 "Photo: Mike Kane")
Travis County received higher grades than other Texas counties in its indigent defense, but problems still exist within the system - meaning indigents often don't get the quality defense they deserve, some lawyers say.
The Fair Defense Act, passed by the state Legislature in 2001, attempts to provide impoverished Texans with equal defense in the justice system.
A recent report by the Equal Justice Center and the Texas Defender Service compared the statutes and local administrative practices used throughout Texas to appoint counsel for indigent defendants who are charged with capital crimes.
Travis County received "C's" for all the categories, excepting an "A" for its attorney selection method.
Travis rotates attorneys among clients and ensures that each lawyer is limited to one case per rotation, as set forth by the act. This avoids favoritism and protects the attorney's work load, said Andrea Keilen, an attorney from the Texas Defender Service. Each lawyer also has to be approved by a majority of judges.
Travis County Judge Sam Biscoe said Travis County's plan was used as a model for the act two years ago, because "it was doing such a good job."
The act's author, Sen. Rodney Ellis, D-Houston, said the report revealed that most Texas counties must improve their standards if they want to pursue the death penalty.
The report criticized Travis County's low attorney compensation rate, which starts at $50 per hour and must also pass judicial approval. The plan does not provide a way for attorneys to appeal that rate, the report said.
Travis County Criminal District Court Judge Bob Perkins said the statute already provides a way for an attorney to appeal to the administrative judge.
"But no attorney wants to go over his judge's head," said Keith Hampton, chairman of the Texas Criminal Defense Law-yers Association.
As for the low pay, Perkins said, "[Indigent defense attorneys] are never going to get paid what they deserve."
District Judge John Dietz remembered his salary from his attorney days working indigent defense.
"It was horrible," he said.
But Dietz added that as a government official, he is obligated to be frugal with taxpayers' money when paying attorneys.
UT Law lecturer Kenneth Houp said the problem is we're asking taxpayers for more money to defend capital crimes - something that does not rate at the top of their priorities.
It is unrealistic to even compare Texas' rates to the federal rate of $125 per hour after "we just got through a legislative session run on no new taxes even though we were in a huge budget deficit," Perkins said.
What keeps many of the best lawyers in private practice is the uncertainty of when and what one will get paid, Hampton said.
"Not so much because of the low pay. You understand that, you know that's going on," he said.
Hampton said if the case appears more complex, the judge will postpone deciding the rate.
"So you do all this work and then the case gets dismissed," Hampton said. "And then the judge says, 'Sorry. I'll only pay for your dismissal.' "
That removes any incentive to get a case dismissed, Hampton said.
David Frank, president of the Austin Criminal Defense Lawyers Association, said Travis recently implemented a system of judicial review based on experience. Attorneys on the most basic level only defend misdemeanors. Only the best and most experienced attorneys rank on the capital list.
"Travis County is still wrestling with what kind of criteria to use," Frank said.
The statute requires a ranking system but does not specify how attorneys should be ranked.
Once a year, judges will review attorneys and can remove, demote or promote them.
Hampton called it a "clear conflict of interest," because the judges decide the case while grading an attorney's defense.
Frank said the system has no oversight, and judges do not have to justify their decisions. He pointed to recent occurrences in Dallas County where one lawyer was removed after seven straight acquittals for first-degree felonies.
The system was still a work in progress, he said.
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