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Editor’s note: One year ago, Texas counties changed the way they appoint lawyers to indigent criminal defendants. As part of the Fair Defense Act, also known as Senate Bill 7, all counties had to come up with systems that ensure poor defendants receive quality representation – quickly. For some counties, the act – which went into effect on Jan. 1, 2002 – required major changes in the way criminal courts assigned lawyers. Other counties had few, if any, changes to make. Some counties have progressive appointment systems that appear to work pretty well; others have resisted the changes. In the 2003 session, various interest groups are vying to get the Texas Legislature to make adjustments to S.B. 7. Over the course of the next month, Texas Lawyer will examine how several counties have applied the act over the last year, and what lawyers and judges think about it. This article is the third in the series. Kirk Oncken recently spent the better part of a morning shuttling across Harris County Judge William “Bill” Harmon’s relaxed and boisterous courtroom. Oncken, a Houston criminal-defense lawyer, is a so-called “term” lawyer in judge Harmon’s court. As such, Oncken has a one-year verbal agreement with the judge to represent indigent criminal defendants accused of felonies and misdemeanors in Harmon’s 178th District Court. With a jolt of jet-black hair and a chiseled profile, Oncken looked purposeful one day last December as he moved from his client to the prosecutor to the bench and then on to the next client. During the 90-minute court session, Oncken, a solo practitioner, handled the following: submission of a guilty plea for a 40-year-old man charged with unauthorized use of a vehicle; an agreement for deferred adjudication in exchange for participation in a chemical-dependence counseling program for a 34-year-old man accused of drug possession; and the resetting of a court appearance for a 25-year-old man accused of evading arrest. In the Harris County district criminal courts, seven judges, including Harmon, appoint so-called “term” lawyers on a six-month to yearly basis to handle indigent cases, says Harris County District Judge Debbie Mantooth Stricklin, administrative judge for the criminal courts. Another 13 of the Harris County district court criminal judges appoint the term lawyers for shorter time periods. Two of the judges have opted not to use term lawyers and instead rely on a computer-generated list to assign cases. Judges select the term lawyers from a roster of attorneys pre-approved by fellow judges and then arrange with them to take up to five criminal cases per day for an agreed-upon time period. Harris County judges who use term lawyers believe their approach fully complies with the spirit of the Fair Defense Act reforms that went effect in January 2002. “There is a bigger spread of the work to a wider group of lawyers since [the act] was passed. We have a lot of lawyers down here that we didn’t have before,” Stricklin says. “I think if you talk with the lawyers who serve as term lawyers and just watch them, you won’t think they are not doing whatever they can for their client.” But three Houston criminal-defense lawyers and two lawyers who have pushed for improved indigent representation in Texas believe that the use of term lawyers to represent indigents doesn’t comply with the spirit of the Fair Defense Act reforms. The act was intended to raise the standards of representation of the state’s poorest criminal defendants and to provide indigents with qualified, independent counsel. Under the reforms, the judges of each Texas county are required to adopt and publish consistent countywide indigent defense systems that meet the standards of the statute. According to the act, the judges must create procedures in a “fair, neutral, and nondiscriminatory manner.” In the act, lawmakers suggested that each county use a “rotation system” for appointing indigent counsel. Under such a system, judges would appoint an attorney from the first five names appearing on a rotating public appointment list of lawyers who were pre-approved by a majority of the judges. The act, however, allows for counties to establish alternatives to the rotation system. In Harris County, as well as Dallas County, judges have opted to establish such alternative systems. Critics of the term-lawyer approach maintain that defense attorneys who serve at the pleasure of a judge may lack independence. “In order to render effective counsel, a lawyer cannot have his pay dependent on a judge,” says Houston County Criminal Lawyers Association (HCCLA) chairman Jack Zimmermann. “There is only one purpose for those [term] lawyers: to help judges move dockets,” alleges Houston defense lawyer Mike Charlton, who served on the board of directors of the HCCLA and on a task force of that organization that was created to help set up guidelines for implementing the Fair Defense Act’s reforms. Stricklin stresses that a summary of docket schedules doesn’t indicate that Harmon and the term lawyers he appoints are ramrodding any cases. Indeed, the docket summary shows just the opposite. According to a docket schedule for Feb. 10, Harmon’s court had 164 cases scheduled for jury trials, almost twice as many as any other Harris County Criminal district judge. Bill Beardall, executive director of the Equal Justice Center, a nonprofit Houston organization, believes that the use of term lawyers creates obstacles for qualified indigent representation. “They [term lawyers] are under pressure not to drive up costs,” says Beardall, who spearheaded his group’s lobbying campaign for the reforms in the 2001 legislative session. “And that can mean not giving effective counsel.” Along with Stricklin, Oncken strongly disputes such notions. “We have no pressure whatsoever to push cases through,” says Oncken, who has been one of Harmon’s designees to represent indigent clients in the judge’s court for the past 12 years. He previously served as a prosecutor in Harmon’s courtroom. “The judge just wants us to be lawyers. That’s why I like working in his [Harmon's] court.” Recommendations Made In the fall of 2001, the HCCLA recommended to a task force of Harris County criminal district judges that they consider adopting a rotation system whereby a computer program, rather than a judge or his or her subordinates, selects a lawyer for each indigent defense appointment, Zimmermann says. Zimmermann says that Harris County did not adopt the HCCLA’s recommendation because the district judges resisted it. When the judges voted on how to implement the act’s reforms, they banded together to stop a courtwide system from being installed, he says, and adopted a plan that allowed each judge to devise his or her own system. After the judges made it clear they had no intention of working with one system, Zimmermann says, “we let them know that we thought they were not in compliance with the act.” Stricklin has a response to HCCLA’s criticism. “I realize that HCCLA is not enamored of the term lawyers,” she says. “But everybody is getting an opportunity to submit their qualifications, and every term lawyer is chosen off of that approved list. I think there are lawyers in HCCLA who don’t do court appointments regularly and don’t understand how it works.” She doesn’t, however, begrudge the defense lawyers’ association the right to raise the questions. “They’re entitled to their opinion, and I think they’ve raised some interesting issues,” Stricklin says. Zimmermann plans to continue pressing the judges to steer away from the term-lawyer approach and opt for one with less direct judicial control over who receives indigent-defense appointments. Stricklin says Zimmermann asked her for some of the statistical trends about the term-lawyer systems since the Fair Defense Act went into effect. She says she has sent the data to Zimmermann but that nothing in it struck her as anything that would raise questions about the kind of representation indigents are getting in Harris County. “We know that we have nothing to gain by giving people bad lawyers,” Stricklin says. HCCLA member Jim Leitner, a criminal defense solo practitioner in Harris County who says 70 percent of his practice comes from appointed cases, has a different take on the term-lawyer debate. Leitner says unlike some HCCLA defense lawyers, who don’t take that many court-appointed cases, he believes that indigent defense in Harris County has improved since the passage of the reforms. “The Fair Defense Act has done wonders because it pays us more,” Leitner says. In his own practice, Leitner says, he has increased his income 30 percent, while reducing the number of cases he has pending by about 15 percent. Under the reforms, he is working harder on fewer cases, Leitner says. On average, appointed attorneys in Harmon’s court earned $633 a day and $1,397 per case in the first 11 months of 2002. According to records kept by the Harris County auditor, during that 11-month period, the county paid Oncken $100,489 for defending 73 indigent cases. On average, the county paid Oncken $1,376 per case and $460 per day. Oncken says in addition to the work in Harmon’s court, he represents clients by whom he is privately retained in other Harris County courts. He does not, however, receive appointments to represent indigents from any other judges. His private representations constitute about 25 percent of his practice. His work in Harmon’s court represents the other 75 percent, he says. Leitner also believes that term lawyers, who get appointed to defend indigent cases in a particular courtroom for a day or a week at a time, sometimes can better serve their clients than retained counsel because they become familiar with a judge’s rulings. “They get a better idea of the geography of that courtroom,” Leitner says. But Leinter says that the term lawyers who stay on for longer periods — like those whom Harmon selects to represent indigents in his courtroom for a year at a time — may become too familiar. “I think those long-term relationships are always going to make things move more quickly, but there is a grave chance that justice is going to take a hit,” Leitner says. A System That Works In the 178th District courtroom, however, Harmon says the term-lawyer system works fine. The judge says that the alternative attorney-assignment systems proposed by Zimmermann’s group — under which computers spit out a list of lawyers from which judges choose — would have created logistical nightmares. “It’s unnecessary,” Harmon says. “Harris County has plenty of lawyers in the courthouse every day. It is completely unnecessary to use some of kind of computerized system and then have to hunt that lawyer down.” The judge says his concern is that lawyers selected by the computer would not arrive on time to give a defendant speedy access to the courts. Harmon says his use of term lawyers does not create any lack of independence between defense counsel and himself because he does not assign each attorney to each case. Instead, usually three term lawyers divvy up the cases among themselves with the help of the court coordinator each morning. The judge has six term lawyers in his court, with three at a time working in the courtroom. Each of the term lawyers typically represent indigents in his courtroom every other week. Harmon believes any system of assignment could be construed to create conflicts. “Anybody who wants to find the appearance of a conflict can find it no matter what system we have,” he says. “The only alternative is a public defenders’ office.” In addition to Oncken, Harmon has designated five other contract lawyers. In the first 11 months of 2002, they handled 57 percent of the 429 indigent defense cases on Harmon’s docket. In the remaining cases, Harmon taps other lawyers who aren’t in his courtroom every day and don’t have verbal agreements with him. In capital cases, for instance, Harmon allows a computer to select a lawyer from the roster of attorneys that all the judges have approved as competent to handle such defenses. In cases in which the defendants speak only Vietnamese, for example, Harmon taps a lawyer who is fluent in that language. Harmon has no concerns that indigent defendants receive poor representation in his court. The term lawyers whom he has selected were all approved by a majority of the district judges as qualified for felony cases, Harmon says. “If I thought they were editing their actions [to please a judge], they wouldn’t be in my court anymore,” he says. The judge also defends his approach on the county Web site where his court’s procedures for indigent defendants are published. “The establishment of one-year terms and the specified conditions of appointment are intended by [judge Harmon] to ensure the independence of any attorney selected for term appointments,” Harmon states on the site. “If a term attorney is terminated during the term, the court will state its reasons for such action.” With so many of the same appointed counsel spending so much time in Harmon’s court day after day, and the same prosecutors returning, his courtroom has a relaxed, we’re-all-at-home atmosphere. At 10:20 a.m. one day last December, Harmon slid behind his desk without any of the dozen or so lawyers who were chatting away in the courtroom rising to recognize his arrival. “Tracy is buying us all lunch today. She won $500 in scratch money,” the judge joked and pointed in the direction of the Harris County probation officer stationed in his courtroom. “I am not,” the probation officer protested. Scheduled that day were hearings fordefendants alleged to have committed crimes such as capital murder, forgery, assault with a deadly weapon and theft. The handful of men and women scattered across the gallery benches looked sleepy. But in the front of the room, the lawyers were in constant motion and bellowing in street-loud voices. Five times during a 90-minute period, the bailiff hushed the room. Harmon seemed oblivious to the constant roar. Marie Munier, an assistant district attorney in Harris County and the director of the trial division, says of the clamor in Harmon’s court: “Just because it doesn’t look professional, I don’t think you can make the assumption that justice isn’t being done.”

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