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Ty Meighan
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Saturday, February 24, 2001

Tough questions on appointed counsel

AUSTIN - During recent budget hearings, state lawmakers posed tough questions to Sharon Keller, presiding judge of the Texas Court of Criminal Appeals. The questions focused on the way Texas courts and counties appoint lawyers to represent defendants who can't afford an attorney.
   But some of Keller's answers raise more questions about the indigent system in Texas. For instance, she proposed that lawmakers give the Texas Criminal Defense Lawyers Association a $1.2 million grant for a training program to teach lawyers how to try cases.
   "I don't think the problem is with the appointments by the judges," Keller told the Senate Finance Committee. "I think the problem is that the lawyers aren't being trained sufficiently.''
   But her comments raise questions about why lawyers need training and why the state should use taxpayer money to train them. And why are judges appointing attorneys who aren't qualified to represent poor people accused of crimes?
   Untrained, unknowledgeable or incompetent attorneys shouldn't represent anyone, let alone someone accused of a felony or capital murder.
   Instead of a lawyer-training program, the state should focus on creating a system to ensure that judges don't appoint incompetent attorneys. And the state should make sure court-appointed attorneys aren't encouraging defendants to plea bargain just so the lawyer can move on to more lucrative cases.
   In most Texas counties, trial judges appoint lawyers to represent indigent defendants. Critics say judges can abuse the system and appoint lawyers prone to plea bargain for expediency instead of defending cases.
   But under the current system, court-appointed attorneys also encourage plea bargains for financial reasons.
   A recent report by a State Bar of Texas committee illustrated that point with the comments of a Bexar County defense attorney. "The pay scale is so low compared to the average hourly rate charged for representing a defendant that I believe the majority of court-appointed attorneys look for the best plea bargain, settle it, and move on,'' the attorney said in the report, "The Crisis in Indigent Criminal Defense in Texas.''
   That has immense consequences and points to an unfair and unjust system for poor people accused of crimes in Texas.
   To address this problem, state Sen. Rodney Ellis, D-Houston, has assembled a bipartisan group of lawmakers who believe they have a solution.
   The proposed Texas Fair Defense Act focuses on four issues - timely appointment of counsel, method of appointment by courts, reporting of information about indigent representation services, and minimum standards for attorneys. The legislation also calls for an Appointed Counsel Assistance Program, which would provide research and related assistance to appointed attorneys in serious felony and capital cases.
   Ellis' bill stems from two years of work among legislators, the State Bar of Texas, district judges, prosecutors, defense attorneys and reform groups. This isn't a lawyer-training bill; it's a comprehensive and much-needed overhaul of the state's indigent defense system.
   In previous years, bills to help defendants have not fared well in the Legislature, which many people attribute to the conservative bent of Texas and the tough-on-crime attitude. Last session, the House and Senate passed legislation to reform the indigent criminal defense system, but then-Gov. George W. Bush vetoed it.
   Interestingly, it's Bush's presidential aspirations that may propel the indigent defense bill through this Legislature.
   During Bush's presidential campaign, national attention focused on the state's use of the death penalty - and the various problems with court-appointed lawyers representing capital murder defendants.
   The result of this scrutiny is that more people are realizing that the system needs fixing. It's a matter of fairness - and in some cases, a matter of life and death.
   (Ty Meighan is chief of the Scripps Howard Austin Bureau and can be reached at 512-334-6640 or meighant@scripps.com)
  
  


Ty Meighan is chief of the Scripps Howard Austin Bureau. You can reach him by phone at (512) 334-6640 or by email at meighant@scripps.com.

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