“Free World” vs. Appointed Lawyers
Public opinion of court-appointed lawyers is, to put it gently, not entirely positive. One would be hard-pressed to find nearly as many articles praising superior performances by court-appointed lawyers as to find those chronicling gross deficiencies in their performance.
I’ve heard that we don’t do as good a job because we’re not “free world” lawyers. Many of my appointed clients often offer to pay me for my work at the outset thinking that money will make me work better or harder. Of course, that’s based on what they have heard about court-appointed lawyers and oftentimes their own (bad) past experiences with appointed lawyers. For the clients who request to pay me, they are equally surprised to hear me say that I will not (and cannot) take anything, and that even if I could, it wouldn’t make a difference in the quality of representation they will get from me. I tell them to request a different lawyer from the judge immediately if they ever feel like I’m not performing effectively or providing zealous representation. After all, it’s the defendant’s case, freedom, and life.
So the question for us is this: What might explain the public’s negative opinion of court-appointed lawyers? Are we just performing poorly overall? Is the public being too hard on us? Are those lawyers who appear on the court-appointed list somehow inferior to those whose names do not? And how do we begin to correct the public’s opinion?
Explaining the Deficit . . . or Lack Thereof
I will take up first the notion that court-appointed lawyers are somehow less qualified to represent clients than other lawyers, as this is the easiest argument to dispel. Article 26.04(e) of the Code of Criminal Procedure provides that the judges of both county and district courts are charged with “specifying the objective qualifications necessary for an attorney to be included on the [court-appointed] list.” However, the judges alone are not entirely responsible for determining the qualifications for court-appointed counsel. Article 26.04(d)(3) requires that any lawyer added to the list referenced above must meet both the “objective qualifications specified by the judges under subsection (e) . . . and must meet any applicable qualifications specified by the Texas Indigent Defense Commission (TIDC)” (emphasis added). The qualifications set forth by the TIDC are available online, county-by-county. (See http://tfid.tamu.edu/Public.net/ for the TIDC Defense Plans by county, including qualifications.) Needless to say, the TIDC guidelines are thorough enough to ensure that “unqualified” lawyers do not end up on appointment lists. Thus, clients may rest assured that the State of Texas demands that a court-appointed lawyer be as qualified to do her job as a “free-world lawyer.”
So, the question now becomes if we, as qualified, court-appointed lawyers, are simply performing poorly for indigent clients and providing inferior representation merely because we have been appointed or if there is something else feeding the public’s negative opinion of us. We all know that the right to appointment of counsel includes the right to effective assistance of counsel. Evitts v. Lucy, 469 U.S. 387 (1985). Further, we all know that we as lawyers are afforded the benefit of the doubt as to the determination of whether or not we have been “effective.” As long as our actions are explicable as strategic decisions, and so long as we do not perform so ineffectively as to “undermine the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result,” lawyers are seldom ineffective. See Strickland v. Washington, 466 U.S. 668 (1984).
After all, we are all familiar with the “sleeping lawyer” case that made Texas infamous. Ex parte McFarland, 163 S.W.3d 743 (Tex.Crim.App. 2005). In McFarland, a capital murder case, the defendant was not entitled to a presumption of prejudice with respect to his claim of ineffective assistance of counsel due to the fact that his lead defense counsel had persistently napped during trial, as counsel was not defendant’s sole attorney, and defendant’s other attorney was an awake, active, and zealous advocate in the adversarial testing of the state’s case. However, few of us, including the public at large, know that the “awake, active, and zealous advocate” in McFarland was the defendant’s court-appointed lawyer—Samford Melamed—whereas the “napper” (who shall remain nameless) was his hired counsel. (The case is worth re-reading, as McFarland initially “wanted nothing to do with Mr. Melamed and refused to sign the appointment of counsel form.” Id. at 750.)
The Minimum Requirements for Appointed Counsel
Article 26.04(j) of the Code of Criminal Procedure explicitly establishes further duties in addition to constitutional requirements of appointed counsel so as to ensure counsel’s effectiveness. These duties are mandatory. In full, our explicit statutory duties are as follows:
(1) make every reasonable effort to contact the defendant not later than the end of the first working day after the date on which the attorney is appointed and to interview the defendant as soon as practicable after the attorney is appointed;
(2) represent the defendant until charges are dismissed, the defendant is acquitted, appeals are exhausted, or the attorney is permitted or ordered by the court to withdraw as counsel for the defendant after a finding of good cause is entered on the record; and
(3) with respect to a defendant not represented by other counsel, before withdrawing as counsel for the defendant after a trial or the entry of a plea of guilty:
(A) advise the defendant of the defendant’s right to file a motion for new trial and a notice of appeal;
(B) if the defendant wishes to pursue either or both remedies described by Paragraph (A), assist the defendant in requesting the prompt appointment of replacement counsel; and
(C) if replacement counsel is not appointed promptly and the defendant wishes to pursue an appeal, file a timely notice of appeal.”
Article 26.04(j) (emphasis added).
Perhaps the most crucial requirement under Article 26.04(j) is that a court-appointed lawyer contact the defendant immediately after appointment. In fact, the lawyer should, per 26.04(j)(1), make “every reasonable effort to contact the defendant not later than the end of the first working day after the date at which the attorney is appointed” (emphasis added). The initial client interview should take place “as soon as is practicable after the attorney is appointed.” Id. The Code of Criminal Procedure deems this initial communication so important that Article 26.04(k) provides that any appointed lawyer who violates 26.04(j)(1) may be replaced by new counsel, and intentional or repeated violations of Article 26.04(j)(1) can lead to removal of consideration for appointment.
It is worth noting that this is the only one of the statutory duties listed above that provides a specific remedy for its violation. Communication and contact with our clients is the most important duty we have to them. It is equally important to provide continued communication with our clients throughout the duration of representation. That means return phone calls, return letters, answer questions, and do all of the above promptly just as you would expect and hope from a defense lawyer (should you ever need one). It doesn’t always have to be good news—though that helps—it just has to be some news. It is your author’s opinion that failure to promptly contact an appointed client and answer questions are the very root of the soured reputation court-appointed lawyers suffer.
One important thing to keep in mind about these duties, however: They represent the bare minimum standards for court-appointed counsel in Texas; they are the proverbial “floor” not the “ceiling.” We need to be continually reminding ourselves that this is the least we can do. We can, and always should, do more and strive to be better for ourselves, our clients, and our profession.
Going Beyond the Minimum
In January 2011, the Texas State Bar Board of Directors adopted the “Performance Guidelines for Non-Capital Criminal Defense Representation” (hereinafter “Guidelines”).1 The guidelines were drafted by the State Bar Committee on Legal Service to the Poor in Criminal Matters to encourage defense attorneys to perform to a high standard of representation and to promote professionalism in the representation of citizens accused of crime. Blackburn, J., and Marsh, A., The New Performance Guidelines in Criminal Cases: A Step Forward for Texas Criminal Justice, 74 Texas Bar Journal 7 (July 2011). “They represent an effort to ‘hold the line’ for criminal defense practitioners against a host of financial and political pressures.” Id. While it is true that a disclaimer was placed on the guidelines—that they are not criteria for the judicial evaluation of alleged misconduct—the guidelines were formulated to help provide an indigent client the best representation possible. Therefore, if we want to change the overall public perception of appointed criminal defense lawyers (and defense lawyers in general), we should all print, (re)read, and follow the guidelines.
Enlisting Professional Help
Often it is necessary to employ experts and/or private investigators. Often judges are reluctant to grant funds for experts or investigators. Perhaps this reluctance is based in part on a notion that “effective assistance” does not require expert testimony or private investigators—that a lawyer alone is enough. Judges all too often conveniently forget that lawyers aren’t doctors, psychologists, ballistics experts, or the like, and such forgetfulness is always at the expense of the constitutional rights of defendants. While it is true that “the State need not ‘purchase for an indigent defendant all the assistance that his wealthier counterparts might buy,’ it must provide him the basic tools to present his defense within our adversarial system.” Rey v. State, 897 S.W.2d 333 (Tex.Crim.App. 1995) (citing Ake v. Oklahoma, 470 U.S. 68, 77, 105 S.Ct. 1087, 1093, 84 L.Ed.2d 53 (1985)). Due process demands an equally level playing field at trial, which means more than a “neutral” expert—it means a defense expert to assist the defendant. Rey v. State, 897 S.W.2d 333 (Tex.Crim.App. 1995). For as Justice Black famously wrote, “There can be no equal justice where the kind of trial a man gets depends on the amount of money he has.” Griffin v. Illinois, 351 U.S. 12, 19 S.Ct. 585, 591 (1956).
The Code of Criminal Procedure specifically contemplates experts and private investigators as not only “reasonable and necessary expenses,” but as part of an effective scheme of representation. Were this not the case, it would make little sense to discuss experts and private investigators along with other “reasonable and necessary expenses” in Article 26.05—which is tellingly entitled “Compensation of Counsel Appointed to Defend.” (In full, Article 26.05(d) provides that “[a] counsel in a noncapital case, other than an attorney with a public defender’s office, appointed to represent a defendant under this code, shall be reimbursed for reasonable and necessary expenses, including expenses for investigation and for mental health and other experts”(emphasis added).
Additionally, the Performance Guidelines address expert and investigative assistance. According to Guideline 4.1, B.9:
Counsel should consider whether expert or investigative assistance, including consultation and testimony, is necessary or appropriate. Counsel should utilize ex parte and in camera procedures to secure the assistance of experts when it is necessary or appropriate to:
a. The preparation of the defense;
b. Adequate understanding of the prosecution’s case;
c. Rebut the prosecution’s case or provide evidence to establish an available defense;
d. Investigate the client’s competence to proceed, mental state at the time of the offense, or capacity to make a knowing and intelligent waiver of constitutional rights; and
e. Mitigate any punishment that may be assessed after a verdict or plea of guilty to the alleged offense.
Guideline 7.1, C.3 provides the following:
Counsel should complete investigation, discovery, and research in advance of trial, such that counsel is confident that the most viable defense theory has been fully developed, pursued, and refined. This preparation should include consideration of: Obtaining funds and arranging for defense experts to consult or testify on evidentiary issues that are potentially helpful (e.g., testing of physical evidence, opinion testimony, etc.).
In order to be entitled to expert or investigative assistance, a defendant must show: (1) that there is a private interest that will be affected by the action of the state; (2) the governmental interest that will be affected if the safeguard is provided; and (3) the probable value of the additional safeguards and the risk of an erroneous deprivation of the affected interest if those safeguards are not provided. Under the third and most important consideration, a defendant must show that the expert is necessary to resolve a significant issue at trial. For instance, in Rey v. State, 897 S.W.2d 333 (Tex.Crim.App. 1995), a pathologist was necessary to establish the manner of death which, according to the defendant, would be a contested issue at trial.
So always ask for monies to assist you in your defense. Oftentimes, it’s a hard road ahead if you choose to go it alone. Sometimes, though, it is not by choice that we go it alone; rather, it is because, despite our request for expert or investigative assistance, a judge improperly denies us that to which due process says we are entitled. When that happens it is essential to preserve error for appellate review. In order to properly preserve error: (1) assert your client’s indigence at every step of the way; (2) in a sealed ex parte motion ask the court for funds; (3) have an ex parte hearing on said motion where evidence is presented; (4) take what funds the court does allocate and use them wisely; (5) spend all of the funds the court provides; (6) in a sealed ex parte motion for additional funds for assistance, explain why additional funds are necessary; (7) have an ex parte hearing on said motion where evidence is presented that shows the court why the additional funds are necessary to effective representation; (8) object to the trial court’s denial of your motion; (9) do not announce ready for trial; (10) do not pass witnesses for whom assistance is needed in order to effectively cross-examine said witness without making it subject to the court’s denial of assistance; (11) rest only subject to the court’s denial of assistance; (12) create a bill of exceptions via testimony and/or affidavits detailing for the record what your expert would have done had the assistance been provided; and (13) at every opportunity possible, assert your client’s indigence.
Several relatively recent cases concerning ineffective assistance claims have specifically held that failure to investigate or failure to procure, or to attempt to acquire, expert testimony established ineffective representation. For example, in Ex parte Rogers, the Texas Court of Criminal Appeals held that a defendant who pleaded guilty to aggravated sexual assault with a deadly weapon and aggravated sexual assault and received 75 years’ confinement was prejudiced by counsel’s failure to object to testimony about an extraneous offense that was inflammatory and could have been deflected by adequate investigation. Ex parte Rogers, 369 S.W.3d 858 (Tex.Crim.App. 2012).
In Ex parte Briggs, the Texas Court of Criminal appeals held that counsel had performed deficiently in investigating medical evidence before advising the defendant to plead guilty to felony injury to child, and that counsel’s decision to limit his investigation of medical records to determine cause of death because the defendant could not afford to pay for medical experts was an economic rather than strategic decision. Ex parte Briggs, 187 S.W.3d 458 (Tex.Crim.App. 2005). Further, counsel in Briggs failed to consider other options for obtaining expert testimony, such as subpoenas for treating physicians to elicit their opinions or requesting appointment of counsel and state-funded payment of expert witness fees based on the defendant’s indigency. Id.
In Wright v. State, as in Briggs, counsel lacked a strategic justification for failing to acquire expert testimony. Wright v. State, 223 S.W.3d 36 (Tex.App.—Houston [1st Dist.] 2006). Wright concerned a defendant who had been charged with, and convicted of, aggravated sexual assault of a child. Whereas counsel in Briggs did not obtain an expert due to financial considerations, counsel in Wright failed to acquire expert testimony because “he [counsel] was told that any expert he hired would not be able to interview the [child] complainant, and . . . by the time he had received [therapist expert witness for state’s] notes he did not have time to contact an expert.” Id. at 43. Counsel’s failure to obtain an expert to review the state’s therapist’s notes resulted in undiscovered “exculpatory evidence in [therapist’s] notes, and expert testimony about deviations from the standard protocol [for interviewing child complainant’s about sexual assault] reflected in the notes.” Id. at 44. The Court of Appeals took a very unfavorable view of counsel’s contention that the above reasons were “strategic,” writing that “[n]either of these offered justifications constitutes a legitimate reason for [counsel’s] failure to fully investigate the facts relevant to appellant’s case.” Id. at 43.
Contrary to popular public opinion, court-appointed lawyers do not work for free, although it often feels like that. We all know that court-appointed lawyers are entitled to “reasonable attorney’s fees” for the court-appointed work they perform. Article 26.05(a). And as we all know, what is “reasonable” in the eyes of the court is actually quite unreasonable most of the time. “Reasonable” must have one of those obscure legal meanings that does not, apparently, mean “compensation commensurate with regard to the work performed.”
Jokes aside, compensation is dependent on the schedule of fees that each court (county, statutory county court, and district court) has adopted and is on file with the commissioner of each county court. Article 26.05(b). As mentioned above, this reimbursement contemplates expenses incurred by hiring experts and private investigators. Article 26.05(d). Such expenses may be paid by the county directly to the expert/investigator. Article 26.05(h). And we may be all too familiar with the fact that judges can amend, reduce, or itemize any fees submitted. Article 26.05(c) requires any disapproval of the amount of payment by the judge to be in writing, and for said writing to state the reason for approving an amount different than that requested.
What you might not know, however, is that you have a right to appeal such disapproval. Pursuant to Article 26.05(c), “[a]n attorney whose request for payment is disapproved or is not otherwise acted on by the 60th day after the date the request for payment is submitted may appeal the disapproval or failure to act by filing a motion with the presiding judge of the administrative judicial region.” After filing, the presiding judge of the administrative judicial region will review disapproval/failure to act, and will determine the appropriate amount of payment. Id. The judge is authorized to conduct a hearing on the matter, and the amount determined by the presiding judge of the administrative region will be remitted not later than 45 days after the date of application for payment of the fee is submitted. Id.
Presumption of Indigence
Article 26.05(g) also permits a judge to require a defendant to offset, in whole or in part, the amount requested by lawyer for court-appointed services, including additional costs (re: expert/investigative, etc.), if the court determines that the defendant has sufficient financial resources. A defendant’s financial resources and ability to pay are explicit critical elements in the trial court’s determination of the propriety of ordering reimbursement of costs and fees. Mayer v. State, 274 S.W.3d 898, 901 (Tex.App. —Amarillo 2008), aff’d, 309 S.W.3d 552, 556 (Tex.Crim.App. 2010) (reh’g denied). Accordingly, the record must supply a factual basis supporting a determination the defendant is capable of repaying any appointed attorney’s fees levied. Barrera v. State, 291 S.W.3d 515, 518 (Tex.App.—Amarillo 2009, no pet.) (per curiam); Perez v. State, 280 S.W.3d 886, 887 (Tex.App.—Amarillo 2009, no pet.). Article 26.04(p) does not suggest or otherwise intimate that the court can, sua sponte, determine the presumption of continued indigency has been broken where the State has not tendered evidence showing that a material change in the defendant’s financial circumstances has occurred.
It is well-established that when the State fails to present evidence that the defendant is able to pay all or part of his court-appointed attorney’s fees, the trial court commits error by assessing any part of those fees as costs of court. Mayer v. State, 274 S.W.3d 898, 901 (Tex.App.—Amarillo 2008), aff’d, 309 S.W.3d 552 (Tex.Crim.App. 2010) (reh’g denied); Clements v. State, No. 09-10-00509-CR, 2011 WL 3925691 (Tex.App.—Beaumont 2011, pet. ref’d) (memorandum opinion); Cole v. State, No. 07-10-00126-CR, 2010 WL 3270208 (Tex.App.—Amarillo 2010, no pet.) (memorandum opinion); Barrera v. State, 291 S.W.3d 515 (Tex.App.—Amarillo 2009, no pet.) (per curiam); Roberts v. State, No. 11-10-00183-CR, 2012 WL 2977160 (Tex.App.—Eastland 2012, no pet.) (memorandum opinion); Gaither v. State, No. 10-11-00129-CR, 2012 WL 2511430 (Tex.App.—Waco, no pet.) (memorandum opinion); Perucci v. State, No. 03-10-00765-CR, 2011 WL 3890390 (Tex.App.—Austin 2011, no pet.) (memorandum opinion); Montgomery v. State, No. 05-11-00236-CR, 2012 WL 3024222 (Tex.App.—Dallas 2012, no pet.) (memorandum opinion). A trial objection is not required to preserve an appellate challenge to the insufficiency of the evidence of an appellant’s financial resources and ability to pay court-appointed attorney’s fees. Mayer, 309 S.W.3d at 556. The proper remedy in such a scenario is to modify the judgment to delete that portion requiring an indigent appellant to pay court-appointed attorney’s fees. Id. The most recent cases addressing this very issue wherein the judgments were modified to delete the imposition of court appointed attorney fees are Johnson v. State, 389 S.W.3d 513 (Tex.App.—Houston [14th Dist.] 2012, pet. ref’d), and Taylor v. State, No. 02-12-00106-CR, 2013 WL ___ (Tex.App.—Fort Worth 2013, no pet. h.) (memorandum opinion).
It is also worth briefly mentioning that 26.04(m) lists the extent of factors that the court may consider when determining indigency. “The court . . . may not consider whether the defendant has posted or is capable of posting bail, except to the extent that it reflects the defendant’s financial circumstances as measured by the other considerations listed in 26.04(m).” For ease of reference, the factors listed in 26.04(m) and which should be established at an indigency hearing are as follows:
- Defendant’s income
- Defendant’s source of income
- Property owned
- Outstanding obligations of defendant
- Necessary expenses
- Number and age of dependents of defendant
- Spousal income available to defendant
One other point warrants brief mentioning: filing a “false claim”—submitting for payment or reimbursement for services or fees not actually performed or incurred—may get a lawyer removed from the court-appointed list, according to article 26.05(e). Apart from potentially getting a lawyer removed from the list, and apart from just being plain dishonest (if not criminal), this sort of thing gives court-appointed lawyers a bad name.
Representing court-appointed clients is tricky business, insofar as they might feel “stuck” with us due to poor financial circumstances. And, as mentioned above, a court-appointed client most likely does not have the utmost confidence in her court-appointed counsel based on what she has heard about court-appointed counsel. Much of this mistrust or lack of confidence is based on misperceptions or lack of knowledge about who we are (qualified lawyers), the fact that we do receive compensation for our services from the county, and the duties we have to court-appointed clients. But as I have suggested above, some of our poor reputation, sadly, has been earned. And while no collection of statistics or academic papers or the like can remedy this, the remedy is, in many respects, far simpler: All we need do is perform for our court-appointed clients as we do for those clients who hire us. Make contact with court-appointed clients quickly after appointment, promptly update them on matters related to their cases, hire experts and investigators if needed, etc. In short, show our court-appointed clients that the quality of representation they are receiving is not “justice on a budget.” We owe this much to them, and to our profession.