Revisiting the Problem of the Working Poor

Andrea Marsh of the Texas Fair Defense Project comments:

I think you’re letting the judges who won’t appoint counsel to indigent bail defendants off too easily. These judges are violating the law, whether they straight out deny an application based on bond status (CCP 26.04(m)) or hold applications for counsel while repeatedly resetting cases in order to pressure defendants to hire lawyers (CCP 1.051). 

A defendant who can only afford a $100 fee for a lawyer who will do no more than lend false legitimacy to a guilty plea is indigent in 6th Amendment terms. We get calls from Harris County bail defendants who don’t even have that much money but still can’t get a court-appointed lawyer. Court staff often won’t even give them an application for counsel. I know it’s bad for business (at least that part of the business that depends on low-fee pleas) but I wish there was more outrage from the defense bar on this issue. I know HCCLA made some efforts in this area before, but this post just seems to accept that bad status quo.

Mr. X. adds: “Why do judges threaten to put defendants in jail when they fail to
come to court with an attorney? Its seems silly and more than just a tad illegal.”

In Harris County we’ve seen three major problems with judges’ handling of counsel for indigent defendants on bail:

  • Judges refusing appointed counsel to indigent people on bail;
  • Judges threatening to jail people on bail for not hiring lawyers; and
  • Judges jailing people on bail for not hiring lawyers.

I think that the third problem has, for the moment, been solved. HCCLA propagated a resolution against it a few years back, explaining the law to the judiciary, and I haven’t since heard complaints of judges revoking people’s bonds because they haven’t hired lawyers.

Some otherwise-reasonable judges who know perfectly well that they can’t jail a defendant for not hiring a lawyer, however, still threaten to do so either directly or through proxies (typically their court coordinators).

In another context the Deceptive Trade Practices Act bars “representing that an agreement confers or involves rights, remedies, or obligations which it does not have or involve, or which are prohibited by law,” but I don’t know where it is written that it’s illegal for a judge to threaten to do something that he can’t legally do. That proposition may only be found in the Restatement of the Obvious. The empty threat to jail a defendant for not hiring a lawyer is a lie; nothing justifies a judge lying to the accused.

Here’s how indigent defendants on bail (often the working poor) get forced to hire low-bid lawyers:

  1. D is arrested.
  2. D goes to court.
  3. D is a appointed a lawyer.
  4. D’s family gets together every available penny.
  5. D’s family pays every available penny to the bonding company.
  6. D gets out on bond.
  7. Judge, with D’s lawyer’s acquiescence, takes D’s lawyer off D’s case.
  8. D starts calling lawyers for price quotes.
  9. D can’t afford a lawyer.
  10. D goes to court.
  11. Judge tells D to hire a lawyer or else.
  12. D gets a longer scraper, hits the bottom of the barrel, and finds a breathing human with a law license who’ll take his case for $150 per court appearance.
  13. Judge is perversely pleased with himself, convinced that this is proof that D was not indigent all along.
  14. Judge does the same thing next time.

The law that Andrea mentions in her comment governs the appointment of lawyers to indigent people on bail. Article 26.04(m) says:

In determining whether a defendant is indigent, the court or the courts’ designee may consider the defendant’s income, source of income, assets, property owned, outstanding obligations, necessary expenses, the number and ages of dependents, and spousal income that is available to the defendant. The court or the courts’ designee may not consider whether the defendant has posted or is capable of posting bail, except to the extent that it reflects the defendant’s financial circumstances as measured by the considerations listed in this subsection.

So whether the accused has made bail is only relevant as it reflects on the defendant’s resources, including his wife’s income that is available to him. If momma makes bail, that’s not relevant; if he was indigent when he was in jail, he’s still indigent after momma bails him out.

Section 1.051 of the Code of Criminal Procedure provides in part:

In a county with a population of 250,000 or more, the court or the courts’ designee shall appoint counsel as required by this subsection immediately following the expiration of one working day after the date on which the court or the courts’ designee receives the defendant’s request for appointment of counsel.

There’s no “he made bail” exception for indigent defendants.

“He made bail” is also not grounds for the removal of appointed counsel. So when a judge removes appointed counsel from an indigent accused’s case because the accused made bail, the judge acts outside the law. When a judge threatens to jail a person for not hiring a lawyer, the judge acts outside the law. And when a judge refuses to appoint a lawyer to an indigent person who has made bail, the judge acts outside the law. Because the $150 “lawyer” is not going to do squat for the accused outside the courtroom (and precious little in it), the accused suffers and justice suffers. The $150 lawyer might as well be no lawyer at all. But the docket moves along, the bottom-feeding lawyer makes a living, and the taxpayer is spared the expense of actually providing effective representation to the accused.

What to do about this mess? It’d be nice to see the court-appointed lawyers standing up for their clients and insisting on remaining on their cases even after they made bail. A lawyer’s duty to his client is the same whether the lawyer is court-appointed, pro bono, or richly rewarded. In this instance, the lawyers’ duty is to see to it that their clients have continuous and effectual representation. But I’m afraid their acquiescence is part of the cost of an ad hoc indigent defense system. When lawyers go along with judges’ interference with their representation of their clients, they are on the wrong side of a conflict between the clients’ interests (to have appointed counsel if they are indigent) and the lawyers’ interests (to get more appointments).

If the appointed lawyers aren’t going to act, the judges should do it on their own. I had some hope for the newly-elected district court judges. But I’ve already heard several of them expressing concern for the talisman of their docket sizes, which is not properly their concern. (A notable exception is Judge Ritchie of the 337th, who said in his accession speech that he didn’t care about his docket size; other judges present pointed out that Judge Ritchie had inherited a small docket.) I’m not betting that they’ll upset the financial applecart by keeping appointed lawyers on the cases of indigent people whom they can, by long tradition, get away with depriving of appointed counsel.

So what else is to be done?

Lawyers could volunteer to represent the working poor pro bono, but the private bar does not have an obligation to subsidize the courts’ unlawful deprivation of effective appointed counsel, and shouldn’t encourage it.

The provision of free lawyers to people accused of crimes is not a popular topic with the voters (except perhaps for the negative position). Still, it might make some impression on the judges if we were to start calling them out publicly.

Probably what it’s going to take to fix this, like other aspects of the Harris County criminal justice system, is adult supervision by a U.S. District Court, or the threat thereof.

0 responses to “Revisiting the Problem of the Working Poor”

  1. Why not post:

    Lasciate ogne speranza, voi ch’intrate

    over the courtroom door. Is everything corrupt?

  2. Are you sure Harris County isn’t in Oklahoma? This, or subtle variations of this, is standard practice in just about every county here.

  3. In the State’s witness room in the 263rd there are two boxes hanging on the wall. One bears the label Motion for Sanity and the other Order for Sanity. Why don’t we draft a petition squarely addressing this situation, have as many lawyers as we can find sign it, and disseminate it far and wide through all available media.

  4. Thanks for responding to my comment. You’ve really fleshed out the point I raised, and I agree with most of what you’ve written here. I maybe have a different take than you on one issue though — whether or not judges’ concern about docket size is appropriate, that concern should cut against the practice of resetting defendants’ cases in an attempt to pressure them to hire a lawyer. Judges are clogging their own dockets with these resets, which have their own costs for the county in terms of staff time, etc. We’ve received calls from Harris County defendants whose cases have been reset up to 7 or 8 times just because the defendant couldn’t afford to hire a lawyer.

    I agree that the judges are ultimately responsible for this problem, and that the appointed attorneys who are removed from the case or just told not to do any work once the defendant bonds out are in a difficult position, but it would be great to see local bar associations take a role in taking on what I see as a collective action problem — if a large cohort of the attorneys who accept appointments refuse to walk away from their clients then it will be difficult for the judges to cut that cohort out of the appointment system. I’d support an effort like that in any way that I can from here in Austin.

    And 1 more CCP provision I forgot to drop last time: Art. 26.04(p) provides that “[a] defendant who is determined by the court to be indigent is presumed to remain indigent for the remainder of the proceedings in the case unless a material change in the defendant’s financial circumstance occurs.” It then goes on to say that if there is a material change that certain individuals can move for reconsideration of the determination. The motions and findings necessary to rebut this presumption have not been present in any of the cases my organization has seen from Harris County.

  5. This post reminded me of how much I enjoyed Gideon’s Trumpet, not just because its a great story, but also because it really illustrates the point of making sure every criminal defendant has legal representation.

  6. So whether the accused has made bail is only relevant as it reflects on the defendant’s resources, including his wife’s income that is available to him. If momma makes bail, that’s not relevant; if he was indigent when he was in jail, he’s still indigent after momma bails him out.

    Wouldn’t that apply equally to Judge Sharon Keller and her daddy? I know, I know, apples and oranges, but if you’re going to analogize from a UDTP/FTCA perspective that has nothing to do with the issue…

    And anyway, why SHOULD Judge Keller be penalized for having a rich daddy? It’s not as though she killed anyone.

    • I hope that Judge Keller will someday find herself in a situation in which an indigent person would be entitled to free counsel. When that day comes, I hope that her daddy’s money won’t be available to her, that her own copious money will have run out, and that she’ll be appointed the sort of representation that she has approved for other indigent Texans.

      Is that wrong of me?

  7. That’s between you and God, Mark.

    Of course, Judge Keller’s problem, ultimately, is between her and God, since Mark Richard isn’t around to complain. The Texas Disciplinary Commission is only a way station on the way to that decision.

  8. I have an even more clear cut view on this issue, a person’s resources should not figure into the counsel appointment calculation at all. It should be strictly the D’s choice about whether they wish to go with appointed counsel or retain their own. No means test at all should be a;llowed.

  9. Some CAs and DAs argue that the defendant’s release from jail, by itself, is a material change for purposes of 26.04(p) because the defendant can now go out and get a job. I’m not saying I’ve signed up for that view. However, our criminal court at law judges are not as likely to bust an appointment just because the client gets out of jail as the judges in Harris County (or so I gather).

    • They may argue that and, as Andrea points out, they may request a hearing on the issue. But interfering with the lawyer-client relationship by “busting an appointment” is, absent such a hearing, unlawful and grievable.

  10. Hello Mark,

    Great minds run in the same direction.

    I recently guest lectured in the Constitutional Law course which my wife teaches. I pointed the students to your very interesting posts about the issues involved with counsel for the indigent.

    Keep up the good work!

    Jeff Deutsch

  11. Hello Mark,

    Also, I used to be a debt collector. That work is strictly governed by the Federal Fair Debt Collection Practices Act (FDCPA). Among other things it prohibits:

    The representation or implication that nonpayment of any debt will result in the arrest or imprisonment of any person or the seizure, garnishment, attachment, or sale of any property or wages of any person unless such action is lawful and the debt collector or creditor intends to take such action.


    The threat to take any action that cannot legally be taken or that is not intended to be taken.

    I might add that the FDCPA has teeth. Both the individual collector and the collection agency can be sued either for actual damages, if provable, or for statutory damages of up to $1,000 per violation (not per action; for example the same phone conversation can involve multiple violations) plus reasonable attorney’s fees.

    Am I to understand that debt collectors are held to much higher ethical standards than some judges?


    Jeff Deutsch

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