Here's a scenario that long-time professional prosecutors might have trouble imagining:

Young lawyer gets out of law school.

In order to build up private practice, young lawyer takes criminal appointments, gets name out in community and gets experience.

Much later, private attorney making big bucks decides to forego appointments in favor of money-paying clients.

Another fresh faced lawyer arrives in town and starts taking appointments.

John Bradley complains that experienced older attorney should be taking appointments.

Cycle repeats itself.

-- Sorry, gotta go with the free enterprise folks on this one.

Excellent questions, Shane. If you read the constant stream of reports being issued by death penalty abolitionists, then you would conclude there is a huge problem. If you believe that isolated examples of a poorly performing lawyer is sufficient to draw a broader conclusion, then yes there is a problem.

The reality is that there is no real, objective way to measure the problem or a solution. Which means that people resort to anecdote and personal feelings to form conclusions.

My personal observations from Houston and Williamson Counties is that the vast majority of court-appointed lawyers do a very good job. The problem that I do observe is the presence of some very bad lawyers who should be shot on sight.

Unfortunately, no one particular entity in the system seems to be able to weed them out. Judges can keep them off an appointment list, but they still get paying clients. Appellate judges can reverse cases on appeal, but nothing happens to the lawyer, who can try another case the next week. The State Bar's grievance procedure is a very awkward way to deal with incompetence rather than misconduct.

How do you suggest the system keep an incompetent lawyer from handling a criminal case?

Here in Tarrant County, many very experienced criminal practitioners who were formerly on the Judge appointment list in a court-by-court system have opted out of the Senate Bill 7 appointmnet scheme or have limited themselves to second-degree felonies and below. These lawyers tell me that they don't want a steady diet of child sex cases. I see defendants getting less competent representation here than under the old system.

John, I don't know that we can prevent an incompetent attorney from handling a criminal case. All lawyers (or most) go through law school, take the bar and pass, take regular CLE, and are subject to the disciplinary rules that tell us that we should not undertake a case that is beyond our abilities. Beyond that, what can we do? I think the State Bar has certainly done everything it can to educate the public about how to pick a competent attorney. And we have addressed the efforts to insure that competent attorneys are appointed. It may well be that, because we are dealing with human beings with varying degrees of competence and ambition, that there is only so much we can do on the front end and we can hope we catch all of the problems on the back end. Sadly, there is no way to eliminate imcompetence, negligence, and other such malfeasance in any human endeavor. We can only do what we can to minimize the occurrence of such behavior and rectify it the best way we can when it does happen.

Nothing like talking about the opposition to get our attention. The one thing I know for sure is increasing the compensation rate has not served to attract the better attorneys into the system. There are fewer of them present now than before. I am curious, however, how many have been attracted to Collin County, where the fee schedule allows up to $175 per hour to be paid. If I were a Collin County taxpayer I think I would be quite vocal about the issue.

Other than emergency medical care (the cost of which is also shifted to others), we are dealing with the one area of our society where you can get what you don't pay for-- sort of. Why? Because we cling to the idea that the adversary system is the best means of being "fair" and arriving at the truth. The fact of the matter is, though, that a huge part of the pie is doled out for the time spent on representing the clearly guilty, not those who require a complex defense. The very reason for this is to encourage the movement of the docket. Reallocation of the available resources is part of what will be required to improve competence where needed. Requiring (only) the best attorneys to either share or completely shoulder the burden would likely improve the results, but the whole thesis behind treating attorneys differently from plumbers or dentists is that they (all of them, civil or criminal, wealthy or poverty-stricken) have a special obligation to share their knowledge and skills because the state gives them the ability to utilize its courts. The new statute essentially eliminates this obligation for a group of attorneys because it focuses on the rights and needs of the defendants, not the obligation of the providers. Arguably, all attorneys have an obligation to be competent to share in indigent criminal defense. They, of course, choose not to be, and there in lies the rub. Now we have singled out an even more select group for this court-imposed servitude. How fair is that?

Those of us who have had the unwanted cases foisted upon us and have had to deal with the jail calls and visits can cry out that the burden is not affecting all lawyers as it should and that we (as a profession) are still being taxed unequally for no valid reason, but so long as the burden is not actually placed on those who could best meet the need, and only those who can best meet the need, the problem of poor representation will persist. The most despicable and obnoxious client still deserves the service (according to our system), and if only the inexperienced, lesser-quality lawyer is required to take the case we should treat the problem at the tail end, as Shane suggests.

The reason the system is in a defensive posture about the quality of appointed defense counsel is because of the failure of trial judges to appoint competent attorneys. Friends, campaign contributors, etc. get appointed; attorneys who "move" the cases are favored over those who request trials. If our judges had done a better job, we would not have the problems we have now. A competent trial judge would have declared a mistrial in a a "sleeping lawyer case" or never appointed him in the first place.

Now, to chime in on the defense side. The courts should not, and in most cases rightfully do not, appoint every lawyer in the book.

It is easy to pontificate about how every lawyer has a duty to be a good lawyer, and take an appointment every now and then. However, I am unsure what shocks me more - that a good criminal trial attorney would suggest such nonsense, or that a court would actually do it.

When we discuss court appointments, we are discussing the representation of people in situations where their liberty, their very freedom, is at stake. Here we sit and discuss appointing people who do not want to represent that person, probably do not practice criminal law, and probably do not: know the prosecutors personally; have a good relationship with the prosecutors developed through years spent negotiating; have criminal trial experience; have a record of putting prosecutors through their paces at hearings or trials; have the prosecutors respect; etc.... Truth is, prosecutors make recommendations in cases based on the case, and sometimes the attorney's record. The defendant who gets a never-practiced-criminal-law, tax law specialist to negotiate or try his felony possession charge or aggravated sexual assault is at a huge disadvantage. Haven't we all seen how well it works out for the defendant when the "family friend" who does transactional work steps into the District Courtroom?

Lets just end this with a vote, and everyone chime in. Would you allow your (or your wife's, mother's, sister's) OBGYN to perform a complex brain tumor removal? After all, all doctors go to medical school, right! They obviously know the basics. They have to pass an exam to get their license.

Yes?

I think the "make *all* lawyers take criminal cases" position is a straw man. It doesn't sound like anyone is really advocting that (or at least we all seem to thoroughly recognize the painful consequences of such a policy.)

Personally, I think even in a 'free' society we have to balance rights with duties, and by virtue of our position and education, we assume an additional duty to perform some representation of the indigent. (I say 'we' but mean 'they/the defense bar' of course.) And I don't give much credit to the concept of not wanting to defend certain kinds of cases. I mean, don't defense attorneys always say they do it to protect the system? to make sure that the State can't run roughshod over the little guy? What difference does it make, what they're accused of doing, if you *genuinely* believe that rationale? Shouldn't it be even MORE true in a sex offense type of case since arguably the State is more motivated to railroad people, for political and other reasons? (At least that's what I hear from defense lawyers!)

I think the suggestion initially expressed by Mr. Lacy sounds the best so far. And I don't think the aim is to enforce some communal morality upon the conscience of individual lawyers... I think it's a pragmatically-motivated idea, designed to lessen appeals, improve the public perception of "justice" in the court system, enhance the credibility of law enforcement, and improve the chances that the truly innocent will slip the net. Even if it's not real-world to hope that all indigent will get as good a defense as the richest fat cat, I can dream... prosecuting would be much easier if all the defenders were skilled professionals at the top of their game. (I'd rather get my butt kicked once from someone great, and learn a ton, than kick a mediocre lawyer around the courtroom day after day and get nowhere in my own development.)

In Travis County we have appointment lists, and you have to have a certain amount of experience on one list before you can move up to the next list. Perhaps we could do the same-- in terms of only "forcing" appointments in A misdemeanors on good attorneys who get retained on As... forcing 1st degree felony appointments on retained 1st degree lawyers, etc. And of course we ought try to prevent anyone from being overburdened, financially, emotionally or otherwise.

What do ya'll think?

Maybe we can start a thread on how to get rid of lawyers who don't measure up? What about judges?

(oops I didn't say that, did I?)

My first job out of law school 16 years ago was in Victoria with a small insurance defense firm. The job was boring but thank goodness all attorneys in town got criminal appointments. Of course, at my firm, everybody else's appointments landed on my desk. I got kicked around by the ADAs for a while but I was in the courtroom and I soon learned how to try cases. I made friends with the ADAs and when I realized that civil law was not for me, one of those ADAs helped me land a job--my first real job--with his new employer at the DA's Office in Smith County. 15 years later, I'm still a prosecutor. Were it not for those criminal appointments, I'd probably be out of law altogether by now.

I have heard the same arguments from prosecutors who refuse to take a pro bono divorce, will, or various other civil matters. "I am not competent to do this stuff so I can look the other way." I am curious if the same prosecutors who are advocating forced criminal representation on civil lawyers would be willing to advocate for forced civil pro bono work on criminal attorneys, yes even prosecutors?

It seems to contradict the nature of our republic to force people to take cases they do not want. It isn't right. Doesn't involuntary servitude come in to play? I have been on the "other side" and would cringe when I saw a civil lawyer try to struggle through a criminal appointment. On this side, it doesn't bother me that a civil lawyer sends me his witness list in advance of trial, but then I wonder if the case will end up being tried twice. How many times have we all had to ensure the defense lawyer properly did his or her job while ensuring our own part of the case is properly prepared? It is worse when the lawyer is unfamiliar with the body of law. How about forced appointments on patent law for poor inventors? It makes no more sense than forced appointments in criminal cases when life and liberty are at stake.

Again, is anyone really truly advocating "forcing" criminal cases on non-criminal lawyers? I thought we had all pretty much agreed that's a no-go. A more fruitful discussion might be of Mr. Lacy's suggestion-- anyone who already is being retained on criminal cases might have a duty to take some appointments.

I'm not very convinced by the forced labor objection when it comes to indigent representation. If you start with the premise that the Supreme Court has interepreted the US Constitution to require the appointment of lawyers to represent criminals who can't afford to hire them, how else can the problem be perceived except as a duty by lawyers to provide that representation?

Now, we can make judgment calls on who is the best lawyer to be carrying out that duty, but I don't think that any lawyer should be excluded in the name of "forced labor." The Supreme Court did not read the Constitution to provide free representation "if enough lawyers want to volunteer to do it."

As for the argument that lawyers can pick the cases they want to hear, how noble is that? As prosecutors, we are sworn to do justice, which means that we evaluate every case. We can't say, "I don't want to prosecute kiddie cases. That stuff is disgusting!" Why, then, should a criminal defense lawyer have a veto power? Are his legal principles so weak that they go limp in the face of a bad case?

Shane, I understand your argument about the free enterprise rights of a lawyer. Frankly, I'm not sure I think that is a very good model for seeking criminal justice. That model indeed keeps the best representation going to those who can pay the most. Did you go into public service because of the outstanding compensation? Well, I believe that lawyers who are called upon to represent an indigent defendant also carry out a public service, just like a jury (ain't that forced labor?).

The U.S. Supreme Court has stated that judges should "strive" to maintain proper standards of performance by defense attorneys in criminal cases in their courts. McMann, 397 US 759, 90 S.Ct. 1441. The Fifth Circuit has added that the court is responsible to "see to it" that counsel actually renders effective assistance. Daniels, 669 F.2d 1075. See also art. 26.04(b)(5). At the same time, the courts generally recognize that the amount of money available does not really enable them to assure that indigents truly receive "substantially the same assistance as one who can afford to retain [better] counsel". Cf. Lamison, 462 NYS2d 109. Nor is the court necessarily in the best position to contemporaneously evaluate the performance of counsel. Despite the argument based on art. 26.04(d)(1) that the court should not appoint an attorney who has not applied to be on the list, many courts have continued to demand this service from those on the the larger list (of the more qualified attorneys who appear before their court) and so far I have seen no case interpreting this statute to the contrary. We also know that a mere claim of incompetence will not constitute an automatic excuse to service. E.g., Wood, 690 P.2d 1225, and that criminal trial experience is not the sole determining factor of competence. E.g., Isom, 585 NE2d 1347. I am still of the opinion that the compensation provided in many counties requires appointed counsel to donate a substantial part of their services in some, usually the more complex, cases. This is unfair to those attorneys and their clients. This unfairness is not properly solved by requiring any larger pool of attorneys to share in the burden, though it would be partially ameliorated in that fashion, both to the benefit of the attorneys already participating and the pool of criminal defendants. If we observe a court failing to assure reasonably competent assistance, then perhaps we have a greater role in suggesting such attorneys be replaced, either in the individual case or by removal from the list. But that is about all we can do, until the available funds are properly allocated by those doing the allocation. I have never bought the idea that my law license imposed an obligation of involuntary servitude (which equates to uncompensated labor), but the courts feel differently. Obviously, since I am now prosecuting, that part of the problem is no longer of as great of interest to me as it once was. In truth, though, all we want is defense counsel that will pass muster under Strickland, not the most worthy opponents, since we assume we are capable of determining when our prosecution is righteous.

By the way, how much would you have to offer jurors to get them to want to "serve"?

I must add that there is no question the appointed counsel system is one method of providing young lawyers with valuable experience, and probably an essential means of accomplishing this purpose. Does that mean it is also an acceptable means of providing truly effective assistance? I am not sure that is always true. But the tail can wag the dog.

[This message was edited by Martin Peterson on 11-02-03 at .]

Martin, I hope you don't mind, but I'm copying your post for my next reply brief on ineffective assistance. Does anyone know the blue book form for web page discussion groups?

Best I can figure from the bluebook is NAME, Title of topic discussion, available at http://www.tdcaa.infopop.net/2/2OpenTopic?q=y&a=tpc&s=347098965&f=157098965&m=3953015357&p=2(last modified [date of MP's post])

However, double check everything that comes after OpenTopic? to make sure I typed it correctly.

I will not add to very passionate and expert opinions herein execept to repeat an early John Bradley gripe. Why is it that all the grand and great defense experts that decry and assault the appointed counsel scheme in capital cases would never sully themselves in a courtroom as a valid public servant. Easier to whine and moan than to roll up your sleeves and work.

My frustration is not with hard working criminal defense trial lawyers, but the media hounds who look down their powdered noses at publicially minded prosecutors, real champions of the 6th amendment, and our excellent criminal justice system.

From about 1983 to 1989 I was in private practice in rural northeast Texas after I left the District Attorney's Office.

I took some court appointed cases and decided I could not operate in a system that paid $100 for 1/2 hour work to plead someone guilty and $800 for a 3 day jury trial. I quit.

The judge asked me to return and I did. Same story. I quit.

He discovered the system didn't work well without at least one quality trial lawyer doing court appointed work. He asked me to return. I declined.

Vince Perini (Dallas lawyer) wrote a brilliant article for the State Bar Journal on the economics of court appointments in the early 1980's. The economics and the ethics of being put into indutured servitude forced me into a decision. I didn't want to choose between doing right by my client and doing right by my family.

He did research and I did research. The law at the time (probably the same now) - if all the lawyers in the district are forced to take appointments, I could be forced to take appointments. He put them all on the list.

It was no relief for me. I got all the hairy cases. He left the 18 year olds who confessed to the tax lawyers and gave me all the baby abusing ex-cons and paid whatever he wanted.

I complained, but was trapped. In 1988 an ex-con blew away a man in his own home with a shotgun while my client's cousin looked on. They stole the dead man's stuff and sold it to go on a drinking binge. Took the police about 5 minutes to solve the case after the body was discovered.

I got appointed to represent the trigger man. There was an 8 day long murder trial. My client testified that he had to shoot the guy, he gave him the look like he was going to hit him - blew him away in his own living room. All my client had was a 2 on 1 advantage and a shotgun ... Through my magic, the jury acquitted of murder and convicted of manslaughter ... gave him 20 years ... without a deadly weapon finding ... in less than 2 years then, he could be free.

8 day trial and I billed for 80 hours. 8 hours a day in court and 2 hours a day prep time. If that was all I'd done it'd be malpractice, but I didn't want to get into a "padded bill" dispute with the judge again. He paid me about $17 an hour. Less than my overhead based on a 50 week/40 hours a week year. A lot less than my overhead! I was taking from my family to do a good job for my clients.

I couldn't tolerate a system than punished me for fighting for my clients. I quit. The judge told me I could not quit and that we'd had that discussion before. I told him I could get a job as a prosecutor and then he could not appoint me and I would have to be relieved of any appointments I had. He said you don't mean that. I said watch me. I've never looked back.

He did it to me anothe time before I could shut down my practice - 5 pounds of a penalty group 1 controlled substance - reversed and render acquittal on appeal - $18 an hour.

I don't believe he ever realized the amount of advice I gave to the real estate and family law lawyers he appointed. After I left he suffered through two cases of wrongful convictions that got national publicity.

Oh, by the way, remember the cousin just standing there when my client pulled the trigger - the cousin was convicted of murder and sentenced to 40 years - he had a good civil lawyer.

This system has got to change.

quote:

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Originally posted by sara:
I have heard the same arguments from prosecutors who refuse to take a pro bono divorce, will, or various other civil matters. "I am not competent to do this stuff so I can look the other way." I am curious if the same prosecutors who are advocating forced criminal representation on civil lawyers would be willing to advocate for forced civil pro bono work on criminal attorneys, yes even prosecutors?

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Surely you're not suggesting that a divorce client has the same need for an attorney as a criminal defendant?

There are Divorce for Dummies books at Barnes and Noble for that.