Monday, January 25, 2010

Who is indigent in Harris County?

It is a rarity in Harris County for any defendant who is out on bond to receive appointed counsel. There is even one judge in the Criminal (In)justice Center who will tell a (bonded) person seeking appointed counsel that he must sell every non-essential item in his possession and show that he still cannot afford to hire an attorney before the judge will appoint one.

Nevermind that the purpose of bail is not to punish a person but is, instead, a means of guaranteeing his appearance in court.

On December 3, 2008, the Harris County Criminal Courts last amended their Standards and Procedures [for] Appointment of Counsel for Indigent Defendants pursuant to the Fair Defense Act.
1.0 Financial Standards for Determining Indigency

The indigency standards adopted by the judges shall apply to each defendant equally, regardless of whether the defendant is in custody or out on bail.

1.1 A judge shall consider the following criteria as incorporated by the form adopted by the board of judges in determining whether a defendant is indigent:

1.1.1 defendant's income;
1.1.2 source of income;
1.1.3 assets;
1.1.4 property owned;
1.1.5 outstanding obligations;
1.1.6 necessary expenses;
1.1.7 the number of ages of dependents; and
1.1.8 spousal incomes available to defendant.

1.2 The judge shall not consider whether the defendant has posted bail, except to the extent that it reflects the defendant's financial circumstances.
In Galveston County I have been appointed to represent many a defendant who has posted bond, yet is still eligible for "appointed" counsel (much more on this topic later); yet in Harris County most of the client's for the appointed attorney are still donning the orange jumpsuits of the Harris County Jail.

Many of the misdemeanor defendants were charged with nonviolent offenses yet were denied personal bonds due to the magistrates' strict obedience to the Harris County bond schedule (misdemeanor and felony). The denial of personal bonds (and the subsequent refusal to request one) lead to the mass plea in which defendants "voluntarily" waive their rights to trial by jury, confrontation and appeal in exchange for time served so they can get out of jail and back to their families or jobs.

Convictions based upon expediency and judicial economy -- not on the merits. That's not justice.


Cynthia said...

I can comment on the contrary for one court - CCCL 7. Judge Derbyshire does not make people in jail fill out indigency forms, and assumes they are indigent or they would have made a misdemeanor bond. However, if they make bond, she requires that they fill out the form. I believe this is more than fair.

In addition, she requires that the person get a job, or make a very reasonable effort to do so, before appointing a lawyer if the person is an able-bodied person. If they have a miminum (or close) wage job, disability, etc., she will appoint, or keep on the lawyer she previously appointed. I believe that she is very, very fair in regard to this issue.

Tax payers should not shoulder the cost of an appointed lawyer for someone who choses to lay up on their butt rather than work. I know for a fact that there are jobs out there for people - even those charged with criminal offenses.

As for other judges, I agree that there are MANY who abuse the system & try to make people who cannot afford to do so hire lawyers just because they made bond. If these same judges were properly using the pre-trial bond system, I believe they would be less inclined to try to force hiring lawyers when the person cannot afford to do so. (And, just because a relative makes a bond for someone does not make that relative owe for the lawyer's fees. As you know, that oftentimes happens, and then the person is still with insufficient funds to hire a lawyer despite what the judge thinks otherwise.)

Good post, Paul.

Houston DWI Attorney Paul B. Kennedy, said...

Thanks for your comment. I'm not sure what the solution is - all I know for certain is the current system coerces those who can't make bond to plead out on the first setting and forces some defendants to hire the "$150 and a plea" attorney.

Thomas Hobbes said...

What if the defense attorneys were a bit more aggressive and actually used the personal bond office and the information it gathers to argue for personal bond release?

Houston DWI Attorney Paul B. Kennedy, said...

Thank you for the comment.

There is no such beast as the personal bond office in Harris County. Down in Galveston there's a department called Pre-Trial Services that offers reduced fees on bonds (about 3% of the bond amount).

The only way to get a personal bond for a client in Harris County is to ask for it. You ask the prosecutor and when they say "no" you go to the judge.

I do agree that attorneys must be more aggressive in requesting personal bonds for their clients.