Saturday, September 23, 2017

Public defender for appeals would reduce waste, increase efficiency, protect rights

Lots of appeals in Texas' criminal-court system are filed pro se by people who lack representation, and often they make procedural errors that prevent the courts from ever considering the merits of their case. Here's an example.

My podcast partner, Mandy Marzullo at the Texas Defender Service, has been promoting the idea of a capital public defender for direct appeals (see a related report from TDS), and the chairman of the House Corrections Committee filed legislation to create one (see here for an interview with him that includes a discussion of this topic).

But at least capital defendants all have lawyers of some sort, even if they're too often deficient. The guy in this case had no lawyer at all. He filed his appeal in time, but with the wrong bureaucrat, in the wrong court - an error even the lamest practicing attorney wouldn't have made - and so the merits were never considered. But that's not the end of it: inevitably, the guy ends up filing a habeas corpus petition on the back end - meaning courts have to process his claims twice - all because the defendant had no access to legal counsel for an appeal.

If that seems wasteful, the waste serves a self-interested purpose for some actors in the system: A lot of error, ineffective lawyering, unrecognized rights, and wrongful convictions get swept under the rug that way.

States with appellate divisions at statewide public defenders avoid some of these problems, resulting in a more efficient process where the courts' focus is on the underlying issues at stake, not procedural correctness. But in Texas, if an indigent defendant cannot pay for an attorney to file an appeal - and they are not accused of capital murder - the government does not pay for a lawyer to file anything beyond an initial, pro forma appeal, and too often, as in this case defendants don't even get that much help.* There's a penny-wise-and-pound-foolish aspect to this structure, which too often appears as though it were devised to serve the interests of entrepreneur-attorneys over the goal of defending the constitutional rights of defendants.

RELATED: From Raw Story, "Every year millions try to navigate US courts without a lawyer."

*An earlier version of this post incorrectly stated when the government will pay for indigent appeals. Thanks to a commenter for correcting my error.

12 comments:

Jordan said...

The initial appeal (to the regional court of appeals) after a conviction is a matter of right, and indigent defendants ARE entitled to counsel. Whether the defendant knows to ask for one, or is granted one (or whether they’re competent), is another matter; however, every county I’ve practiced in has either a public defender or a list of appointed appellate counsel.

Gritsforbreakfast said...

Granting that, why would someone locked up in TDCJ and clearly indigent be filing pro se appeals? Because whatever right to counsel this guy had on paper, it didn't extend to him in practice.

With a public defender, the defendant's relative sophistication or the judge's mood vis a vis making appointments wouldn't matter. Still seems like a better system.

Anonymous said...

GFB,

The premise of this blog entry appears to be that many criminal defendant's are improperly being denied appellate counsel which should be the basis for a state-wide public defender's office for appeals. I'm not so sure this premise is supported by this case you point to from the 6th COA.

While we will only find out the actual circumstances of this defendant filing an untimely pro se notice of appeal if a future post conviction writ is filed (unless the CCA rejects this COA's reasoning and finds this NOA timely under mailbox rule), it's very likely that this defendant was informed of his right to and given an opportunity to request an appointed appellate lawyer (public defender or from a list) after sentencing but declined to request an appointed lawyer in an effort to retain one. The failure to timely retain an appellate attorney then resulted in an untimely filed notice of appeal.

I recognize this is all speculation, but it's a very commmon occurrence in these types of dismissed appeal cases. If this defendant refused an appointed lawyer after sentencing in an effort to retain one, then a state-wide appellate PD's office wouldn't fix this circumstance.

Anonymous said...

GFB Indigent inmates often file appeals in cases where they entered into a plea bargain which usually -- although not always -- means that the inmate has no right to appeal. But they give it a go anyway because ... why not? Of more concern is that under the Texas Rules of Appellate Procedure the trial judge is supposed to advise inmates concerning their right to appeal. It's Rule 25.2(h). Do they always do it .... well, er, no ... because there's no comeback for a judge who fails to do so, and they're busy etc. A quick fix would be an amendment to the rule that required the court to also give the inmate personally a sheet of paper detailing their rights, including the timelines and how and where to file, and explaining that if they've pleaded they only have a right to appeal if the judge says so, or if there was a written pretrial motion filed and ruled on before trial which the defendant wants to appeal. And attached to that would be a copy of the trial court's certification of the right to appeal (also required under the rules) which a inmate could file if going pro se. Will anyone implement this? Probably not, but perhaps the Texas Fair Defense Project could give it a go.

Darrow said...

The pay in Travis County--and I suspect in other counties--is abominable. That said, I also wonder why we no equivalent to the State Prosecuting Attorney. Court-appointed lawyers are not required to file petitions for discretionary review, and as a general rule do not--they are not paid unless the Court grants review ( at least in Travis County). Granted, most cases will not be PDR-worthy,
but a State Defense Attorney ( what a awful moniker) could step in where needed and also assist retained lawyers when a case was of state-wide importance.

dfisher said...

A State Defense Attorney will only be effective if it is an elected office. Having a Public defenders is a kin to having no attorney in most all cases, or at least based on my experience in dealing with them.

If the Texas defense system is ever going to get honest, then you have to get the judges and county officials out of the position of appointing and setting the pay for defense attorneys. Both of these divisions of the state have major conflicts of interest when it comes to defendants and their representation. County officials are most concerned with the cost of justice especially when it comes to someone charged with a crime. Judges on the other hand campaign on being tough on criminals, so need a high conviction rate to remain in office. Appointing competent defense attorneys and paying them a reasonable fee is contrary to their remaining in office.

Anonymous said...

Scott,
What happened in the Texarkana case is kind of interesting -- and also a bit of an outlier. It seems that Turner's trial attorney told the judge that another attorney would be substituting in as appeal counsel. The trial judge said he would be appointing that new guy in the next couple of days. That didn't happen. Thus, Turner had to try to file his own notice of appeal etc. and unfortunately messed up. (Although, Turner's eventual appellate counsel filed a pretty good and persuasive rejoinder to the jurisdictional issue that the court of appeals didn't buy).

At any rate, the normal procedure in trial courts is for the guy who wants to appeal to file a notice of appeal on the spot. In this case, since he was still technically represented by trial counsel (until the court's late appointment of appellate counsel), trial counsel should have done something. As he did not, I think Turner is entitled to an out-of-time appeal because (1) his trial attorney was ineffective for not filing a notice; or (2) the trial judge erred by not appointing counsel. Or, third, the court of appeals got the notice of appeal rule wrong.

The bigger issue is: I don't know why you think this example proves the need for a statewide appellate public defender. This is, indeed, very similar to your arguments about capital appellate defense, which were likewise not supported by your examples. Actually, this is even worse. A trial court would still have to appoint an attorney to represent the guy -- if he screws up by failing to appoint a private attorney from a list, why would he suddenly be able to appoint someone from a statewide office? A failure to timely file a notice of appeal is STILL gonna result in dismissal, even if there's a statewide office.

The usual practice in courts is to have the guy file his notice immediately. Because it didn't happen here, that's the source of the screw-up.

James S.

Anonymous said...

That's an interesting point about Travis County. It is true that judges aren't required to pay defense attorneys for filing PDRs. However, where I practice, they usually do. In fact, I know a defense attorney who files a PDR in pretty much every case he loses. And he has never not been paid for it.

Which brings me to dfisher's point. I agree that the current system of judges appointing counsel doesn't work well. I respectfully disagree, however, that judges don't want to appoint competent appellate counsel because they're afraid of reversals. I think they are much much more concerned with appearing as a good steward of the county's money. In other words, I think the judge perceives the public as being far more concerned with wasting money on no-good grubby defense lawyers than on something as esoteric (to the public) as an appellate reversal.

James S.

Anonymous said...

"...Turner is entitled to an out-of-time appeal because (1) his trial attorney was ineffective for not filing a notice; or (2) the trial judge erred by not appointing counsel..."

And both the trial lawyer and the Judge were penalized with fines and jail time, no?
Or they were swatted on the head with a rolled-up news paper, right? Or nothing happened to either the trial lawyer or Judge, and having learned that there are no real repercussions for being lazy/ignorant/incompetent, they are doomed to repeat their failures over and over again...

Does anyone even know what "Root Cause Analysis" means? (How about "personal accountability"?)

Anonymous said...

Well, actually, that's an interesting point. IF the trial attorney is found ineffective, he'd probably be barred from being appointed on cases (in most counties) for maybe a year. That's a considerable penalty for a criminal lawyer who (in most cases) depends in large part on appointments.

That's the funny thing about this. The defense attorney is the only one in the courtroom who'll have to pay any penalty for screwing up. A prosecutor can comment on a defendant's silence, or a trial judge can make horrible errors, but there's zero blowback.

Also, let me point out again how rare this is. It almost never happens that a case is dismissed for want of jurisdiction because some failed to file a notice of appeal on time. Sure, they might be trying to appeal something they can't (like a plea bargain), but it's very rare that (after a trial) the defendant (or his counsel) doesn't file a notice of appeal right then and there.

James S.

April Cunningham said...

Why Wouldn't a Innocent Person Plea Bargain? I sure wish my brother would have signed a plea bargain, but he didn't per the advice of his court appointed lawyer.

My brother served a pawn.

The injustice going on in court rooms by hand of the trusted Public Servants is Unreal.

Unfortunately, my brother is a Victim of the Injustice, Justice System.

After being Chraged with Possession of a Controlled Substance my brother was advised to go to trial because his court appointed lawyer insisted that there was no affirmative link between him and the drugs found on the night of the arrest. Before his trial began my brother was offered a 2 year Sentence and right before trial he was offered 5 years deferred sentencing. But, Per the advice of his "Court Appointed Lawyer" my brother did not plea, went to trial and received a LIFE SENTENCE.

My brother who's a 1st time noneviolent offender/drug offender received a LIFE SENTENCE.

Can someone please explain to how a 1st time noneviolent offender/drug offender receive a LIFE SENTENCE in the State of Texas?

Appeal DENIED!

April Cunningham said...

Why Wouldn't a Innocent Person Plea Bargain? I sure wish my brother would have signed a plea bargain, but he didn't per the advice of his court appointed lawyer.

My brother served a pawn.

The injustice going on in court rooms by hand of the trusted Public Servants is Unreal.

Unfortunately, my brother is a Victim of the Injustice, Justice System.

After being Chraged with Possession of a Controlled Substance my brother was advised to go to trial because his court appointed lawyer insisted that there was no affirmative link between him and the drugs found on the night of the arrest. Before his trial began my brother was offered a 2 year Sentence and right before trial he was offered 5 years deferred sentencing. But, Per the advice of his "Court Appointed Lawyer" my brother did not plea, went to trial and received a LIFE SENTENCE.

My brother who's a 1st time noneviolent offender/drug offender received a LIFE SENTENCE.

Can someone please explain to how a 1st time noneviolent offender/drug offender receive a LIFE SENTENCE in the State of Texas?

Appeal DENIED!