APPOINTMENT OF DEFENDERS VARIES IN COUNTY

Some Judges Create Own Systems; Critics Call For Independent
Office

Harris County doesn't have a public defender system to provide lawyers
for indigent defendants, but it does have some variations on court
appointments.

More than a decade ago, District Judge Michael McSpadden, long a
critic of the appointive system used in most Harris County courts, set
up his own quasi-public defender system.

He contracts with three experienced criminal defense attorneys to
handle virtually all indigent cases in his courtroom.

McSpadden said his approach saves taxpayers' money, and increases the
quality of representation.

"I made the same mistake many of the other judges have made,"
McSpadden said. "There were times I had to stop trials because the
lawyers I appointed were obviously not experienced enough to handle
the cases."

Several other judges have followed his example and set up some form of
contract system.

But while McSpadden's system may look like a public defender program,
many critics believe it is more like a wolf in sheep's clothing.

"As long as the judge is in control, it is a bad system," said
attorney John Ackerman. "In order for a defendant to get proper
representation, the system must not be under the control of judges or
prosecutors."

Ackerman, who has served as a state district judge in Harris County
and as a public defender in his native Wyoming, said defense attorneys
must be loyal to their clients, which is not possible as long as the
judge pays their salaries.

"No matter what kind of a lawyer you are, you are going to be certain
that you do not do anything to offend that judge," Ackerman said. "And
trying to keep the judge happy is not a good thing for someone who has
the responsibility of defending an indigent defendant."

In order for a public defender system to properly represent indigent
clients, it must be independent and have enough money to pay lawyers
to vigorously defend their clients, Ackerman said.

That means taxpayers have to be willing to fund a public defender at a
level comparable to the district attorney's office, Ackerman said. He
acknowledged that is a political longshot in Harris County and many
other jurisdictions.

Early in his career, Ackerman set up such a program to serve the state
courts in Casper, Wyo., and served as the public defender there for
two years during the mid-1970's. That program, Ackerman said, was
later used as a model for a public defender system that now serves the
state.

Texas is one of few states that allow judges to control the
appointment process for indigent criminal defendants. Most state court
systems use public defenders.

Typically, the systems employ full-time lawyers and support personnel
to handle criminal cases involving defendants who cannot afford to
hired their own attorneys.

Public defender systems serve a number of large Texas cities,
including Laredo, El Paso, Austin and Dallas, but most only handle a
fraction of the case load, and often leave the appointment of counsel
up to the judge.

Dallas County Public Defender Jane Roden said judges in her county
have the option of appointing a public defender or assigning a private
lawyer to represent indigent clients. While most judges do have a
public defender assigned to their courtrooms, her staff still handles
only about 30 percent of all felony cases filed in the county.

In El Paso County, all attorneys -- whatever their practice specialty
- -- are required to handle a certain number of indigent criminal cases
every year or pay an annual $600 "buyout" fee. The county takes in
$150,000-$200,000 annually from the fee, and the money is used to help
fund indigent defense, said public defender William Cox.

Harris County budget director Dick Raycraft said county officials have
looked at the possibility of setting up a public defender system
several times in the last two decades, usually when the cost of
indigent defense was spiraling out of control and threatening to wreck
the county's budget.

The last serious effort was six or seven years ago, Raycraft said, but
judges started controlling costs better and the idea lost steam.

"Whether someone is getting a proper defense is a judicial
determination, and the judges always succeeded in convincing
commissioner's court that defendants were getting proper
representation," Raycraft said. "So it never even got to the point of
a vote."

Harris County spent about $11.6 million last year on indigent defense.
Almost $10 million of that went to the state district courts, which
handle felonies. The remainder was spent in county misdemeanor courts.

Ackerman agrees a public defender system probably would cost more
money, but he argues that it would provide better representation for
indigents.

"We have that obligation to the people we arrest," Ackerman
said.

Harris County judges traditionally have opposed a public defender
system, saying it would become an expensive bureaucracy.

But not all are adamantly against such a system.

State District Judge Jan Krocker said Harris County has a strong
district attorney's office, and a good public defender's office would
help balance that out.

"If we appointed a quality person who hired and trained quality
people, I would support that," Krocker said. "But I don't think that
is a political reality."

While saving taxpayers' money was one of his primary goals in setting
up his system, McSpadden said, he also wanted to demonstrate that a
contract system takes the politics out of the appointment process.

McSpadden said that some judges have used appointments to build
themselves a support team, and to build a base of campaign
contributors.

"That was obvious by the increased payments to appointed attorneys
every single election year," McSpadden said. "It was
embarrassing."

McSpadden said he has taken flak from criminal defense attorneys
because his system dramatically cuts down the number of lawyers
receiving appointments.

One critic, David A. Jones, a criminal defense attorney in private
practice, said the issue is not that lawyers lose out on work, but
that criminal defendants lose out on quality representation.

He acknowledged that McSpadden has contracted with three skilled
attorneys, but questioned how they can handle more than 800 cases on
McSpadden's docket without compromising quality.

Jones said he handles 50-60 criminal cases a year, and that is almost
more than he can manage.

McSpadden, however, noted that the case load for the contract defense
attorneys is smaller than that of the three prosecutors assigned to
his court.

Charles Hinton, one of the three attorneys on contract in McSpadden's
court, said he believes his clients receive good defense despite the
heavy case load.

Hinton says his normal routine on new cases is to read the state's
file, discuss the case with the prosecutor, and talk to his client,
relaying any plea bargain offer the state may have made.

If a client is not comfortable making a decision at his first
appearance, he suggests the case be reset, he said.

On every case that goes to trial, Hinton said, he hires an
investigator.

Hinton bristles at the suggestion that he is pressured by the judge to
move the docket. "I have never felt the slightest pressure from the
court to plead a case," he said.

Jones maintains, though, that the contract system is set up to promote
efficiency, which means saving money above all else.

The backbone of the criminal justice system is the presumption that a
defendant is innocent until proven guilty, Jones said. But when an
indigent defendant is sitting in jail with an appointed attorney, too
often there are too many elements working against achieving justice
for the defendant.

"That presumption of innocence rapidly erodes," Jones said. "It's too
easy to jump from whether a defendant is guilty to what his punishment
ought to be."