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Study confirms money counts in county's courts
Those using appointed lawyers are twice as likely to serve time

Houston Chronicle, Sunday, Oct. 16, 1999

Criminal defendants in Harris County represented by court-appointed attorneys were twice as likely to be sentenced to jail or prison than defendants with money to hire their own lawyers, according to a Chronicle study of a year's court activity.

The study of 30,000 cases also showed that defendants with hired lawyers were more likely to draw probation or to avoid sentencing altogether through acquittal, dismissal of their cases or grand jury no-bill.

"We are supposed to have a system that guarantees justice for all, but that's not what we have," said Terry O'Rourke, a former assistant county attorney now in private practice. "It is a system dedicated to getting convictions."

He labeled the Harris County courts a "conviction machine."

The county's system, under which judges appoint attorneys for indigent defendants, feeds the conviction process, said State Sen. Rodney Ellis. He sponsored legislation earlier this year that would have moved the system in the direction of a public defender's office, as is used in the federal courts and in many states.

Judges and criminal defense attorneys who seek court-appointed work vigorously defend the system.

District Judge Michael McSpadden maintains that the indigent defendants get better representation than those who hire their own attorneys.

"If you are charged with a criminal offense in Harris County, you would be much better off in our court, and many of the other courts, with a court-appointed rather than a retained attorney," McSpadden said.

This opinion has been reinforced, McSpadden said, by jurors in his court, who consistently give higher marks to court-appointed attorneys. (Prospective jurors usually are told during the selection process if a defendant's lawyer is court-appointed.)

The U.S. Supreme Court has ruled that any person charged with a criminal offense has a constitutional right to be represented by an attorney.

In Houston's courts, judges appoint attorneys for indigents, and county taxpayers shoulder the cost. The state of Texas does not provide funding for indigent defense.

Most Harris County district judges appoint lawyers from a large pool of qualified attorneys. McSpadden and a few other judges have set up alternative systems where two or three attorneys under contract represent all of the indigent defendants in their courts.

The problem, Ellis and others said, is that even skilled lawyers dedicated to mounting a vigorous defense for their clients may feel beholden to judges who appoint them.

Ellis said judges often are more concerned with clearing their dockets than with making sure defendants are properly represented. "And the easiest way to clean a docket is to have the defendant enter into a plea bargain and plead guilty," Ellis said.

The legislation he sponsored in this year's session would have put indigent defense under control of county commissioners rather than judges. Under heavy lobbying by local judges, Gov. George W. Bush vetoed the bill.

Critics of the system acknowledge that most court-appointed lawyers are competent and experienced.

"It's not because the quality of lawyers is bad," said Houston attorney Kent Schaffer, president of the Texas Criminal Defense Lawyers Association.
"A lot of times you need more than just a good lawyer."

Schaffer and others mention the extensive investigative team and other support staff available to prosecutors and usually not provided to indigent defendants.

The Chronicle's study involved felony cases filed in 1996 -- the most recent year for which almost all cases have worked through the system to a final outcome. The study included guilty pleas, trials before judges and jury trials.

Almost 55 % of all defendants charged with felony offenses in 1996 were represented by court-appointed attorneys. (The county does not track this percentage, so it was not available for time periods other than the study year. But a sampling of opinion among knowledgeable courthouse sources indicated that a split of about 50-50 has been fairly constant.)

In 1996, 58 % of the defendants with appointed counsel were sentenced to jail or prison, compared with 29 % of defendants represented by private attorneys.

Indigent defendants were granted probation or deferred adjudication -- a form of probation in which the charge is removed from the person's record if probation terms are met -- in only 26 % of the cases. 43 % of defendants who hired their own lawyers got probation.

Because the cases in the study included offenses with a wide range of possible penalties, the Chronicle also compared 1,800 cases involving one specific criminal charge -- first-offense possession of less than one gram of cocaine.

57 % of the cocaine defendants who were represented by appointed counsel and were convicted were sentenced to do time, compared with 25 % of the convicted defendants with hired lawyers. (These figures do not include acquittals, no-bills or dismissals.)

Professor Gerald Treece of the South Texas College of Law said it is widely accepted that people with money are treated better within the criminal justice system than poor defendants, but he was surprised by the disparity revealed in the Chronicle's study of sentencing and conviction patterns.

"Poor people's justice has always been outrageous," he said.

Treece added, however, that the seeming discrimination is not unconstitutional because it is not intentional.

"This isn't invidious or insidious discrimination, this is de facto discrimination," Treece said. "It doesn't make it less harmful, it just makes it less intentionally evil. I also don't think this is an indictment of appointed lawyers. I think it just shows the benefit in our society of having money."

Harris County District Attorney John B. Holmes Jr. said the apparent disparities have less to do with money than with what the accused has done. He suggested that indigence may sometimes result from criminal activity.

"Most people who have chosen to engage in criminal enterprises cannot retain the services of a Mike Ramsey or a Dick DeGuerin," Holmes said, referring to 2 of Houston's top criminal defense lawyers. "Most have never amounted to anything, and so they are not going to have the money to hire the top lawyers to represent them."

Even defendants who can choose their lawyers, however, can't usually choose their judges. And how felony defendants fare in court also varies widely depending upon which of Harris County's 22 criminal district court judges hears their cases.

In District Judge Denise Collins' court, 86 % of all first-time cocaine offenders represented by court-appointed lawyers were sentenced to serve time, while Judge George. H. Godwin sent only 32 % of such defendants to jail or prison.

Collins also handed jail time to more than half the cocaine defendants in her court with hired counsel. The comparable figure in Godwin's court was 5 %.

Collins challenged the notion that probation is always preferable to doing time.

She said, and some defense attorneys confirmed, that many defendants choose a few months in jail over a longer period of closely supervised probation, with the prospect that a probation violation could send them to prison.

"In my court, probation is very difficult and a defendant is extremely likely to be revoked for noncompliance," she wrote in response to the Chronicle's statistical study. "If a defendant is doomed to failure because he or she simply does not have the ability, desire or intent to comply, why open them up to a felony prison sentence (because of probation revocation) if the lawyer can negotiate a misdemeanor or at least a minimal Harris County jail sentence?"

Godwin said his statistics bear out that, "I believe in probation and I believe in redemption." But the study also shows that Godwin was six times more likely in 1996 to incarcerate a defendant with a court-appointed lawyer than one with hired counsel.

University of Houston law professor David Dow said judges are constantly responding to the fact that they must run for election, and allowing cases to stack up in their courtroom makes them easy prey for an opponent.

"That means there are potential criminals who aren't in jail, so they are out there able to do more bad, and that can be blamed on the judge," Dow said. "That's not really fair, but the fact that it isn't fair doesn't mean that it's not effective as a political tactic."

Dow said judges are reluctant to allow change in the current system for at least 2 other reasons, one practical and one self-serving.

Some judges are concerned about what it would cost taxpayers to set up a public defender system, or some alternate system of indigent representation.

"And that is a legitimate reason, although I think those concerns are exaggerated," Dow said.

But judges are also accustomed to controlling every aspect of their courtrooms, and they are not willing to loosen their grip on that power, he said.

Houston attorney Charles Hinton, who represents indigent defendants in McSpadden's court, said he does not believe the variable of hired vs. appointed attorney is the controlling factor in most cases.

Indigent defendants are much more likely to be unemployed and have little or no support from family and friends, factors that make them riskier candidates for probation, he said.

They are unable to post bail and they stay in jail until trial, making it much harder for them to assist in their own defense, he said. More important, they often have criminal backgrounds that will come out if they take the stand in their own defense at trial, he said.

"The appointed attorney represents a different type of defendant than the hired attorney," Hinton said. "It's the type of defendant that is the controlling factor in the success rate rather than the appointed-hired attorney dichotomy."

Attorney Mike Lamson agrees that indigent defendants are often much more willing to plead guilty and accept a reduced jail sentence rather than take a chance of being found guilty at trial and being sent to prison for a longer term.

These defendants are often scared and broke, Lamson said, and their court-appointed attorneys are telling them they need to make a deal and plead guilty or the prosecutor is going to hammer them to the full extent of the law.

"The system is set up to prey on those weaknesses," Lamson said.

Lamson said that appointed attorneys often pressure their clients to plead guilty before they even examine the case for potential weaknesses that could lead to dismissal or acquittal.

"As a hired attorney, I work in the best interest of my client and that often puts me at odds with the judge," Lamson said. "But if an appointed attorney gets at odds with the judge, he doesn't get any more court appointments."

McSpadden sees it differently. Most attorneys who accept appointed cases have a sincere concern for their clients, the judge said, while many retained attorneys see the legal profession as nothing more than a money-making enterprise.

Part of the problem is that indigent cases pay so little that a court-appointed attorney needs a lot of cases to make a living, Dow said. And the only way for attorneys to handle a large number of cases is to plead out as many clients as they can as fast as they can.

Court-appointed attorneys are paid based on a fee schedule established by the county. On a case that does not go to trial, the attorney is paid a maximum daily rate of $130, with a $650 cap. Most cases involving defendants who plea bargain at the first court appearance earn the attorney $130.

During trial, the top daily rate goes up to $270, with a $2,250 maximum. Capital murder cases pay significantly more.

Hired lawyers, by comparison, often can earn $25,000 to $75,000 to defend a felony case, depending on the complexity of the case, and the probability that it will go to trial. Several top criminal defense attorneys acknowledged that fees for complex, high-profile cases can run into the hundreds of thousands of dollars, though none would reveal their fees for specific cases.

Attorneys said they sometimes charge by the hour, but more often negotiate a set fee, regardless of how long it takes to dispose of a case.

Fees are high because a case can take hundreds of hours to prepare, and a criminal attorney can only handle a few large cases at a time.

Plea-bargained cases move faster, particularly with court-appointed lawyers.

Last year, almost 85 % of the cases disposed of in Harris County's felony courts were cleared from the docket when the defendants pleaded guilty, often within days of their arrest.

Criminal defense attorney Dan Gerson -- who does not take court appointments -- said he has seen defendants brought into court at 8 a.m. the day after they are arrested, assigned a court-appointed attorney by 8:45, and ushered back to jail by 9:30 after pleading guilty.

"What's the rush?" Gerson asked. "What does moving a docket have to do with justice?"

"You can't properly defend a person charged with a felony that you just met 45 minutes ago by looking at one file," Gerson said. "It's not right, and it's not effective assistance of counsel."

Gerson said he once watched a group of lawyers sitting in a courtroom waiting for the judge to draw names of attorneys to be appointed to indigent cases.

"One lawyer was sitting there, and when her name was pulled, she stood up and did a little victory dance," Gerson said. "Her victory was getting the appointment.

"What happened in the case was probably secondary."

Last year, more than 27,000 felony cases were filed in the county's 22 felony courts.

District Attorney Holmes said his office has a procedures manual spelling out 14 different factors that prosecutors should consider in determining how a case should be handled, and what kind of deals may be offered to a defendant.

Criminal background plays a major role in that decision, he said.

"One factor that should influence anybody is exactly what kind of person are we dealing with," Holmes said. "Punishment should be individualized."

Schaffer, the defense lawyers association president, said that poor people are undeniably victims of the system, but sees no easy solution to the problem.

To provide the same quality representation to everyone would require spending tax money for defending indigent defendants in amounts equal to that spent by nonindigent defendants.

"How are you ever going to convince the Texas Legislature to do that?" Schaffer asked. Even though it doesn't fund indigent counsel, the state can mandate the system used -- as state Sen. Ellis tried to do with his legislation earlier this year.

Harris County spent $11.6 million last year on attorneys for indigent clients in county and district court, but spent more than $26 million on prosecutors, investigators and support staff for the district attorney's office.

Even the best attorneys cannot overcome evidence that seems stacked heavily against the defendant unless resources are available to hire investigators, expert witnesses, psychologists and forensic specialists.

In large cases, it is often necessary to retain several attorneys, as well as a support staff of paralegals to assist them in their work, Schaffer said. In all but capital murder cases, a court-appointed attorney has no chance of getting a judge to approve payments sufficient to cover those expenses, he said.

That sometimes means a conviction when the outcome might have been different if the defendant had the resources to fight back.

Ellis said Texas is one of only a few states where judges appoint lawyers for poor criminal defendants.

He said judges are reluctant to give up that power, but said he will continue his efforts to establish a different system.

"I just don't think someone's guilt or innocence should be determined by their income," he said.