Say It Loud: “I am a Criminal Defense Lawyer and I am proud.” This month we celebrate the 50th anniversary of the United States Supreme Court decision in Gideon v. Wainwright, 372 U.S. 335 (1963). The Court found that what we do is a fundamental right of the Accused, a right that is essential to a fair trial. The Justices found, “Lawyers in criminal courts are necessities, not luxuries” (id. at 344).
In the years since Gideon was decided, states have developed ingenious ways of carrying out the law. Texas has statewide public defender systems, court-appointed counsels, and hybrids of the two. Regardless of the state’s system of administration of indigent defense, money—not the representation of the Accused—is always the foremost stated concern.
About fifteen years back, the SBOT committee for Services to the Poor in Criminal Matters, under the leadership of Allen Butcher, commissioned a study through the University of Texas at Arlington to collect empirical data regarding legal services to the poor. Michael Moore, PhD, supervised the study and data collection. Dr. Moore’s report back to the committee recognized that fees paid to court-appointed counsel should take into account the lawyer’s overhead. Further, that fees should take into account the duty and time of lawyers to investigate the case before advising their clients, so as to provide effective assistance of counsel.
State Senator Ellis acknowledged the importance of Dr. Moore’s study, and courageously recognized some years back that Texas should honestly give more than just lip service to the principals enumerated in Gideon. Through the senator’s tireless efforts, we have the Indigent Defense Act. James Bethke and his staff of the Task Force on Indigent Defense more than ably administer this Act. The focus of the Act and the Task Force is effective and due process–oriented legal service to the indigent Accused. This focus is not only morally correct but also mandated by our Texas and United States Constitutions.
All Texas counties, through their county commissioners and judges, hold the responsibility of implementing the Indigent Defense Act for legal services. These “public servants” elected to serve the residents of their respective counties must realistically balance the needs, of the residents, with the finances available. We as Criminal Defense lawyers know and appreciate this balancing act. Nonetheless, the practice of having criminal defense lawyers financially subsidize the counties is just wrong.
Justice Hugo Black, at the conclusion of the argument on Gideon, publically acknowledged the country’s indebtedness to those lawyers who represent the indigent Accused. The Justice reflected on his experience as a county prosecutor, revealing that states spend vast amounts of money on hiring prosecutors and police. “Black wanted to make the courtroom battle a fair fight” (May It Please the Court, Irons and Guitton, The New Press 1993).
Counties who have “flat fees,” “$150 pleas,” “$30 per hour fee for experts” (who, by the way, generally have lowered their usual fee), and the like are thumbing their nose at Gideon and the efforts of the United States Supreme Court to ensure a fair fight. When sued in their official capacities, county commissioners and judges, I am more than positive, retain their lawyers, at county expense, and those lawyers are not subsidizing the counties. Equal Protection under the law, guaranteeing that all men are created equal, is not just a phrase; it is a cornerstone of our legal system. Flat fees and the other like perversions in no way guarantee a fair courtroom battle; instead, they give the accused a paper shield to ward away the State’s AK-47 ammunition.
What flat fees and the other like perversions do not take into account is that Criminal Defense lawyers represent human beings. These clients are as different from one another as those people who have not been accused of a crime. Take for example a young man who at 17 acts as flag man for a drag race (in two different counties), and he is arrested both times. He goes to “jail docket,” both times, where the judge, in both cases, gives him his three options: 1) retain your own lawyer; 2) represent yourself, but understand the DA is not your lawyer; or 3) ask for a court-appointed lawyer. He is 17, he does not want his grandmother to know he spent a night in jail, and he just wants and needs to get out. His grandmother brought him up to tell the truth, so he pleads guilty, both times, for time served.
When he turns 19, he moves to a different county, where he becomes the sole, stable bread earner for his family of two younger siblings and their elderly grandmother. His drag-racing buddies feel sorry for him and agree to pay him to act as flag man again. He does, he gets busted, and imagine his dismay when he finds out he is being charged with a state jail felony! Thanks to Gideon he gets a court-appointed lawyer who takes his TIME and diligently performs his duty. The Criminal Defense lawyer takes the time to get the records from the other two counties and negotiates with the prosecutor for a most favorable disposition that did not result in probation fees or a conviction. The Criminal Defense lawyer also took the time to help his client get his license reinstated from the prior misdemeanor convictions. The client was not even aware of his license suspension, as DPS does not use certified mail. The resolution of this case took more than 26 hours, and the lawyer would only receive a flat fee of $400 or even $150! You do the math. It just is not right. Nevertheless, who cares—the lawyer is court-appointed and the client is poor. WE CARE, the client’s grandmother cares, and, most assuredly, TCDLA cares.
In representing the poor, Criminal Defense lawyers, both private and public defenders, attend CLE at their own expense and without per diem. They frequently make a conscious decision to guarantee resources needed to defend their client, using their own money. Counties seemingly have adopted this practice as a matter of course and fact. My goodness, organizations who adopt a “mile” of Texas highway receive acknowledgment by signage on the highway! Not seeing beer cans on the shoulders of Texas highways seemingly is more important that what happens in the courtrooms of Texas.
Most county commissioners are not lawyers, but the judges who make the decisions regarding payment for court-appointed fees are. The foundation under those black robes is a license to practice law, just like the license held by the lawyers doing court-appointed work. Every one who holds a law license is a full brother or sister to all those who hold a law license. We are all equal siblings to the practice of law. None of us should use the power given us to demean members of our family, just because we can. (It makes us dysfunctional.) If we truly desire to have the public respect our judicial system, we must show respect to all those who work within the system. It bears repeating: “Lawyers in criminal courts are necessities, not luxuries.”
Criminal Defense lawyers, whether we accept court appointments, work for public defender organizations, or take only retain cases, deserve support and gratitude in the same regard as those men and women who serve in the Armed Forces. We all make knowing sacrifices to defend what is right and true about our American sense of justice. Some fight with bullets, others with words, but all fight valiantly for all residents of this country. Criminal Defense lawyers fight for the protection of all residents of this country, not only by the words of the law, but by its spirit as well. Criminal Defense Lawyers who accept court appointments and those who choose to work with public defender offices do so knowing the fee and salary they are making in no way compare to a retain fee. And they should not, as the clients represented are indigent—POOR. The representation of the poor is very important if we are to fulfill our “oath” as lawyers. Having Criminal Defense lawyers subsidize the system in which they work is just as wrong has having our fellow Americans in uniform purchase the equipment they need.
“A lawyer’s time and advice, are his stock and trade.”
—President Abraham Lincoln
Good Verdicts to you all,
The Hat Lady