In a rare unanimous decision, the U.S. Supreme Court in 1963 handed down the landmark decision known as Gideon v. Wainwright. The decision held that the state must provide indigent criminal defendants appointed counsel if they cannot afford to retain private counsel.
In an October 2018 report, the U.S. Justice Department continued findings previously made by former Attorney General Eric Holder that:
“Despite the significant progress that has been made over 50 years after the decision, the promise of Gideon remains unfulfilled. The quality of criminal defense services varies widely across states and localities. Many defenders struggle under excessive caseloads and lack adequate funding and independence, making it impossible for them to meet their legal and ethical obligations to represent their clients effectively. The problem of mental illness and juveniles in our criminal justice system pose special difficulties for achieving fairness and justice.”
Texas Appointed Counsel System Destroys Promise of Gideon
In an August 19, 2019 joint investigative piece by the Texas Tribune and the Texas Monthly, Neena Satija, the author of the piece titled “How Judicial Conflicts of Interests Are Denying Poor Texans Their Right To An Effective Lawyer,” found that broadly different county indigent defense systems, exorbitant caseloads, and unchecked judicial appointment powers have virtually destroyed the “promise of Gideon.”
In 2001, under the forceful guidance of former Harris County Senator Rodney Ellis (current Harris County Precinct One Commissioner), the 77th Texas Legislature passed the Fair Defense Act, “creating the blueprint for distribution of indigent defense funding from the State of Texas to local government through the creation of the Task Force on Indigent Defense, the first state body to administer statewide appropriations and policies.”
Ten years later (2011), the 82nd Texas Legislature established the Texas Indigent Defense Commission (TIDC) whose purpose is to provide financial and technical support to the state’s 254 county indigent defense systems to ensure that they meet the requirements of the Constitution and state law.
The result?
Despite Legislative Attempts Indigent Defense Still Inadequate
According to Neena Satija, Texas spent $91 million on indigent defense systems in 2001; by 2018, that amount has increased to $273 million—the latter amount still unable to meet the cost demands of the most state indigent defense systems. The following are highlights of Satija’s extensive investigation:
- In 2017, an appointed attorney made an average of $247 per misdemeanor case and $598 per felony case.
- In most Texas counties, judges decide which attorneys will be appointed in indigent case, a practice condemned by the American Bar Association and some state indigent defense systems because lawyers should be independent from the judiciary.
- While counties have pay schedules for appointed attorneys, judges set the schedules and have discretion over the amount the attorneys will be paid.
- Based on county appointment data, the TIDC found that a Texas lawyer can reasonably handle 128 felony cases or 226 misdemeanor cases, or a “weighted combination of the two.” In reality, appointed attorneys are handling “two, three or even four times that load.”
- “Today, the TIDC databaseis staggering in its reach. With just a few clicks, anyone can look up lawyers by name and see how many indigent cases they took, and in what court and for how much. Finding the highest-earning attorney, or the most overloaded, takes minutes. Consider just a few names: In Harris County, in fiscal 2017, an attorney earned more than $131,000 for work on 433 indigent felony cases, which all came from the court of Judge Jim Wallace. In the Panhandle, Artie Aguilar won a contract in fiscal 2018 to handle all indigent felony cases in Dawson, Gaines, Garza and Lynn counties — a total of 322 cases, for a payment of $75,000. T. D. Hammons, who takes cases around Amarillo, was paid $99,450 in fiscal 2017 for work on 129 felonies and dozens of misdemeanors. He reported that these took up less than 60% of his time, meaning that the rest of his time was devoted to additional clients.”
- Harris County appointed attorneys are “notoriously overburdened, and its judges had come under fire in the media for cronyism. In one famous example, the Houston Chronicle had reportedin 2009 that attorney Jerome Godinich missed deadlines in death penalty cases and carried a high caseload. Six years later, Godinich still handled almost 500 felonies a year, including several capital murder cases. Most of his appointments came from Judge Jim Wallace; Godinich was one of Wallace’s top campaign contributors. (Godinich and Wallace did not respond to requests for comment.)”
- The number of cases an appointed attorney may handle in Travis County is 100 misdemeanor and 90 felonies while in Harris County public defenders have agreed to take on no more than 128 cases per year, down from the current level of 150 cases.
- Inadequate funding and varied approaches to the number of appointments-per-attorney has created statewide indigent defense systems that routinely provide “inadequate representation” to poor defendants.
- “After a sweep of Democratic judges came into office [in Harris County] in November, the public defender’s office budget nearly doubled, to $21 million a year. Its juvenile division — whose attorneys had been receiving an average of 141 cases per year, versusthe 300-plus cases per year appointed to some private attorneys — had started receiving enough cases to hire three more lawyers. The county was also exploring managed assigned counsel for its court appointments, including — in a radical move — a proposal that lawyers adhere to TIDC caseload recommendations.”
- Some newly elected Democratic judges in Harris County, who were former public defenders, are now asking attorneys they appoint to indigent cases “to host fundraisers,” the very conflict of interest practice frowned upon by the ABA.
These conclusions are disturbing. They reveal that ineffective assistance of counsel is systemic in Texas indigent defense systems. While ineffectiveness is sometimes the product of an unprofessional attorney, it is more often the result of appointed counsel not having the resources necessary to provide an adequate defense: fact-finding investigators, mental health experts, forensic specialists, or trial consulting services.
We urge Harris County judges to continue their efforts to secure the funding needed to ensure we have a professional, competent indigent defense system. We also urge these judges to keep attorneys they assign to indigent cases out of their reelection campaigns. The promise of Gideon will be fulfilled only when there is adequate funding for indigent defense systems and judges determined to protect the integrity of those systems.