Cunningham. "It's a recognition that these guys have been charged with serious crimes and they need competent lawyers.

"There's also a recognition by the judges that if we appoint someone who's going to get down and get dirty on the case, it may resolve itself with a life sentence. It may resolve itself with a lesser charge. Because prosecutors know who's good and who's not good. And they know who's going to fight you tooth and nail."

But even a certification process for lawyers who try capital murder cases cannot ensure that an attorney will give a damn once he or she gets to court. Cunningham said it's going to be incumbent upon judges to select attorneys who will go to the mat for their indigent clients.

"The stakes are very high," said the lawyer, "and it's real serious shit."
Or, in the words of Ron Mock, this ain't horseshoes or hand grenades -- and shit, indeed, does happen.

Valerie Moore and Edith Sorenson contributed additional research to this story.


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