Sunday, October 16, 2016

Cheapskates: Defalcation of capital attorney fee sends message court devalues indigent defense

Former Gov. Rick Perry paid his lawyers upwards of $2 million to defend him against ultimately-dismissed non-capital felony charges, but the Texas Court of Criminal Appeals thinks a trial judge was reasonable in determining $48,000 was too much to pay the second chair in a capital-murder case resulting in a life-without-parole sentence.

In yet another opinion "tinged with despair," Judge Elsa Alcala's dissent, joined by Judge Larry Meyers, aptly explains how ridiculous this stance really is, showing the lawyers performed their role at a relatively "bargain" price to the state. She suggested the court's decision should come with a sign reading, "Lawyers Look Out: Judge May Not Pay for Your Work." Indeed, that language is now formally implied in every contract an attorney signs to defend an indigent capital defendant in Texas. Because the state that once brought you a sleeping lawyer in a capital-murder trial needs more disincentives for attorneys to zealously defend their clients. (/sarcasm)

A concurrence to the majority decision by outgoing Judge Cheryl Johnson argued that the attorney hadn't jumped through the right hoops to get paid, but Alcala argued that the decision ignored the record, "places form over substance," and "abrogates our responsibility as an appellate court" by failing to hold the trial judge accountable for things the law says she "shall" do but did not.

Didn't anybody (besides Alcala and Meyers) think this will contribute to the hard-to-ignore impression that the CCA indulges an institutional motive to minimize incentives for high-quality capital defense work, and that at some future point that will come back to bite them in the behind? Talk about penny wise and pound foolish!

Paying for capital defendants to have quality legal representation on the front end can prevent years of delays down the line. After all, the famous last-minute habeas filings in capital cases are mainly necessary because so many issues were never adequately raised at trial or on appeal by underpaid and sometimes underqualified attorneys. Everyone decries the fact that capital cases are mainly litigated in the habeas phase, sometimes causing capital defendants to linger on death row for decades. But this example demonstrates why: The government isn't willing to pay for an adequate defense up front, even when they're threatening to kill the defendant, and the Texas Court of Criminal Appeals is just fine with that.



Soronel Haetir said...

Aren't most cases appeals courts deal with more concerned with form over substance? Certainly habeas cases are all about procedure rather than actual guilt or innocence. So in that respect this is nothing new.

Anonymous said...

Soronel: It depends what you mean by procedure - what habeas is really about is -- or should be about -- is the fundamental fairness of the trial and sentencing, and habeas is the forum in which issues such as e.g. ineffective assistance of counsel, false testimony, jury misconduct or Brady violations can be litigated. It is often necessary to raise those issues in order to get at the underlying guilt/innocence issue (or the question of whether the sentence was proper) because these are the sorts of factors that often distort the fact-finding process. But yes, courts are very concerned with form. There's no denying that.

Anonymous said...

Perhaps the CCA would have been more amenable to paying had the State actually been successful in getting their death sentence.
Judge Alcala's dissent shows an incredible amount of insight into what it takes to defend a case. Judge Johnson is the only one with criminal defense experience.

The rest -- they have been on the government dole their entire careers. These people wouldn't know what it takes to defend a class C traffic ticket. Yet, they determine that someone who has basically floated the government by doing work and then not being paid is unworthy of their consideration. They complain because they have too many cases ... yet they have no deadlines. They get state benefits and are guaranteed a salary no matter what they do. It would be laughable if it wasn't so shameful.

Anonymous said...

Any info on how much the prosecutor was paid in this case? I bet it was a lot more than $48,000

drewwilley said...

What can we do to raise funds to get Mr. Perkins paid for his work...which saved a man's life!