The Collin County Observer™

Collin cuts court costs, but at what price?

12:00 AM CDT on Saturday, August 4, 2007
By ED HOUSEWRIGHT / The Dallas Morning News ehousewright@dallasnews.com

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.

Other cases:

In Gideon vs. Wainwright (1963), the court held that an indigent person accused of a felony was entitled to be represented by a lawyer at the state's expense.

"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," the opinion read.

In Miranda vs. Arizona (1966), the court ruled that a person in police custody must be told of his or her right to an attorney and of the right to remain silent.

"The person in custody ... must be clearly informed that he has the right to counsel with a lawyer and to have the lawyer with him during interrogation and that, if he is indigent, a lawyer will be appointed to represent him."

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.

In the county's current fiscal year, expenses continue to fall.

Commissioner Jerry Hoagland and some other county officials applaud the savings.

"That's what we wanted to do -- reduce expenses," Mr. Hoagland said.

David Udell of New York University law school said screening people who want free legal representation is a sound public policy.

"The problem is when you have overly stringent guidelines that mean people who can't afford counsel end up not being able to get it," Mr. Udell said.

Malia Brink, an attorney with the National Association of Criminal Defense Lawyers, believes Collin County now has stricter financial guidelines than most counties around the country.

To be eligible for a court-appointed attorney, a defendant must have less than $2,500 in assets, not including the value of his or her primary car. People who own a home don't qualify.

In addition, the accused can't earn more than 125 percent of the federal poverty level, which translates into a maximum of $10,210 a year for a single person.

Most counties with eligibility guidelines use 150 or 200 percent of poverty, said Ms. Brink. People who are denied a court-appointed attorney and can't afford to hire one face a serious disadvantage against prosecutors, she said.

"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."

State District Judge Chris Oldner, one of eight felony court judges in Collin County, said he sees no evidence that the county is denying representation to deserving people. County staffers initially verify income and asset information provided by defendants, but judges make the final decision.

"If an individual is denied an attorney through the process we put in place, we have the ability to review it," said Judge Oldner, administrative judge for the felony courts.

County Judge Keith Self, who heads the Commissioners Court, said he trusts judges to make sure deserving defendants receive court-appointed attorneys.

"We're relying on the judges' discretion," Mr. Self said. "We have to trust our judges to help us with the expenditure problem, but at the same time meet our legal requirements."

The Dallas Morning News reviewed a database of hundreds of felony cases. In some cases, electronic data indicated that a defendant didn't have an attorney -- court-appointed or otherwise.

But 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.

Rights for accused

In a landmark 1963 decision, Gideon vs. Wainwright, the U.S. Supreme Court unanimously held that an indigent person accused of a felony is entitled to a lawyer paid for by the government.

The court took defendant rights a step further in 1966 with its decision in Miranda vs. Arizona, which required police to warn arrested suspects that they have the right to remain silent and that they will get a court-appointed attorney if they cannot afford one.

In the four decades since those decisions, judges in most jurisdictions began to routinely approve a defendant's request for court-appointed counsel. It became their way to avoid any suggestion that they were violating the Gideon or Miranda rulings.

Collin County began using computer databases to verify defendants' financial data in May 2005. Before that time, almost everyone who claimed indigency received a court-appointed attorney.

Other Texas counties have income guidelines for people seeking free representation, said Wesley Shackelford, legal counsel for the Texas Task Force on Indigent Defense. But he said none screen defendants as thoroughly as Collin County, which has the state's highest median household income.

"I'd say it's very unique," Mr. Shackelford said.

A total of 3,337 Collin County defendants sought a court-appointed attorney in the year ending Sept. 30, 2006 -- the first full year with the eligibility guidelines. A total of 2,119 -- or 63.5 percent -- initially received one. Of the 1,217 defendants denied, judges later appointed attorneys to 398.

In the year ending Sept. 30, Collin County spent $3.5 million on indigent defense -- a 22 percent drop from the previous 12-month period. And records show the trend is continuing.

Throughout the state, other counties are struggling with runaway indigent-defense costs.

The rising costs stem from the Texas Fair Defense Act, a comprehensive set of reforms aimed at improving indigent defense. The Legislature passed the law six years ago.

It requires police to bring a defendant before a magistrate within 48 hours of arrest. At this point, the accused can request a court-appointed attorney.

On a recent morning, 30 Collin County inmates sat in a makeshift courtroom in the jail, awaiting arraignment. Those seeking a court-appointed attorney filled out affidavits and then handed them back to a county staff member who verifies their financial information within a few hours.

Justice of the Peace Paul Raleeh appeared on a TV monitor from his bench at the courthouse. He called up the inmates one by one to read their charges.

"Good morning, I'm Judge Raleeh," he said to Valerie Edwards, who was clad in a dark-blue jail jumpsuit.

"Good morning, your honor," she answered.

"You have been charged with the offense of abandoning and endangering a child with criminal negligence," Judge Raleeh said. "I'm setting your bond at $20,000."

He also issued an emergency protection order, prohibiting the woman from returning home for up to 60 days. She protested.

"Do not interrupt me," Judge Raleeh shot back. "You are not allowed to be at that address."

Ms. Edwards elected to hire her own attorney.

Costs soaring elsewhere

From 2001 to 2005, Collin County's indigent-defense costs rose 68 percent -- from $2.5 million to $4.2 million, state records show. Most Texas counties saw sharp increases during that period.

But since 2005, Collin County's measures have lowered expenses at the same time they've been soaring in other urban counties -- Harris, Dallas, Tarrant and El Paso.

No defendants or criminal defense attorneys have legally challenged Collin County's cutback on court-appointed counsel.

Karee Johnson of Dallas faced a misdemeanor DWI charge in Collin County early last year. At the time, he said, he earned $9 an hour repairing computers part time. His income and assets exceeded the guidelines for a court-appointed attorney, county records show.

Mr. Johnson, 31, wound up hiring his own attorney.

The crackdown on indigent-defense costs has put more money in the pockets of some lawyers. When county officials deny people court-appointed attorneys, some defendants go out and hire one.

W. Craig Barlow, a Richardson defense attorney, said he can earn $20,000 or more when he's hired to defend someone accused of a first-degree felony such as sexual assault, murder or armed robbery.

By contrast, the county might pay him only $3,500 to represent an indigent person facing one of those charges, he said.

He may gain financially, but he said poor defendants can lose if they go too long without an attorney after arrest.

"Once you have a case filed on you, should you have legal representation? Absolutely," Mr. Barlow said.

The Texas Fair Defense Project, which works to improve poor people's legal rights, urges defendants to insist on receiving an attorney.

Even a misdemeanor conviction can have severe consequences, the group says. A person can be denied a job, face eviction, forfeit child custody, be required to register as a sex offender or become ineligible for government assistance.

"What you don't know can hurt you," the Texas Fair Defense Project says. "Having an attorney ensures that you are aware of your rights, reduces your chances of being convicted of a crime that you did not commit and helps to prevent you from receiving unfair and unequal punishments."