DOW: AT LAST, A BETTER WAY TO APPOINT LAWYERS FOR INDIGENT

Criminal defendants who cannot afford a lawyer have a constitutional right
to have the state appoint one to represent them.

Many states satisfy this constitutional requirement by using public defender
systems, a statewide system of lawyers who are paid a modest wage by the
state and do nothing other than represent poor defendants. Other states have
an agency that appoints private lawyers to represent indigent defendants,
paying them on a per case basis.

Texas has no system at all. Instead, most counties, including Harris County,
depend on the judge who is presiding over the trial of an indigent defendant
to appoint a lawyer to represent that defendant.

The Legislature has passed a bill that would modernize the Texas system by
charging the county commissioners court with the responsibility for
appointing lawyers for indigent defendants. The bill awaits Gov. George W.
Bush's signature, having passed both the Texas House and Senate unanimously,
illustrating unusually broad support. The bill is supported by Republicans
and Democrats, by liberals and conservatives, even by prosecutors and
defenders. There is, however, one group that opposes it: the trial judges
who currently appoint the lawyers.

It is not clear why the trial-court judges oppose this bill, other than that
they want to retain complete control over their courtrooms; but there are
three compelling reasons why Gov. Bush should sign the bill anyway:

u First, regardless of what the trial-court judges say, many lawyers
appointed to represent indigent defendants in the present system are barely
competent. For example, defendants who are represented by appointed lawyers
are substantially more likely to be convicted than are defendants able to
hire their own lawyers; in addition, defendants represented by appointed
counsel are substantially more likely to receive a jail term (as
distinguished from probation) than defendants who hire private counsel.

u Second, of the 22 criminal-court district judges in Harris County, 19 were
former prosecutors in the Harris County district attorney's office. Former
prosecutors often make very good judges, but if you were an indigent
defendant who needed a lawyer, you might prefer that someone other than a
former prosecutor be the one who appointed a lawyer to represent you.

u Third, even the highly qualified lawyers who are appointed to represent
indigent defendants have conflicting incentives. On one hand, their ethical
obligation is to represent their client zealously; on the other hand, the
trial-court judge who appoints them does not want them to litigate
aggressively. There are two reasons why this is so. First, the trial-court
judge does not want to pay a lawyer enough to mount an unyielding defense.
Any Harris County judge who paid a lawyer enough to scrutinize the police
the way O.J. Simpson's lawyers did would never be re-elected. Second,
trial-court judges do not like their dockets to be backlogged, which means
that a lawyer who does not want to offend the judge who has appointed him
had better try the case quickly, or he will not receive another appointment.
In short, under the present system, even the most qualified lawyers face a
conflict between doing their job well, on the one hand, and getting paid, on
the other.

Finally, it is worth noting that the cost to taxpayers is greater when
defendants have incompetent (or barely competent) trial lawyers because it
creates a bona-fide issue for those defendants on appeal. Removing the
responsibility of appointment from the hands of the judges who will be
presiding over the trials might not solve all these problems at once, but it
would represent a laudable first step. Gov. Bush ought to sign the bill and
thereby help ensure that even the poor in Texas receive justice.