What most folks wanted to talk about though was my opinion of a dramatically spun New York Times article about a fee dispute between two exonerees and attorneys who represented them in civil litigation, most prominently West Texas trial lawyer Kevin Glasheen and Jeff Blackburn at the Innocence Project of Texas, a group for whom I'm lobbying this session. I've written up my personal views on the merits or lack thereof of the legal case here, which differ substantially from the portrayal in the Times and haven't changed since that was written. Leaving those differences in perspective aside, I wanted to correct one bald factual error at the end of the story. John Schwartz (son of Texas liberal icon "Babe" Schwartz, I'm told), wrote that:
State Representative Rafael Anchia, who sponsored the Texas measure that increased the payments to exonerated prisoners, introduced a new bill in the Legislature’s current session that would expressly prohibit the kind of contract that Mr. Glasheen is defending and allow only a simple hourly fee for helping to file the forms. “I’m closing the door on that,” Mr. Anchia said.Anchia's bill in fact would not "expressly prohibit the kind of contract that Mr. Glasheen is defending." That's just an inaccurate, false portrayal of the legislation as it currently stands. According to an email from one of Sen. Rodney Ellis' staff, "The legislation (as it pertains to fees) only applies to 'preparing, filing, or curing' applications for state compensation under 103.051 of the Civil Practice and Remedies Code. It is not the intent of the legislation to apply to 1983 actions or mandamus actions if the Comptroller rejects someone's application, as Anchia said on the floor of the House."
But the fees in dispute with Mr. Glasheen are precisely contracts related to Sec. 1983 federal civil rights lawsuits filed on behalf of exonerees after they'd chosen to reject the then-lower levels of compensation from the state. Despite Anchia's sometimes inexplicable statements to the media, those types of contracts will not be affected by his bill, nor should they be.
To see how banning such contracts might play out, consider the case of Anthony Graves, whose compensation was rejected by the Comptroller because his case was overturned on direct appeal instead of through an habeas corpus writ on actual innocence grounds. For him, pursuing compensation isn't as easy as filing a one page form. In the end he may need attorneys willing to spend years on civil rights litigation suing Burleson County on his behalf. If somewhere in the middle of all that, we get a new Governor who pardons Graves and he applies for compensation, should his attorneys not be paid?
The problem here is that if attorneys can't take a contingency fee on such cases, if they can only charge an hourly rate, then they can only afford to take clients who can afford to pay them by the hour. Poor people - like, say, somebody who spent the last two decades in prison based on a false accusation - couldn't get representation in the tough cases. Lawyers work for fees and I didn't invent the system of civil justice, nor did Glasheen or Blackburn. That's just how it works, and in context, having been in the thick of things at the time, IMO the attorneys in the case deceived no one and did nothing wrong.