Cheapskate Justice May Come Back to Bite Collin County

"The right of one charged with [a] crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours"

-Gideon v. Wainwright, 1963

Here's an example of a growing county that would really benefit from establishing a public defender office, but instead chooses to curb the constitutional rights of low-income defendants. Reported the Dallas Morning News ("Collin cuts court costs, but at what price?," Aug. 4):

Collin County, fed up with soaring court costs, has become the toughest county in Texas for criminal defendants seeking court-appointed lawyers to defend them.

Some legal experts say the new county-imposed limits on a defendant's income and assets raise questions about the quality of justice in Collin County, one of the state's wealthiest suburban enclaves.

The new rules also set Collin apart from Dallas and other Texas counties whose judges routinely grant court-appointed attorneys to criminal defendants with no financial background check.

Collin County Commissioner Joe Jaynes, who originally approved the new guidelines, says he is having second thoughts.

"I hate to see us starting to chip away at constitutional rights in the name of trying to save money," Mr. Jaynes said. "It's a very slippery slope we're starting to tread."

More than 1,000 defendants in Collin County who applied for a court-appointed lawyer last year failed to receive one because they didn't meet new strict financial guidelines, records show. That figure represents about a third of those who sought free counsel.

Consequently, Collin County's indigent-defense costs fell more than 20 percent in the year ending last September, the first full year under the new crackdown.

Officials defend the policy based on savings, but isn't that penny wise and pound foolish? If the county later endures civil litigation, for example, over failing to ensure defendants' constitutionally guaranteed right to counsel, the savings will appear minimal. If defendants later begin getting new trials because Collin County prosecutors inappropriately bullied them into pleas without a lawyer, will these savings really have been worth it?

Malia Brink of the National Association of Criminal Defense Lawyers said Collin's definitions of indigency are now among the most stringent in the nation, posing significant risks:

"If the system isn't balanced, it doesn't work," Ms. Brink said. "Defenses aren't presented appropriately, the wrong people go to jail, the real criminal remains at large.

"The whole process becomes more expensive because there are more appeals – more valid appeals – and then you have to try the case all over again."

Bottom line, Collin commissioners and judges want to have their cake and eat it, too. They want to keep the current system of appointing private counsel for indigent defendants but don't want to pay the attorney's fees.

Every county in Texas has seen its indigent defense costs increase after the Texas Fair Defense Act in 2001 strengthened requirements that counties appoint counsel in all adversarial proceedings against defendants from B misdemeanors up. But there are smarter ways to handle the problem than Collin officials have chosen.

In Dallas, a county public defender office has kept their costs from rising nearly so quickly. Neighboring Kaufman County just opened a public defender office to reduce costs, move cases more quickly through the system, reduce jail overcrowding and provide defendants a more consistent quality of counsel. Hiring staff counsel for indigent defense makes economic sense for the same reason it would be impractical to contract out prosecuting every criminal case.

Simply telling people who can't afford an attorney you won't get them one won't fly - if defendants denied attorneys are winding up defending themselves "pro se" in significant numbers, I wouldn't be surprised to see Collin County become the target of successful civil litigation. (See comments for discussion of correction.)

The News reports that "in every case file The News reviewed, original paperwork revealed that one of two things happened to a defendant who was denied court-appointed counsel: the accused hired his own attorney or the judge reversed county government staffers and appointed one."

That tells me that judges are consistently finding many defendants indigent who the county said were not. Collin County's indigency rules by that standard are wrong on their face, since the judges are routinely finding many cases where people really couldn't afford counsel. In the meantime, taxpayers must house these folks in the jail at $40+ per day until a judge overrules the county, or until people sell off assets or find some relative to pay for a private lawyer. That's not a cost-effective or sustainable system in the long haul.

BLOGVERSATION: Mark Bennett at Defending People has more.