April 14, 2014
The proposal, reported in the Austin American-Statesman on April 12, to create a new system for the appointment of attorneys who represent poor criminal defendants in Travis County may have merit if there is sufficient accountability provided in the new system, a factor largely missing from the current court-appointed process.
The idea is to have a joint venture between the Austin Bar Association and the Austin Criminal Defense Lawyers Association that would handle most aspects of appointing attorneys. This proposal comes a little more than 50 years after the U.S Supreme Court ruled that poor defendants have a constitutional right to have an appointed attorney if they can’t afford to hire one.
Perhaps of equal importance is the adoption by the State Bar of Texas in 2011 of “Performance Guidelines for Non-Capital Criminal Defense Representation.” These Guidelines can be used as a checklist for attorneys, as suggested in its introduction:
The Guidelines are intended to alert defense counsel to courses of action that may be necessary, advisable, or appropriate, and thereby to assist counsel in deciding upon the particular actions that must be taken in each case to provide the client the best representation possible. The Guidelines also are intended to provide a measure by which the performance of individual attorneys may be evaluated, and to assist in training and supervising attorneys.
The Supreme Court has also found that the constitutional right to an attorney also means that the attorney be competent in his or her representation. Otherwise, the right to counsel is meaningless. To fulfill this requirement of providing competent representation, the Guidelines can also be used in several specific ways, at little cost, to hold appointed attorneys accountable for their representation of indigent defendants, who frequently complain about the inadequacy of the representation they are afforded:
- All attorneys who want to receive appointments should be required to understand the Guidelines and agree to follow them, when applicable, in their representation. (Not all provisions are applicable. For instance, the section on examining trials applies to very few cases.)
- Defendants should be provided a copy of the Guidelines at the inception of representation so that they know what they should expect from their court-appointed attorney.
- Court-appointed attorneys should be required to discuss the Guidelines with each client to explain which items in the representation process don’t apply to the case and which will be followed, and the reasons for those differences.
- Attorney fees in appointed cases could be determined by how well the Guidelines have been followed, using a check-list approved by whoever makes the appointments, and attested to by both the attorney and the defendant when the case is concluded.
Providing a mentoring system to new attorneys for a reasonable period — say one or two years — would also be an important adjunct to using the Guidelines to direct and evaluate the performance of appointed attorneys.
It is time to assure that the scales of justice are always tipped toward justice, not toward convenience and the mostly unaccountable discretion of attorneys who take such appointments.