Indigent Defense 2012 & Beyond Texas Association of Counties 2012 County Court Assistants Training Conference February 23, 2012 San Marcos James Bethke, Executive Director Terri Tuttle, Executive Assistant/Project Manager Texas Indigent Defense Commission
The right to counsel is required by the U.S. Constitution and Texas law. It is NOT discretionary.
Sixth Amendment 1791
Powell v. Alabama 1932
Betts v. Brady 1942
"If an obscure Florida convict named Clarence Earl Gideon had not sat down in prison with a pencil and paper to write a letter to the Supreme Court; and if the Supreme Court had not taken the trouble to look at the merits in that one crude petition among all the bundles of mail it must receive every day, the vast machinery of American law would have gone on functioning undisturbed. But Gideon did write that letter; the court did look into his case; he was re-tried with the help of competent defense counsel; found not guilty and released from prison after two years of punishment for a crime he did not commit. And the whole course of legal history has been changed." Robert F. Kennedy
Gideon v. Wainwright 1963
Gideon vs. Wainwright In our adversary system of criminal justice…. With government “quite properly” spending “vast sums of money to establish machinery to try defendants accused of crime”.....you need ….. “procedural and substantive safeguard designed to assure fair trials before impartial tribunals in which defendants stands equal before the law” “This noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him.” Gideon v. Wainwright, 373 US 335 (1963)
In Re Gault 1967
First Comprehensive Statewide • Task Force • Reporting Requirements • Funding / Monitoring
my running story T A C
Screening & Verification Overview Private counsel retained magistration Appoint counsel No Yes Is counsel requested? Does person qualify for counsel? Pre-Trial assists w/& verifies financial affidavit magistration Private counsel retained Yes Yes No Pre-Trial Services used before magistration? Arrest Does person qualify for counsel? Appoint counsel Yes Magistrate assists w/& verifies financial affidavit Yes No Is counsel requested? Private counsel retained magistration No No Private counsel retained
ART. 26.05, CCP Compensation of Counsel Appointed
Reasonable • Schedule of Fees • Necessary Overhead
Common Findings • D not given an opportunity to request counsel at art 15.17 hearing • No record of whether D the requested counsel at art 15.17 hearing • Requests for counsel not transmitted to appointing authority within 24 hours of arrest • Appointments of counsel are not timely
Common Findings, cont. • Indigence denied if the D posted bond • Improper waivers of counsel • The distribution of attorney appointments is outside of TIDC presumed thresholds (the top 10% of recipient attorneys receive no more than 3x their representative share of appointments) • Attorney CLE hours not tracked
Art. 15.17(e), CCP (e) . . . , a record shall be made of: (1) the magistrate informingthe person of the person's right to request appointment of counsel; (2) the magistrate asking the person whether the person wants to request appointment of counsel; and (3) whether the person requested appointment of counsel.
Article 1.051(f) of the Code of Criminal Procedure (f) A defendant may voluntarily and intelligently waive in writing the right to counsel. A waiver obtained in violation of Subsection (f-1) or (f-2) is presumed invalid.
Record Keeping Pointer Centrally Store: • Magistrate form • Requests for counsel after magistration • Appointments of counsel • Denials of indigence • Waivers of counsel • Records of arrests • Records of bonding • Attorney vouchers
Williamson County Case Filed in 2006 / Argued before the Supreme Court of Texas 11/ 6/11. Petitioners Allege: ‘Systematic denial in county courts at law of right to counsel They were discouraged from requesting counsel They were informed that they would not qualify for appointed counsel if their families were able to raise bond money. The county ‘provide[s] inaccurate information about the ability to qualify for counsel and encourage[s] accused persons to waive their right to counsel without adequate information.’