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The State Bar of Texas board of directors balked at endorsing a report that cites the need for reform in the way the state provides lawyers to indigent defendants but directed the committee that wrote the report to draft standards aimed at assuring better representation for the poor in criminal cases. After days of negotiations on the report, which some judges say goes too far, the Bar’s board of directors voted at its Sept. 22 meeting in Laredo to receive the document but not to accept it. Board chairman Dick Miller, a San Saba, Texas, lawyer, says it would be premature to debate points in the report prepared by the Committee on Legal Services to the Poor in Criminal Matters because most board members don’t deal with criminal issues and need time to study the report. “If action is needed, we need to take action,” Miller says. The board asked the committee to develop standards that address the qualifications a lawyer should have to be appointed to a case, the method judges use to make such appointments, and how the system should be funded. If the board gives its approval, the standards developed by the committee could be sent to the Texas Court of Criminal Appeals with a request for action. The report, “Muting Gideon’s Trumpet,” is based on almost 3,000 survey responses from criminal-defense lawyers, prosecutors and judges. Evidence gleaned from the surveys indicates that defendants able to hire their own lawyers get better representation than indigents who are dependent on court-appointed lawyers. “Simply put, the state of Texas is a national embarrassment in the area of indigent legal services. Texas leads the nation in the number of folks that it executes, all of whom are indigent, yet it trails most of the nation in the level of services it provides indigents charged in criminal matters,” the report said. Tarrant County Magistrate Judge Allan Butcher and Michael Moore, a political science professor at the University of Texas at Arlington, prepared the 37-page paper. Court of Criminal Appeals Judge Sharon Keller says the report includes some good information, but some of the conclusions it draws are not justified. “To call it dysfunctional, I think, does a discredit to the people who participate in it — the defense attorneys. I think for the most part they are dedicated to their work, and it’s not dysfunctional because of that,” Keller says. Keller also says that trial judges, for the most part, are concerned about appointing good lawyers to represent indigents and providing resources necessary for an adequate defense. But she says she is glad the recommendations will be reviewed to determine what improvements can be made. “I think everybody is in agreement that we ought to have the best indigent defense system that we can and whatever change can be made ought to be made,” she says. “So it’s really in the details of how to accomplish that that any disagreement is going to come up.” Charles Aycock, immediate past president of the State Bar and a lawyer in the small town of Farwell, Texas, says any standards that the Bar recommends must give judges flexibility in appointments or they will not have an adequate pool from which to draw lawyers in rural areas. “If the standards are not pretty broad, a judge could have a difficult time picking a lawyer to defend a criminal. We really have to be careful about that,” says Aycock, who serves as the Parmer County attorney. Aycock says Parmer County, located in the Texas Panhandle, has five lawyers who could be appointed to defend indigents in criminal cases, but a neighboring county doesn’t have any. David Keltner, a Fort Worth lawyer who lobbied the Bar to make sure the report was not rejected, says, “You can’t look at this system and not come to the conclusion we have problems in the appointed system.” Keltner, a partner at Jose, Henry, Brantley & Keltner, says Texas is one of five states that doesn’t provide state funding for the representation of indigents in criminal cases. Because those costs are borne by counties, some commissioner courts put pressure on judges to pay only a small amount for indigent defense, he says. “But if it’s a societal goal to have representation of indigent criminals, you can’t just do that on the backs of lawyers,” Keltner says. DO THE RIGHT THING A national spotlight has been shining on Texas’ indigent defense system this year as Gov. George W. Bush campaigns for the White House. Attention has focused on the representation provided to the men and women on the state’s death row. However, some State Bar members have been concerned that the committee’s report could be used to attack Bush, who last year vetoed a bill that would have made changes in the way criminal defense lawyers are appointed in indigents’ cases. Texas Supreme Court Justice Craig Enoch says the Bar should look at the big picture to determine whether there is something in the system that skews the ability to ensure that every individual has equal access to justice. “What is the community willing to do to minimize the mistakes and maximize justice?” Enoch asked. “If the public got the sense that mistakes are being made in a greater number than the public is willing to tolerate … then there will be some changes coming out.” Efforts under way on the federal level could force Texas to make some kind of changes in its system for providing lawyers for the poor. Catherine Greene Burnett, co-chairwoman of the committee that will recommend standards, says legislation pending in Congress would require that states develop standards for the qualification of lawyers and standards for compensating those appointed in capital cases. The legislation, which deals primarily with DNA testing, also would require a system for monitoring lawyer performance, says Burnett, an associate dean and professor at South Texas College of Law. If Texas doesn’t get in line with those standards, it could lose millions of dollars in federal grants that help fund prosecution efforts in the state, she says. “So we’ll have a financial reason to do the right thing,” Burnett says. Once the state develops standards for the representation of defendants charged with capital crimes, she says, the same template can be used across the board. Keltner says the Bar could urge the Court of Criminal Appeals to adopt the standards or it could seek adoption of the standards through the administrative judicial regions. The Bar also could ask Texas Supreme Court Chief Justice Tom Phillips to adopt the standards, but Keltner says Phillips probably would prefer to coordinate with the CCA. The State Bar, assisted by its judicial section, will sponsor a symposium on indigent defense on Dec. 7 and 8 at the Texas Law Center in Austin. The symposium will provide Bar members a chance to discuss the problems and discuss how to solve them. Keltner says the only way change is going to occur is if all 70,000 members of the State Bar say collectively that the situation is intolerable and recommend a solution. “I don’t think any court in this state is going to back down from that,” he says.

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