The Cost of Poor Advice

By Viveca Novak/Washington

Here are just a couple of tales from the rough frontier of Texas justice: a teenager in Bexar County charged with drug crimes last September sat in jail for a month before his first scheduled meeting with a court-appointed lawyer. That attorney never showed up; and by the time the boy met the next one, he'd been behind bars more than three months. Andrew Cantu of Abilene was executed in February even though his third court-assigned appellate lawyer--the first two withdrew--didn't know how to find Cantu in prison, didn't do any investigation of the case and was unaware of the deadline for filing his final federal appeal.

Texas' reputation as a state without tender mercies for the accused is nowhere more apparent than in how it deals with defendants too poor to hire lawyers. They are provided with appointed counsel, but the competency of these lawyers, the rates they are paid and the speed with which they are assigned have shocked even impartial criminal-justice experts.

Now Governor George W. Bush may face some flak for claiming to be a "compassionate conservative," having just vetoed a bill intended to improve the system modestly. The bill's requirement that a defendant be given a lawyer within 20 days or else be released was "a danger to public safety," Bush said, though in most of the country indigent defendants are assigned lawyers within 72 hours. Bush had some political cover because even a few of the bill's supporters pulled back with concerns about giving county commissioners too much power to select the lawyers. But the front-running G.O.P. presidential candidate could still find himself embroiled in a debate about the sorry state of indigent defense, not just in Texas but in the rest of the U.S. as well. For one thing, the Supreme Court will consider later this year whether to tighten the standard for legal competency, after hearing a case involving bungled defense work on behalf of a convicted Virginia murderer with an appointed lawyer.

In 1997 nearly 10 million Americans were arrested, up more than 8% from four years earlier. Most of them need publicly provided attorneys. But what if their lawyers sleep through witness testimony, show up drunk for trial or miss crucial filing deadlines? What if they can't afford forensics tests or, as in the case of Roberto Miranda's lawyer in Nevada, fail to investigate their cases aggressively? Miranda was freed in 1996 from death row after 14 years when a judge found that a key witness had not been interviewed.

"Lack of funds is the first and foremost reason we have the situation we do," says Stephen Bright, who heads Atlanta's Southern Center for Human Rights. State public defenders and court-appointed lawyers typically make less than other lawyers--sometimes less than the minimum wage. Alabama's legislature last year voted an increase in the $1,000 top fee for lawyers handling death-penalty cases only to have the Governor veto it. In New York fees are actually shrinking; the state's chief judge recently reduced fees for lawyers representing death-penalty cases.

As bad as things are elsewhere, Texas is at the bottom of the heap. There's no state oversight or funding for a system that relies on individual judges to appoint counsel and decide rates. The judges, says retired appellate judge Charles Baird, often care more about finishing a case than giving a defendant an aggressive advocate. The miserable pay ensures that most lawyers do little for their clients. In Cameron County attorneys earn a maximum of $100 per misdemeanor case and $350 per felony regardless of the effort required. Lawyers who get their clients to plead guilty make money on the deal and also please the judges, to whom they sometimes give campaign contributions.

It is in death-penalty cases that inept lawyering is most agonizing. Since 1976, when capital punishment was restored, 77 people have been released from death row nationwide for being wrongly convicted, about 1 in 7. In six of those 77 cases, judges cited faulty representation as the main grounds for release, but it played a role in most of the cases. In the Lone Star State the appeals court has upheld death sentences in at least three cases in which defense lawyers actually slept through parts of the trials. Judges are seldom sympathetic to claims of incompetency.

Take the case of convicted double murderer Ricky Eugene Kerr. His final state appeal was handled by an assigned lawyer who had never worked on a capital case, didn't understand the appeals process and was at times too ill to work. Texas judges refused to appoint a new lawyer or stay the execution. With two days to spare, a federal judge stepped in, calling the state's actions "a cynical and reprehensible attempt to expedite execution at the expense of all semblance of fairness and integrity."

It's too soon to call Kerr lucky. His case is back in state court, where the odds rarely seem to favor the indigent defendant.