Tuesday, March 01, 2011

Blackburn: 'We have created a permanent class of underperformers in criminal defense cases'

The State Bar's Standing Committee on Legal Services to Poor in Criminal Matters has just released a new set of Performance Guidelines for Non-Capital Criminal Defense Representation (pdf), which are particularly focused on heretofore largely absent standards for indigent defense. My boss from the Innocence Project of Texas, Jeff Blackburn, chaired the committee that developed these new performance standards, and yesterday I asked him about them as a test-run for Grits' first-ever podcast (around 9 minutes). As you can tell from the quote in the title of this post, Jeff doesn't mince words when criticizing criminal defense lawyers who don't meet these standards, which he says "any jackwagon lawyer ought to be doing":

I've been meaning for a while now to develop podcasting capacity, and thanks to Grits contributors for financing the equipment, software, etc.. I'm still working out the kinks and don't know how often I'll be doing such interviews - I've got a face made for radio and a voice made for print, sad to say. But in this case I figured it'd be easier to ask Jeff to describe the guidelines than read them myself, so here you go. :)

RELATED: There's a summit on indigent defense going on at the capitol today sponsored by the Task Force on Indigent Defense, which you can view via livestream here.

MORE (3/2): A helpful reader had this interview transcribed, and I've posted the text on Google Documents here.


Robert Langham said...

I'm just happy to have a new word to apply to lawyers. "Satchel-assed sons of bitches" was getting old.

Audrey said...

That was an excellant podcast. Thank you Scott. I have just shared it with my habeas attorney, we are in the midst of filing a habeas on this very issue, will likely be filed next week. What is going on in this state regarding defense of indigents (which I eventually became...because paying attorney fees bankrupted me and my family)is an atrosity...I know it is a common theme in your blog. Have these attorneys no pride in their work, or at the very least, a conscience?

Anonymous said...

My son's defense attorney set a price for his case. We paid it and then I was told "This is the type of case I normally get paid 20,000 dollars to represent." Then he added another 2 grand to what we had already paid. I knew then we were in trouble, and we were, but we had no more money to give him. We did not pay 20 thousand either. Poor and the middle working clas get the worst representation a lot of the time.

Prison Doc said...

Why don't the courts or the bar itself certify who's capable to represent clients, like we in medicine have Board Certification and the need to obtain Hospital Privileges? It's always seemed silly to me to allow all of these "ineffective counsel" appeals.

Anonymous said...

Gosh Doc, I think they do...it's called a law license, but like indigent care, so called "professionals" do what they can get away with when they are not highly motivated or ethical.

Anonymous said...

Good point, look at how all those ass clowns medical professionals “want-to-be’s” who practice at TDCJ treat their patients. In Texas if a vet treated a cow like the med staff in TDCJ treat humans they would be hung.

Look when the goal is to incarcerate 25% of your population this is the crap you get from those who call themselves professionals. More prisons less jobs and education opportunity’s. One day enough people will have been effected by this war on Texas citizens and this foolishness by our lawmakers will stop.

Anonymous said...

Scott, I wouldn't say that about your face and voice, but the first time I saw the guy that does Lake Woebegone, I understood why it was a radio program.

Charles in Tulia

Anonymous said...

There is board certification by the Texas Board of Legal Specialization for lawyers in the area of Criminal Law and, now, Criminal Appeals. Many of those lawyers don't take court appointments, however.

George said...

Scott, this podcast was awesome! Jeff Blackburn was the perfect first guest.

I like what Jeff has to say.

I have watched in horror as court appointed lawyers in Williamson County wait to visit the defendant on the day of the first hearing at the court house. The same day the defendant will plea out. It is even more horrifying these same court appointed lawyers are former Williamson County prosecutors. These same court appointed lawyers do not seem to bother with discussing the facts of the case with their client, only the da's office. They share a common goal -- plea.

I understand court appointed lawyers arent paid a hell of a lot, but if you are a WilCo court appointed lawyer who sets low goals, you can pick up an easy $500 per case for basically doing nothing. If you have more than one court appointed case, arrange for the hearings to be held on the same day, maybe the afternoon session. You can wheel and deal with each client while waiting. 4 wham bam thank you mam cases = $2,000 for an afternoon of hanging out with your former coworkers, joking and laughing it up.

I've witnessed it. Too many times.

Anonymous said...

Just look at what the so-called "professionals" in TYC did for that agency. So much for education...at at high level. Better off with ged folks with some common sense. Professionals have only hurt criminal justice in Texas, with their above all superior, but real inferior attitudes and behaviors.

Anonymous said...

Lawyers and a conscious used in the same sentence? Defense lawyers are all the same. Some just get paid better than others. There ultimate goal is money, not about a client.

Anonymous said...

Criminal defense law, unlike medicine, has virtually no standards and what standards there are do not usually get enforced. I am a criminal defense attorney, and sadly if you choose to be a low-life, lazy, liar who rips people off --- the only thing stopping you is you.

This is not by accident. The Judiciary will not set standards (or rule in defendant's favor very often in criminal appeals or civil suits) because the whole system is predicated on getting it done fast and cheap. Standards would just get in the way --after all if you don't have standards, then how can anyone claim they received ineffective assistance? The judges repeatedly rule that "representation is presumed to be effective" and since there are usually no standards to cite there is no way to "prove" your attorney was ineffective. As I once told a senior judge, I could show up to court drunk, in my boxers, and lay down in the well in front of the jury and start snoring ---- and the appellate court would call it a "trial tactic" and tell my client to F-off.

Medicine ain't perfect, but as a general rule there are often very explicit standards of care, and if you don't follow them you can end up paying - a lot. If you go into an ER complaining about severe chest pains they will at least listen to your heart and take your pulse. I've seen attorneys plead clients they've never met, i.e. "You, what's your name, this is what's going to happen when the judge calls your name...." That is the only way the courts get XX thousand cases a year disposed of, and judges do not and will not 'rock the sytem.'

Similarly, the 'private hire' bar has many very good and hardworking attorneys (often the two things are related) but it simply doesn't pay to point out problems with other attorneys, make formal complaints, or even just suggest rule changes, etc. that might help the situation.

And if you are a PD (as I am), what can you do? I could quit and refuse to participate in the whole 'sham', but that would not fix a thing and I would be quickly/easily replaced with a desperate/naive new attorney. But lord know there is little you can do from 'within' the system.

PD work (in my state) is often like being a doctor on MASH. You help who you can when you can, but it is 'meatball surgery' and you let some people die on the table in order to try and save others. And I should hasten to add that we have a very good PD system, relatively speaking (thank you Texas, for giving our legislators something to say when we testify about how bad things are. "Well, we're much better off than Texas...")

For years case loads have been increasing, and just as importantly criminal defense has gotten much more complicated (My grandfather never had to deal with DNA, breathilyzers, NCIC, destruction of video, etc.) even as the consequences of convictions have become vastly more draconian. This is a long term whole we've (the entire legal system) dug by pretending too long to be able to do too much with too little. I just don't see much hope in systemically, you just learn to keep your head down and help the individuals you can.

Thomas R. Griffith said...

Hey tick tock 4:43 if that's your real name? When you get a chance to return to GFB to see if anyone replied, consider touching on this.

Does your state of confusion allow Divorce & Will specialist to dabble in criminal defense (hold themselves out as CDL’s, allow others to refer them as CDL’s, consult with felony clients / families, quote and receive down payments, file pre-trial motions & represent in jury trials) without any prior felony jury trial experience? Texas does. If your state is in the USA, which one is it? Thanks.

Jeff Parker said...

New link (the old one no longer works):