Tuesday, August 7, 2012

The assault on indigent defense down on the island

For the latest assault on indigent defense we go down the road to Galveston County where judges will vote on changes to the county's indigent defense program this month.

According to scuttlebutt, the new policy will include a strong suggestion that three hours is appropriate for a misdemeanor case resulting in a plea. That means three hours to consult with the client, review the state's file, investigate the facts, interview witnesses, consult with the prosecutor and appear in court for the plea.

If the judges intend to question vouchers should an attorney ask for more than three hours compensation for a plea bargain case, they are taking direct aim at the notion that an indigent defendant is as entitled to a vigorous defense as a client who can afford to hire counsel.

If the idea is to cut the amount of money the county spends on appointed counsel in misdemeanor cases, the result will be a much more efficient plea machine on the second floor of the county courthouse. If attorneys are going to have to fight to be compensated for more than three hours on a plea bargain case, the plan creates an incentive for a race to the bottom.

Why spend the time working up a case when you can be paid just as much sitting on your ass doing nothing just waiting for the next court date to plead your client out? Everyone who has practiced for any time in Galveston knows that when the basis of the stop is criminal trespass or not walking on the sidewalk, that something foul is afoot.

I once had a minor dope case in which the reason for the stop was my client walking in the street and not on the sidewalk. After viewing the area of stop on Google Maps and then driving through the neighborhood, imagine my surprise that there wasn't a sidewalk to walk upon. My client's case was dismissed, but, with another attorney and the presumptive three-hour rule, what fate might the young man have faced?

Of course the adequacy of defense that an indigent client receives isn't of much concern to the judges. Indigent defendants don't make up a political bloc that candidates have to attract in order to win the election. The judges are aiming for higher income voters in the suburbs in the northern half of the county - and those voters don't give a damn about poor black or hispanic youth on Galveston Island or just over the causeway.

With the new Republican majority in Galveston County, there is no constituency that will be in arms about the state of indigent defense. And with no one to stand up for the poor, there will be no one to challenge the judges as they push to gut indigent defense.

Since around 90% of criminal cases end in plea bargains, this race to the bottom will only serve to eviscerate further indigent defendants' right to (effective) counsel.

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