That divided accountability problem gives rise to both the appearance of corruption, and to corruption that’s rather obvious. For example, Texas death row inmate Hank Skinner has for years been asking for DNA testing on some crime scene evidence from his case. I wrote about Skinner’s case a few years ago. Despite Skinner’s pleas, his court-appointed attorney failed to make request the DNA testing at Skinner’s trial. The attorney’s failure to do so raised some troubling questions about his appointment.
[Skinner’s] court-appointed attorney made a strategic decision to disregard his client’s wishes, believing the testing would implicate him. That attorney, Harold Lee Comer, was a disgraced former prosecutor who lost his job after he was caught stealing money seized in a drug case. Skinner’s trial judge, a friend of Comer’s, assigned the attorney to represent Skinner and ordered him to be paid roughly the amount Comer owed the state for his own misconduct. In fact, Comer had actually prosecuted Skinner on an assault charge years earlier.
One could argue that it’s reasonable to deny a defendant’s request for DNA testing years later if he failed to make the request at trial. It’s a bit more difficult, but one could also argue that it’s reasonable to deny that request even though the defendant had asked his attorney to request the testing at trial, but the attorney decided it was against his client’s best wishes. But it’s a bit ridiculous to argue that a defendant should be denied after he made the request and his attorney—appointed with no input from the defendant, who had previously prosecuted the defendant as a DA, and who resigned form his position in disgrace—ignored the defendant’s request for testing because he just assumed his client was guilty.
If the proposed policy had been in place at the time, Skinner would have been able to pick and hire his own attorney, presumably one who either believed him, or at least wasn’t beholden to a judge to pay him enough to offset the debts he owed to the state.
But the problems with court-appointed counsel aren’t always so blatant. From Smith’s piece:
The system offers judges the “perverse” incentive to appoint defense attorneys who will keep the docket moving, or who grease the system in other ways, says Marc Levin, director of the Center for Effective Justice at the conservative Texas Public Policy Foundation, which has been vocal about its support for a program of client choice since 2012.Levin says he’s heard stories of attorneys being appointed as payback for generous judicial campaign contributions, or simply because they fail to do any vetting of a prosecution’s case before convincing their clients to accept a plea.Indeed, Levin said he heard one story, involving a lawyer in Harris County, where Houston is located, who was appointed to a case at 9 am and was in front of a judge two hours later, pleading it out.
Smith then explains how the voucher idea came to be:
The state is planning to launch a first-in-the-nation project to return control over indigent appointments to defendants, allowing them to choose their own government-paid attorneys.Architects of the new system say they hope it will realign the interests of participants, create better lawyer-client communications—and a better defense—and increase the overall effectiveness of, and confidence in, the criminal justice system.The program, known as the Comal County Client Choice Project, takes its cue from a 2010 Cato Institute report written by law professors Stephen Schulhofer from New York University and David Friedman of Santa Clara University, which proposed, in part, that instead of assigning lawyers to poor criminal defendants, those defendants, like their more affluent counterparts, should have the ability to choose the attorney to represent their interests.Lefstein, a vocal advocate of client choice who has studied and written about similar systems in place abroad, has been retained by Comal County to help design the new system.It’s a relatively simple concept. But, as far as the Texas stakeholders can determine, it has never before been tried in the U.S.—though it is an approach employed by many commonwealth countries, including in England and Scotland, according to Lefstein.That such a project had not before been tried in the U.S. seemed odd to Edwin Colfax and his colleagues at the Texas Indigent Defense Commission, which is tasked with helping the state’s 254 counties to develop and maintain effective systems of indigent defense.“It’s our business to try to spark innovation and to work with counties that do that,” said Colfax, the commission project manager.When the Cato report came out, the TIDC studied it carefully and began discussing if, and how, client choice might be brought to Texas.Ultimately, the TIDC approached officials in Comal County with a plan to put the project in play.
So it’s a pilot program. But at least intuitively, it seems to make some sense. Ideally, defense attorneys should be answerable only to their clients. There are going to some unavoidable limitations to that ideal when we’re talking about public money. But to the extent that we can minimize any possibility of competing loyalties, we should.
Of course, if the core problem is that states, cities, and counties (and for that matter, the federal government) simply aren’t devoting enough resources to indigent defense, this isn’t going to be enough. Divvying up too little money in more productive ways might improve the system, but it can’t overcome the fact that there’s too little money to divvy up in the first place. But that’s a separate problem. This is an idea worth watching.
Here’s the Cato paper that inspired the idea.
(Full disclosure: I worked for the Cato Institute from 2001-2006, and currently have an unpaid affiliation with the organization as a “media fellow.”)