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November 20th, 2013
Freethought San Marcos: Failures of the court-appointed attorney system


Freethought San Marcos: A column

Twenty-three years before Michael Morton was wrongfully sentenced to life in prison, another man, Clarence Earl Gideon, was wrongfully sent to a Florida prison for five years for theft.  One difference in their cases is Gideon had been a petty criminal all of his life, while Morton had been an exemplary citizen.  The important similarity between their cases is that both were innocent of the crimes they were tried and convicted for, though their convictions occurred for different reasons.

Gideon’s case is significant because the state of Florida would not provide him a court-appointed attorney, even though he could not afford to hire one.  He represented himself and was found guilty.  After educating himself a bit while in prison, he filed a request for relief to the US Supreme Court alleging that his right to an attorney under the Sixth Amendment to the Constitution had been abridged because of his poverty and the state’s failure to provide an attorney to represent him.  Gideon won his right to counsel and was subsequently acquitted of the crime for which he had served two years in prison.

Gideon’s case, decided 50 years ago, required that all persons accused of a crime that could be punished by jail or prison time were entitled to an appointed attorney if they were unable to afford to hire one.  The results were felt in every state as thousands of inmates were either released or given new trials with a court-appointed attorney.  The requirement for appointed counsel placed additional financial burdens on state and local governments.  Most courts implemented the Gideon decision by appointing local attorneys to represent indigent persons accused of jailable offenses.  What those local attorneys are paid varies widely throughout the country.

While a limited number of court-appointed cases are handled by public defender offices established in some jurisdictions, there are few such offices, mainly because they cost more than the appointed attorney system.

In this column, I am not attempting a thorough analysis of the criminal justice system.  That would take at least a book-length narrative.  For readers interested in a thorough understanding of how the system operates, I recommend any of the books by Abraham S. Blumberg, a criminologist and sociologist whose provocative opinions of law enforcement and the legal establishment I encountered during law school.  One of Blumberg’s most famous works is an essay, ”The Practice of Law as a Confidence Game: Co-opting of a Profession,” which has been reprinted in more than 50 anthologies and can be found through an online search.

My purpose, instead, is to point to a recent advance in understanding the role of a criminal defense attorney, particularly a court-appointed attorney, in the criminal justice system, and propose some simple practices that may help those accused of crime, as well as those who represent them.

One of the few jurisdictions in Texas that has a public defender system is Harris County, Texas, where 70,000 criminal defendants are represented each year by court-appointed lawyers.  In 2012, half of those cases were handled by the public defender office.  A recent report on this pilot program, whose federal funding will end a year from now, is explained by an article in the Texas Observer: “[The report] found that felony public defender clients were acquitted three times as often as those with assigned counsel. Misdemeanor public defender clients with mental illness saw their cases dismissed five times as often, and both felony and misdemeanor defendants represented by public defenders were more likely to have their cases taken to trial than end in a plea deal.”

Clearly, public defenders represented their clients more successfully than did private attorneys appointed by the courts.  The Harris County Public Defender program is more successful partly because its staff is salaried, experienced, mentored, and supervised, with access to resources that don’t cost them money out of their own pockets.  Also, they cannot take too many cases, but must follow national standards for caseload size.

By contrast, court-appointed private attorneys in Harris County are paid based on the number of appearances in court they make and whether the case goes to trial, which assures that their pay is far below what they would make if the clients could afford to pay them directly.  In past years, some attorneys took over 1000 court-appointed cases in a year, far more cases than they could defend properly and ethically.

The Texas Observer reported, “[W]hile the standard for misdemeanors is 400 cases a year, the top 10 percent of assigned attorneys in Harris County took on an average of 632 cases each.”  That is more than three cases per working day.  It is difficult in eight hours for one solo attorney to review the DA’s files and the offense report, have an appropriate interview with the client, do necessary legal research, and conduct an investigation on one case per day – let alone three cases.  This is true even when no cases have a pre-trial hearing concerning constitutional issues (such as an illegal search or probable cause to arrest), or go to trial.  In a recent DWI case I reviewed, there were nearly four hours of video evidence that an attorney would be compelled to look at as part of an investigation.  Such a case can take many hours to evaluate adequately.

In Harris County, the average payment for a misdemeanor case is $84.  That amount is far less than the charge for a half hour of an attorney’s time, paid privately.  The inadequacy of the compensation creates a disincentive to follow professional standards for the representation of indigent defendants and usually results in pressure on the client by the attorney to accept a plea bargain, even if the defendant is not guilty.  Judges and prosecutors often add additional pressures to plead cases out.

While Harris County pays less for indigent criminal defense than other major metropolitan areas in Texas, the amounts paid elsewhere don’t come close to matching the legal fees paid by private clients.  It is rare in my experience for a court-appointed attorney to be paid more than one-fourth what that attorney would receive from a private client.

Under rules of ethics and other professional standards, an attorney should perform for a court-appointed client in the same way he or she does for a private-paying client, but in my more than thirty-five years of practice, I saw that happen in very few cases, whether the case was in Harris County or elsewhere.  But I realize that other observers may have a more positive view of the system.

One example of a problem faced by many court-appointed attorneys comes from my personal experience.  When living in Brazos County, I was appointed to represent a young man charged with capital murder.  I willingly accepted the appointment, though in many jurisdictions, judges don’t give attorneys a choice.  The pretrial phase of the case took nearly a year.  The trial lasted three months.  I was paid about 20% of what I would have been paid if my client had been a private-pay client.

Taking that case meant that for about six months, while preparing for trial and during the trial, I could not take other legal work.  That experience as a solo attorney in a general law practice, sharing a secretary with another attorney, helped me see that taking such low-paid, time-consuming cases would make it impossible to adequately support my family, and we lived very frugally at that time – in a small, double-wide mobile home.

Another factor to consider is that in all the years I was in a private general practice, my law office expenses were between 40% and 50% of my gross income.  If I took in $90,000 in legal fees in a year, my office expenses left me with maybe $50,000 in net income.  Some lawyers with specialized practices make considerably more than that, others less.  Lawyers with big law firms typically make much more and don’t have to pay for their office expenses.

There are wide differences in earnings among attorneys.  Currently, in the San Antonio area, for example, half the attorneys made less than $77,000 a year, and 35% make about $66,000 or less per year.  Fewer than 10% of attorneys in this area of Texas make over $100,000 per year.  I don’t expect the public to be sympathetic about what attorneys earn, given the high cost of legal services today, but I hope that looking at a few facts might inform the discussion.

Even though income for the average lawyer is far less than many non-lawyers assume, attorneys are held to ethical and performance standards in all of their legal work.  Inadequate compensation in court-appointed cases creates pressures to cut corners and ignore some of the standards, often resulting in unjust outcomes for clients and dissatisfaction by conscientious attorneys.  In 2011, the State Bar of Texas adopted “Performance Guidelines for Non-Capital Criminal Defense Representation.”  These Guidelines can be used as a checklist for attorneys, as suggested in its introduction:

“The Guidelines are intended to alert defense counsel to courses of action that may be necessary, advisable, or appropriate, and thereby to assist counsel in deciding upon the particular actions that must be taken in each case to provide the client the best representation possible. The Guidelines also are intended to provide a measure by which the performance of individual attorneys may be evaluated, and to assist in training and supervising attorneys.”

The Guidelines are at posted online here and here.

Judges who appoint attorneys to represent indigent defendants in criminal proceedings could use these Guidelines in several ways:
1. All attorneys who want to receive appointments could be required to understand the Guidelines and agree to follow them, when applicable, in their representation.  (Not all provisions are applicable.  For instance, the section on examining trials applies to very few cases.)

2. Attorney fees in appointed cases could be determined by how well the Guidelines have been followed, using a check-list approved by the judges who make the appointments.

3 . Defendants could be provided a copy of the Guidelines at the inception of representation so that they know what they should expect from their court-appointed attorney.  Judges could approve shortened versions of the Guidelines that will apply to most cases handled by their courts, or for use in special circumstances.

4. Court-appointed attorneys could be required to discuss the Guidelines with each client to explain which items don’t apply to the case and which will be followed, and the reasons for those differences.

Implementing such a program would require that court-appointed attorneys be paid more for their services.  If we can accept as a rough rule of thumb that office and overhead expenses are about half of an attorney’s earnings, then payments for appointed work could take this into account by assuming that those expenses will be there regardless of court-appointed work.  Rates of payment, then, for court-appointed work could be based on rates that are about half of the standard hourly charge for legal services in the court’s jurisdiction, based on independent surveys of hourly attorney fees charged.  In addition, adequate resources must be made available to court-appointed attorneys to secure investigators, experts, and witnesses essential for an adequate defense.

And it is important to understand that judges do not control the amounts budgeted for payment of court-appointed attorney fees.  Those decisions are made by the commissioners courts in each county.  The commissioners courts should accept their obligations to fairly implement the constitutional requirement that all people deserve competent legal representation even when they are unable to afford to hire an attorney because of their limited incomes.  After all, the commissioners take an oath to uphold that Constitution.

Some commissioners courts may prefer to fund a public defender office.  While that will likely cost more than the appointed attorney system, it will assure higher quality representation if the experience in Harris County applies elsewhere.

If the constitutional right to competent legal counsel is to have meaning, the government must do its part by making available the resources needed to breathe life into that Sixth Amendment guarantee.  The commissioners courts in Texas have had 50 years to live up to their responsibilities.  It should not take another 50 years to achieve what the Supreme Court ordered a half-century ago.  It is time to assure that the scales of justice are always tipped toward justice, not toward convenience, parsimony, complacency, and venality.

© Lamar W. Hankins, Freethought San Marcos

LAMAR W. HANKINS is a former San Marcos city attorney.

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