Yet another reason why it sucks to be poor

Nowhere in the warning does it say that the government could come and ask you to pay for your appointed lawyer's services.

Kelly Unterburger found that out the hard way. After being arrested in 2011 for possession of a controlled substance, Mr. Unterburger asked the court to appoint him an attorney because he was indigent. By the time his case was resolved in 2014 (he spent the entire time in jail), he was presented with a bill from Johnson County for almost $10,000.

The State of Texas allows counties to recoup the cost of appointed attorneys from defendants, provided they warn defendants that they will be held responsible for the fees.

Prior to September 1, the government had until sentencing to determine whether or not a defendant would be required to pay for his or her appointed attorney. That determination was made on a defendant's financial status up to that point. A new law makes it possible for counties to come back at any time during a defendant's sentence (whether he be in prison, jail or on probation) to re-evaluate the defendant's ability to pay the fees.

Hill County District Attorney Mark Pratt says the bill was designed to protect the interest of law-abiding citizens who are being asked to pay for counsel for indigent defendants.

Bullshit!

The real purpose of the law is to coerce more indigent defendants to plead their cases early in the process in order not to run up high attorney fees. The new law serves to punish those who exercise their right to trial by jury in a criminal case.

This is part of a larger war on the poor that has been waged for decades in this country - and in this state. Most defendants are indigent to one degree or another. They spend months, if not years, in jail awaiting the resolution of their cases because of our for-profit bail bond system. Then, once the case is resolved they get hit with a bill for attorney fees.

Meanwhile the wheels of our criminal (in)justice system just keep a-chugging along.

The numbers don't lie

Thanks to Robb "The Czar" Fickman, a constant pain in the side for the established order in the Harris County criminal (in)justice system, we know the caseloads for every lawyer who accepted a court-appointed case in Harris County in 2011.

We also know how those caseloads compared to the National Advisory Commission's recommended guidelines.

What we see is a pattern of certain attorneys commanding a lion's share of appointed work. Harris County supposedly uses a series of methods to appoint counsel: some courts have contract attorneys, some courts use the Public Defender's Office (not an option in 2011) and other courts use "the wheel." The wheel is supposed to assign attorneys randomly to courts and/or cases.

The numbers revealed, as Mr. Fickman points out, that it's the judges who control the appointment list in Harris County. And, as anyone who has ever practiced criminal law knows, the most important priority for a judge is to move cases off the docket. And those cases don't get moved by taking them to trial and holding the state to its burden of proof. Those cases get moved by pleading them out - one after another.

Those who play the game are rewarded. As Mr. Fickman puts it

The Harris County Criminal Appointment system is controlled by the judges. It is their creation and it is a wretched creation.  Favored lawyers who are known to move cases are given an obscene number of court appointments.  Lawyers who work hard on cases, who do their job are given a much smaller number of cases.  The result is a small group of lawyers, handling an exceedingly large number of cases.  Likewise, the result is a large group of lawyers,  who are competent, are not given enough cases.  This is not a matter of opinion. This is a matter of fact. The fact is demonsrated by the link that I am providing. Look AT IT!! It will show you lawyers that are handling 2, 3 and even 4 times the national recommended number of cases. 

Gerald G. Acosta had the highest caseload in 2011. He received 255 juvenile appointments, 387 misdemeanor appointments and 278 felony appointments. That works out to a total of 920 appointments during one calendar year. If Mr. Acosta worked year-round that means he received just under 18 criminal appointments per week and 3.5 per day.

According to the NAC, that caseload is more than four times the recommended maximum caseload for an attorney. There is no way that anyone can convince me that it is possible for one attorney to provide effective representation to that many clients over the course of one year.

David L. Garza came in a close second with 599 misdemeanor appointments and 295 felony appointments for a total of 894 appointments in 2011. That works out to just a shade over 17 appointments per week and just under 3.5 a day.

His caseload was 3.5 times that recommended by the NAC.

In third place was Ricardo N. Gonzalez who received 44 misdemeanor appointments and 463 felony appointments in 2011 for a total of 507 cases. That would be almost 10 appointments per week and just about two per day.

His caseload was 3.2 times that recommended by the NAC.

Humberto Trejo was number four. Mr. Trejo received 470 misdemeanor appointments and 278 felony appointments for a total of 748 appointments. That comes out to a little over 14 appointments a week and almost three a day.

Mr. Trejo's caseload was three times that recommended by the NAC.

And rounding out the top five is Kerry H. McCracken. Ms. McCracken received 419 felony appointments in 2011 which works out to eight appointments a week and a little over 1.5 per day. Her caseload was 2.8 times that recommended by the NAC.

Given those caseloads, just what do you think the odds are that a case is going to receive a proper investigation? It is physically impossible for an attorney to do the work necessary to defend that many clients in a year. The result is a parade of pleas every day down at 1201 Franklin.

The system is broken beyond repair. The judges cannot be trusted to manage it. They have a built in conflict of interest. The decision who to appoint must be taken out of their hands and placed in the hands of someone who has no interest in who is appointed. As things now stand, if you are poor and cannot afford to post bond, you are more likely to be pressured into pleading than fighting.

So long as the system remains as is, there will be no justice for indigent defendants in Harris County.

Indigent defense under attack again

You know the drill.

You have the right to remain silent. Anything you say can and will be used against you. You have the right to an attorney. If you cannot afford an attorney, the court will appoint one for you...

And who pays for those attorneys? The taxpayers do. And with counties and states looking to slash budgets due to reduced revenues, fees for court appointed attorneys are among the first to go. And local governments have to find ways to pay for those tax breaks and other goodies they toss at corporations to set up shop in their backyard.

Down in Florida the legislature decided to move away from paying appointed attorneys by the hour and to institute flat fees for certain criminal cases.

Not that there's anything inherently wrong with flat fees. Most of us charge a flat fee because we know it's about the only way we know we're going to get paid. Of course we charge what the market will bear.

Not so for court appointed attorneys. The state set the fees low. Very low. So low, in fact, that the fees serve only to discourage appointed attorneys from defending an indigent client with the same level of vigor as a paying client.

The Palm Beach Post gives us the story of Joe Walsh, a criminal defense attorney who took over a case when the original attorney appointed to handle the matter became ill. Mr. Walsh spent 40 hours on the case and his client ended up walking out of jail with time served on an aggravated battery charge.

Mr. Walsh's reward from the State of Florida was a check for $1,000 that he will have to split with the original attorney.

Normally, Walsh would have charged a fee for his work as a private attorney who takes court-appointed cases when other lawyers cannot. But now, because Florida this year created a small registry of court-appointed attorneys who will be paid flat fees, Walsh must split $1,000 with the previous attorney assigned to the case — taking home less than a third of what he would normally make. 

“It’s sad, because the legislature is putting financial concerns over a defendant’s constitutional right to representation,” sadi Walsh, whose offices are in West Palm Beach. He would have been paid $5 to $10 per hour for his work if he applied the new fees to some of his old cases. The state’s minimum wage is $7.67 per hour. 

The push behind the new law, which lawmakers passed in March and went into effect July 1, was to lower the amount of state money paid to private defense lawyers. State records show the state paid $6.5 million over its original $3 million budget.

No one can afford to work under such conditions. And that's exactly what the Florida legislature counted on. The low flat fee serves only to encourage appointed attorneys to plead their client's cases out as soon as possible. After all, if you're already being underpaid on a case, why go any further than you have to?

The Florida Association of Criminal Defense Lawyers knows this and that's why they filed an objection with the head of the Miami-Dade County Circuit Court. Such a scheme makes a mockery out of a criminal defendant's right to, not only, counsel, but effective counsel.

As Karl Marx might have said, this is the inherent contradiction in the state providing attorneys for criminal defendants who can't afford to hire one on their own. Indigent defendants have a right to be skeptical of their appointed counsel knowing that their attorney is being paid by the same people who are prosecuting him. As long as we leave the cost of appointing attorneys to state and local government there will always be a tension between the state's desire to prosecute and that state's obligation to appoint counsel. And we all know who comes out ahead in that fight.

When states and counties talk about improving the efficiency of their indigent defense programs they are really talking about reducing the cost of appointing attorneys and increasing the number of pleas. And whether this be accomplished by low flat fees, ridiculously low hourly rates or increasing caseloads on public defenders is quite immaterial to those who control the purse.

Indigent defendants take a hit

In its infinite wisdom, Harris County Commissioners' Court has decided to balance its budget on the backs of indigent defendants. The new policy on compensation for appointed counsel represents a one-third cut for attorneys taking court appointments.

The old policy allowed appointed counsel to bill the county for up to three cases a day. The new policy states that appointed counsel will only be paid for two cases a day. In addition, if an indigent defendant retains other counsel, the appointed attorney will not be paid for an appearance if he is substituted out. Nevermind that the attorney had no knowledge of the substitution at the time he entered the courthouse that morning.

Oh well, it's not like indigent defendants comprise a large voting constituency for county-wide elections.

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.

Court revives appeal filed after deadline

The Fifth Circuit Court of Appeals reversed itself yesterday and revived a death row inmate's appeal that had been denied for being filed one day late.

Keith Thurmond's attorney, Mr. Jerome Godinich (yes, that Jerome Godinich), blamed his late filing on the court's broken fax machine, a claim at which prosecutors scoffed. Ironically enough, one of Mr. Godinich's previous clients was executed when his appeal was denied because... drum roll, please... the appeal was filed one day late because of... here it comes... a broken fax machine.

When asked, Mr. Thurmond said he hadn't spoken with his attorney in months and figured the appeal was hopeless.

The Chronicle noted that Mr. Godinich was "one of the county's busiest court-appointed attorneys."

New appointment system for capital cases in Harris County

A new day is dawning in Harris County when it comes to appointments in capital cases. On Tuesday, a panel of judges introduced a sweeping reform of the manner in which attorneys are appointed to represent indigent defendants charged with capital murder.

Through the creation of a database called the Fair Defense Act Management System, judges will be able to view an attorney's misdemeanor and felony case load before assigning a capital case. Harris County officials hope to avoid future situations in which an attorney accepts more appointed cases than he can handle competently (see "It all adds up to incompetence").

“Do I think sometimes there are folks who are innocent of crimes who are convicted wrongly? Absolutely. This is a great stopgap.” -- Harris County District Clerk Loren Jackson

The creation of this new database is another example of what new Harris County District Clerk Loren Jackson has brought to the table since taking over the office in January. Mr. Jackson has spent his time in office working on ways to use technology to make the flow of information in the District Clerk's office more efficient and more manageable.

It all adds up to incompetence

Today the Houston Chronicle reported that more than one-third of the attorneys appointed by Harris County judges to represent people charged with capital offenses accepted over 150 felony assignments per year -- the standard adopted by National Legal Aid and The Defender Association. The article highlights attorney Jerome Godinich, who has averaged more than 350 felony assignments a year!

Let's do the math. There are 52 weeks in a year and five working days in a week. That's a maximum of 260 days at the courthouse -- not counting holidays. That means that Mr. Godinich accepts, on average, at least 1.3 felony cases a day, every day. There is no way a competent attorney can provide meaningful representation to his clients working that type of case load.

Stephen Bright, an expert in capital case representation who has taught at Yale and Harvard law schools and reviewed the Chronicle’s findings, said death penalty lawyers have no business handling nearly 400 clients in one year. “That’s way too many cases and would not leave time for any other cases, particularly capital cases.”

The article also points out that judges have ignored their rules and doled out more than one capital assignment to an attorney within a 60 day period.

Godinich took three capital appointments in less than one 60-day period in 2008. One client was found incompetent to stand trial after drinking toilet water, disrobing and claiming he was Jesus Christ II while in the Harris County jail; another was a 15-year-old who pleaded guilty to felony murder charges and accepted a life sentence without possibility of appeal; the third hired another lawyer.

Godinich has agreed to take as many as 10 simultaneous capital cases over the past five years, though only a few were death penalty cases.

Even more disturbing is the line that "[s]ome felony cases can be resolved in minutes..." It is impossible to investigate a felony case in "minutes." It is impossible to determine whether there are any legal issues to litigate. It is impossible to analyze the factual evidence or to interview witnesses in "minutes." The only thing that's possible to do in "minutes" is to parade a client in front of a judge and have him branded a felon for life.

Godinich, who juggles federal cases and misdemeanors along with his 360 felonies, has refused interview requests. But in a letter to the Chronicle, he defended his indigent defense record, saying he aims to defend his clients “to the best of my ability.”

“That entails working seven days a week and investing countless hours in preparation to ensure that my clients receive their rightful due process,” Godinich wrote. “ It is not an easy job, but it is work that is challenging and has given me enormous personal satisfaction. That is why my clients know who I am and depend on me to stay invested in the process.”

One of his hundreds of Harris County clients, Phillip Hernandez, has been awaiting trial for 18 months on child sexual abuse charges and claims Godinich has never visited him in jail to discuss his innocence claim. Hernandez’s pre-trial hearing was scheduled earlier this month, but the inmate said he learned it had been postponed at the last minute from a bailiff. Godinich did not attend court that day, records show.