Is anyone involved in "assisting" the local judges develop the attorney appointment list now required by Art. 26.04, CCP? What will the "objective qualifications" be (besides to be sitting in the jury box when the need arises)? My judges aren't doing anything to prepare for this new procedure, so I think we should. We have an interest in seeing that "qualified" attorneys are appointed, if only to avoid an avalanche of ineffective assistance claims later. I would appreciate any information, proposed procedures, forms, etc. you may provide.

Smith County has a complete plan to deal with procedures for appointment after arrest, attorney qualifications, payment schedules and other details. The plan can be found at www.smithcountybar.org. The District Judge's office has an application for inclusion on the appointment list and a set of standards for attorneys based on the degree of offense. This is all in draft form and subject to revision, but it's a great start.

Judge DeVasto and the other judges have put a substantial effort into their joint order. However, it is not without criticism. Some examples: Local attorneys are critical of the CLE requirements (8 of 15 in criminal law). They believe that this requirement would prevent many competent civil attorneys from representing the occasional criminal case.

Law enforcement does not like the requirement of a complete offense report being provided prior to book-in at the jail. What is an offense report for an arrest based on a warrant confirmation from another jurisdiction? What type of reports will be considered? On many major cases, the detectives will not have their reports completed for some time, even after PC exists for the arrest either on-sight or pursuant to a warrant. DPS is concerned because their policy requires the Trooper to completely review the videotape prior to preparing the report. Many of our departments require a supervisor to review and approve the report prior to submission to our office for prosecution.

The last draft included a certification by the State of compliance with victim notification in each case. However, the definition of "victim" in Article 56.01(3) is dramatically different from most people's understanding of who may be a victim.

However, our judges have been willing to meet with various groups including law enforcement, and attorneys and incorporate some changes. The first draft had an Assistant on duty at the jail 24/7. In an office with 20 proscutors, this just was not feasible. Unfortunately, the last meeting occurred while many of us are were in Galveston. We are still waiting to see the final results.

No doubt many defense attorneys will question whether the Smith County Plan makes them involuntary participants (cf. art. 26.05(c), C.C.P. which refers to "attorneys willing to accept the stated rates" of compensation and art. 26.04 (d)(1) which implies that an attorney need not apply to be included on the list). Most will probably also question whether a cap on their fee at $750 or less (15 hours or less for a jury trial) represents a reasonable fixed fee or allows them to treat their indigent client the same as any other-the intent behind the amendment. The provisions for complete waiver of any fee if no billing is timely submitted will likely also be controversial.

If the Smith County Plan is upheld in the courts, then it will likely serve as a blueprint for appointments and compensation across the State. Otherwise, it appears to merely be an attempt to insure continuation of the current disincentives to prolonging disposition of a case and will include even more attorneys in the system who may not be qualified or at least who wish they weren't.

[This message was edited by Martin Peterson on 11-03-01 at .]

Frank:

You might be interested in how Harris County is going to go about the new law.

It is my understanding that they will be using a something like a jury wheel. A judge will call for 5 attorney's and presto change"o" five criminal defense attorney's.

Would like to visit with you contact me at Waller County D.A. Office 979-826-7718

I'm writing this at home, and don't have the Smith County plan or the statute in front of me, so I may be a little inaccurate in my details, but: One of the problems I have with the plan is the rather autocratic way the judges who drafted the plan tell the police to bring their police reports and victim's information to what I see as a probable cause hearing, or "the defendant's first appearance before a magistrate." They also tell the DA to be present, and tell him what to bring with him.

In my opinion, all that is needed is an affidavit sworn to by a peace officer (which may present problems in smaller counties; we don't all have notaries or assistant DA's available 24-7), which contains probable cause facts.

Isn't there some kind of separation of powers problem here? We have judges writing plans (legislating) that affect the entire criminal justice system in the county. Even if approved by the commissioners, it's still promulgated by the judiciary. I realize the courts have the right to set their own rules for their own courts (which may and do affect prosecutors, police, defense bar, etc.) but do they have the power to directly tell the police, in advance of the case appearing before them, what to do and not do? Aren't they getting involved in "prosecuting" the cases?

Another question: what will be the consequences of failure to follow the plan? What will happen if the person is held more than 24 or 48 hours without a probable cause determination? Will this be one of those situations where it becomes an illegal arrest and any confession (for example) that flows out of the arrest is to be suppressed? But the conviction will otherwise stand if there is sufficient evidence?

Another question: Does the attorney appointment list a public document? Does it become, or can it be made, a part of the record in a particular case? What if it is shown that the judge deviated from the plan/list? Will the appellate court reverse any conviction, or will they instead simply look to see if the attorney, even though appointed in violation of the list, effectively represented his client?

This has gone on longer than I intended, and I have a lot more questions about this whole statutory scheme, especially regarding smaller counties.

Re harm from "improper" appointment: several recent Dallas Co. death penalty cases have addressed "unauthorized" appointment of death penalty trial counsel -- they generally favor a harm analysis rather than requiring strict compliance. Qualifications and time limits contained in new article 26.04 establish a statutory right rather than a constitutional right, so defendant would have to point out some "substantial right" that's been violated to get a reversal under Tex. R App. P. 44.2(b).

The clearinghouse for information concerning Senate Bill 7 may be found at Texas Fair Defense Information. Presumably they will be posting the various county plans as they are received in Austin.

Last Thursday, a majority of the Smith County judges adopted an "Interim Smith County Plan and Standing Orders for Procedures for Timely and Fair Appointment of Counsel for Indigent Accused Persons in Smith County, Txeas." However, one judge has refused to sign and two judges went to Commissioners Court this week and asked for a Public Defender Office. The order signed is not the same one on the Smith COunty Bar Association website, and most importantly DOES NOT have any material regarding the probable cause hearings. It does establish a "Criminal Courts Board" composed of all the judges, and allows the "Board" to set policies, procedures and guidleines to implement the plan. The "Board" will also have a Counsel Coordinator who will answer all questions regarding the plan. Presumably, the "Board" will adopt the policies in the "Smith County Plan" posted on the website, but that is not clear, and leave almost the whole process up in the air. If anyone would like a copy of this order, please e-mail me and I'll fax it to you.

The statute certainly implies that continued restraint beyond the allotted time period will be illegal (isn't that what "must be released" means). I recently advised my sheriffs that it might not be a good idea under 42 U.S.C. 1983 to have a policy of retaining custody of persons beyond the deadlines without proof of a probable cause finding, but is the sheriff responsible to advise the inmate of his rights and determine whether he qualifies for a PR bond? If the inmate does not request release, is he staying voluntarily?

It seems to me if 17.033 is violated, then the custody becomes a poisonous tree or at least an illegality under 38.23 that taints any subsequent confessions without regard to the initial legality of the arrest.
I guess the act mandates both speedy magistration and appointment of counsel and speedy interrogation.

[This message was edited by Martin Peterson on 11-21-01 at .]

How everyone responds to the Texas Fair Defense Act will likely affect prosecution for years to come. I have have had some interesting discussions with folks in smaller counties about how they are dealing with this issue. I think this is a discussion that would be worthwhile to keep going

Last Thursday, the judges met and decided that 14 attorneys out of approximately 500 was not enough for the Smith County Plan for felony cases. So the felony courts are going to Alternate Emergency Plan B which is a contract system with three attorneys per district court. The contract plan must be approved by both the county commissioners and the administrative judge for the region. Each defense attorney will be paid $5,000 per month and they will rotate the probable cause hearings among the 9 attorneys. This effectively scraps the fee schedule and major portions of the plan on the Smith COunty Bar Association website.

However, the misdemeanor courts (three) are happy with 10 attorneys.

The lead story in the issue of the "Prosecutor" that you should receive next week includes a discussion of the indigent defense issue. Also, an interesting story in Wichita Falls paper spotlighted in "Issues in Prosecution" covers what some smaller North Texas counties are doing. See http://www.trnonline.com/stories/12172001/regional_news/28638.shtml

Joni you asked for this to happen. I imagine the counties applying for grants out of the $20 million will be quite surprised to learn that the funds cannot be used to pay the court-appointed attorneys.

I understand several counties determined to continue with a "contract system" even after January 1, where they award appointments on the basis of bidding by certain attorneys. For some thoughts on that means of coping with the problem see Appointment Systems.
In at least one county (district) as a variation of the original Smith County proposal the judge did indeed select who was on the appointments list without regard to whether they applied to be listed. Cf. art. 26.04(d)(1) C.C.P.

In one of my counties a single attorney applied, so he is now our de facto PD; in another of my counties that same attorney and one other applied, so they share the appointments.