Indigent misdemeanants denied lawyers in Williamson County may get relief

Austin attorney Andrea Marsh, Director of the Texas Fair Defense Project (TFDP) has filed a class action lawsuit against three judges in Williamson County and the county itself for failing to provide appointed counsel to indigent misdemeanor defendants.

Nationally, about one in three misdemeanor defendants are represented by appointed counsel; in Williamson County, that figure is 9%, reports Austin's KUT radio in a profile of one of three lead plaintiffs, Sylvia Marrie Peterson. See also the Austin Statesman's coverage ("Class action lawsuit filed against judges, Williamson County," June 13). The 35-page original complaint is online here. It alleges, in part, that:

Williamson County and the judges who preside over its county courts at law routinely fail to inform persons accused of crime of their right to counsel, provide inaccurate and misleading information about the right to appointed counsel in order to discourage requests for counsel, encourage defendants to waive their right to counsel and speak directly to prosecutors, threaten defendants who assert the right to counsel, and delay or deny appointment of counsel to individuals who request an attorney and are eligible for court-appointed counsel under Texas and federal law.

Since the passage of Texas' Fair Defense Act in 2001, counties statewide witnessed rising indigent defense costs. Those like Dallas that opted for public defender systems have faced much lower rates of cost increase than counties paying private attorneys on a "wheel" system. But for the most part after the Fair Defense Act, all counties increased their percentage of cases using court-appointed attorneys, giving many more defendants access to counsel than before. I don't know the statewide figure (somebody tell me if you do), but I'll guarantee it's a lot higher than 9%. See this analysis on the Fair Defense Project's website comparing what happens in Williamson County to what's supposed to happen under state law.

Some of the allegations in the Williamson County case sound like testimony leading up to passage of that original Texas Fair Defense Act - basically prosecutors and judges bullying defendants into taking a plea bargain without appointed counsel with a motive of reducing costs. KUT quoted a county official citing two reasons judges would be skimpy about appointing counsel for indigent defendants - judges who the public thought were spending too much taxpayer money on attorneys for criminals might be challenged over it in the next election, he sketchily predicted (I don't believe that), and local lawyers wouldn't be happy because it would be "taking money out of their mouths" (I DEFINITELY believe that.)

Leaving aside for a moment the frightful symbolism of attorneys with money coming out of their mouths, neither of those are good reasons for not appointing counsel. If Williamson County wants to arrest and prosecute so many people, they must pay for the full entre', not just drinks and dessert. On a countywide scale, paying for attorneys for every arrested person who can't afford one costs big bucks, but so what? It's a fundamental constitutional right to have an attorney. Welcome to America.

“Williamson County judges and other county employees pressure defendants to talk to prosecutors without giving them accurate information about their right to a defense attorney,” said Andrea Marsh in a TFDP press release yesterday. “No one should be convicted of a crime they didn’t commit or receive a longer sentence because they didn’t understand their right to a lawyer or were denied an attorney even though they were too poor to hire one.”

“We’ve seen hundreds of misdemeanor defendants in Williamson County unwittingly stripped of their right to a lawyer,” said Dominic Gonzales of the Texas Criminal Justice Coalition (TCJC), an organization that has been engaged in court monitoring in Williamson County for over a year. “The Williamson county courts completely fail to meet public expectations of how a fair and impartial court system should work.”

In the interest of full disclosure, Andrea Marsh is a friend and I office at the Texas Criminal Justice Coalition where Dominic Gonzales works, though I don't work on this project nor have any personal involvement with the lawsuit.

The irony here is that failing to appoint counsel - or even better, to create a public defender to represent indigent defendants - doesn't really save money. The cliche that comes to mind is "penny wise and pound foolish." Defendants without counsel sit out their time awaiting trial at the taxpayers expense, often getting plea deals only when their time served reaches what they'd likely receive as a max punishment. Jail space statewide is tight, and no one benefits when taxpayers must finance housing, food and medical care for defendants who don't really endanger public safety.

That's why Hidalgo County created a misdemeanor-level PD office last fall - to move cases through the system faster and process everyone who's eligible OUT of the county jail. Promptly appointing counsel for indigent defendants both protects their rigths and saves taxpayers' money overall - a two-fer, if counties will take it. To judge by this lawsuit, a few still need to be prodded.

Good luck to Andrea, Dominic and the lead defendants in this case.