The Tip of the Iceberg

I’ve now heard about two Republican criminal court judges telling other judges that they will not give court appointments to criminal-defense lawyers who are running for other Republican criminal court judges’ benches. It’s unattributable at this point, but my sources are credible and have provided information in the past that has turned out to be correct. I’ll keep asking them to allow me to name names before November, but meanwhile. . .

Judges, what the hell are you thinking?

Do you think that withholding paying work from political opponents isn’t corruption? (It is; it may even be prosecutable.)

Do you trust the people you make these offers to not to rat you out? (You can’t. Obviously.)

Are you just trying to prove to the world that you can get reelected in Harris County no matter how blatantly corrupt you are?

(I’m sure that more than two judges have adopted this particular corrupt practice, but they don’t know which two I know about.)

Revisiting the Problem of the Working Poor

Andrea Marsh of the Texas Fair Defense Project comments:

I think you’re letting the judges who won’t appoint counsel to indigent bail defendants off too easily. These judges are violating the law, whether they straight out deny an application based on bond status (CCP 26.04(m)) or hold applications for counsel while repeatedly resetting cases in order to pressure defendants to hire lawyers (CCP 1.051). 

A defendant who can only afford a $100 fee for a lawyer who will do no more than lend false legitimacy to a guilty plea is indigent in 6th Amendment terms. We get calls from Harris County bail defendants who don’t even have that much money but still can’t get a court-appointed lawyer. Court staff often won’t even give them an application for counsel. I know it’s bad for business (at least that part of the business that depends on low-fee pleas) but I wish there was more outrage from the defense bar on this issue. I know HCCLA made some efforts in this area before, but this post just seems to accept that bad status quo.

Mr. X. adds: “Why do judges threaten to put defendants in jail when they fail to
come to court with an attorney? Its seems silly and more than just a tad illegal.”

In Harris County we’ve seen three major problems with judges’ handling of counsel for indigent defendants on bail:

  • Judges refusing appointed counsel to indigent people on bail;
  • Judges threatening to jail people on bail for not hiring lawyers; and
  • Judges jailing people on bail for not hiring lawyers.

I think that the third problem has, for the moment, been solved. HCCLA propagated a resolution against it a few years back, explaining the law to the judiciary, and I haven’t since heard complaints of judges revoking people’s bonds because they haven’t hired lawyers.

Some otherwise-reasonable judges who know perfectly well that they can’t jail a defendant for not hiring a lawyer, however, still threaten to do so either directly or through proxies (typically their court coordinators).

In another context the Deceptive Trade Practices Act bars “representing that an agreement confers or involves rights, remedies, or obligations which it does not have or involve, or which are prohibited by law,” but I don’t know where it is written that it’s illegal for a judge to threaten to do something that he can’t legally do. That proposition may only be found in the Restatement of the Obvious. The empty threat to jail a defendant for not hiring a lawyer is a lie; nothing justifies a judge lying to the accused.

Here’s how indigent defendants on bail (often the working poor) get forced to hire low-bid lawyers:

  1. D is arrested.
  2. D goes to court.
  3. D is a appointed a lawyer.
  4. D’s family gets together every available penny.
  5. D’s family pays every available penny to the bonding company.
  6. D gets out on bond.
  7. Judge, with D’s lawyer’s acquiescence, takes D’s lawyer off D’s case.
  8. D starts calling lawyers for price quotes.
  9. D can’t afford a lawyer.
  10. D goes to court.
  11. Judge tells D to hire a lawyer or else.
  12. D gets a longer scraper, hits the bottom of the barrel, and finds a breathing human with a law license who’ll take his case for $150 per court appearance.
  13. Judge is perversely pleased with himself, convinced that this is proof that D was not indigent all along.
  14. Judge does the same thing next time.

The law that Andrea mentions in her comment governs the appointment of lawyers to indigent people on bail. Article 26.04(m) says:

In determining whether a defendant is indigent, the court or the courts’ designee may consider the defendant’s income, source of income, assets, property owned, outstanding obligations, necessary expenses, the number and ages of dependents, and spousal income that is available to the defendant. The court or the courts’ designee may not consider whether the defendant has posted or is capable of posting bail, except to the extent that it reflects the defendant’s financial circumstances as measured by the considerations listed in this subsection.

So whether the accused has made bail is only relevant as it reflects on the defendant’s resources, including his wife’s income that is available to him. If momma makes bail, that’s not relevant; if he was indigent when he was in jail, he’s still indigent after momma bails him out.

Section 1.051 of the Code of Criminal Procedure provides in part:

In a county with a population of 250,000 or more, the court or the courts’ designee shall appoint counsel as required by this subsection immediately following the expiration of one working day after the date on which the court or the courts’ designee receives the defendant’s request for appointment of counsel.

There’s no “he made bail” exception for indigent defendants.

“He made bail” is also not grounds for the removal of appointed counsel. So when a judge removes appointed counsel from an indigent accused’s case because the accused made bail, the judge acts outside the law. When a judge threatens to jail a person for not hiring a lawyer, the judge acts outside the law. And when a judge refuses to appoint a lawyer to an indigent person who has made bail, the judge acts outside the law. Because the $150 “lawyer” is not going to do squat for the accused outside the courtroom (and precious little in it), the accused suffers and justice suffers. The $150 lawyer might as well be no lawyer at all. But the docket moves along, the bottom-feeding lawyer makes a living, and the taxpayer is spared the expense of actually providing effective representation to the accused.

What to do about this mess? It’d be nice to see the court-appointed lawyers standing up for their clients and insisting on remaining on their cases even after they made bail. A lawyer’s duty to his client is the same whether the lawyer is court-appointed, pro bono, or richly rewarded. In this instance, the lawyers’ duty is to see to it that their clients have continuous and effectual representation. But I’m afraid their acquiescence is part of the cost of an ad hoc indigent defense system. When lawyers go along with judges’ interference with their representation of their clients, they are on the wrong side of a conflict between the clients’ interests (to have appointed counsel if they are indigent) and the lawyers’ interests (to get more appointments).

If the appointed lawyers aren’t going to act, the judges should do it on their own. I had some hope for the newly-elected district court judges. But I’ve already heard several of them expressing concern for the talisman of their docket sizes, which is not properly their concern. (A notable exception is Judge Ritchie of the 337th, who said in his accession speech that he didn’t care about his docket size; other judges present pointed out that Judge Ritchie had inherited a small docket.) I’m not betting that they’ll upset the financial applecart by keeping appointed lawyers on the cases of indigent people whom they can, by long tradition, get away with depriving of appointed counsel.

So what else is to be done?

Lawyers could volunteer to represent the working poor pro bono, but the private bar does not have an obligation to subsidize the courts’ unlawful deprivation of effective appointed counsel, and shouldn’t encourage it.

The provision of free lawyers to people accused of crimes is not a popular topic with the voters (except perhaps for the negative position). Still, it might make some impression on the judges if we were to start calling them out publicly.

Probably what it’s going to take to fix this, like other aspects of the Harris County criminal justice system, is adult supervision by a U.S. District Court, or the threat thereof.

Frivolous Conflicted Representation. Where Else but Harris County?

From Social Services for Feral Children comes this story, which the Houston Chronicle seems to have flat-out missed.

Follow along here:

Elizabeth Shelton has a car crash. She rear-ends Lance Bennett (no relation AFAIK; I have a cousin Lance who went to LSU, but I don’t think he’s a truck driver). Her boyfriend, Matthew McNeice (the Chronicle renders it McNiece, but the District Clerk’s civil records have McNeice), is killed in the crash. Elizabeth’s SUV is destroyed.

Elizabeth is prosecuted for intoxication manslaughter. She is convicted. That is, a jury finds beyond a reasonable doubt that she caused McNeice’s death by reason of her intoxication.

Almost two years after the accident, Elizabeth sues Lance for the damage he did to her truck (and her manicure — oh. mah. god.) when she rear-ended him while intoxicated, causing McNeice’s death.

This is the sort of thing that has the tort reformers slavering — SSFC schools us Texas lawyers on negligence and contrib — and that’s where the Houston Chronicle’s reportage seems to end.

But SSFC, one of my new blogospheric favorites, didn’t stop there. For some reason he looked up the case in the Harris County District Clerk’s records (hey, I didn’t even know that search page existed!). Here’s what he found:

Mark T. Sandoval, the lawyer for Elizabeth Marie Shelton (the woman who, already convicted of causing Matthew McNeice’s death by reason of her intoxication, is suing the man whose truck she hit) is also the lawyer for Barbara Chapman and Sid McNeice.

Who are Barbara Chapman and Sid McNeice? Representatives of the Estate of Matthew McNeice, the young man who was killed while “hanging out the window” of the drunk woman’s truck, “and yelling joyfully“, who is also suing the truck driver. Of course.

You would expect that the family of the man who Elizabeth killed might sue Elizabeth for killing him. It’s a laydown case since Elizabeth has been convicted of killing him.

Maybe that case has already been settled, and all of the accessible assets have been squeezed out of Elizabeth. But you would also expect the lawyer deciding when to stop squeezing not to be concerned about the interests of the squeezee — a jillion-dollar judgment that will follow Elizabeth around (in case she hits the lottery or makes something of her life) along with the cash from her insurance policy might be better than just the cash.

So it’s strange that Sandoval, who as the lawyer for McNeice’s estate was responsible for suing Shelton, is representing both the estate and Shelton. Not to belabor the point, but he’s representing both the young man killed and the young woman already held legally responsible for snuffing out his life.

Doubly strange, Sandoval, as of April, had “also represented Shelton’s wife in a lawsuit related to a fatal car crash involving their daughter, who was convicted of intoxicated manslaughter late last year.” In cause number 2007-13580 Sandoval sued Lance Bennett on behalf of Shelton’s mother, Julia Rogers, alleging that on October 23, 2006 Bennett collided not with Shelton but with Rogers in an auto accident)

That’s not generally the way we Texas lawyers roll. We actually know about conflicts of interest, and most of us don’t go around filing blatantly frivolous lawsuits against people.

But there are three things you have to know about Mark Sandoval.

First, he spent the three years from September 26, 1997 to September 26, 2000 suspended from the practice of law for conduct involving dishonesty, fraud, deceit, or misrepresentation, and the period from March 27, 1998 to March 26, 1999 doubly suspended from the practice of law (I couldn’t find an announcement in the Texas Bar Journal explaining why, possibly because he was already suspended at the time).

Believe it or not, it’s not easy for a Texas lawyer to get himself suspended; Sandoval had already been publicly reprimanded twice, on February 22, 1995 (for charging an illegal or unconscionable fee, and for failing to protect a client’s interests on termination of representation) and on May 9, 1996 (for a laundry list of disciplinary violations).

Second, he takes appointments in Harris County juvenile cases. The appointed juvenile defense bar is not representative (to put it gently) of the Texas bar, the Harris County bar, or the Harris County defense bar as a whole. To put it less gently, the quality of representation that indigent kids accused of crimes get in Harris County is shameful.

Third — and I think this ties all the threads together neatly — Sandoval is appointed to juvenile cases almost exclusively by Harris County Juvenile Court Judge Pat Shelton — the father of Elizabeth Shelton.

[Update 12/18: More on Mark Sandoval.]

Not Fail-Safe in the Courthouse

I’ve heard several reports that when the power blinked out yesterday at the Harris County Criminal “Justice” Center all of the electronically actuated doors (including exits from holdover areas to courtrooms, and doors to fire stairs) locked.

That’ll make things really exciting when there’s a fire and a power outage at the same time.

Post Hoc Ergo Propter Hoc?

We lawyers are supposed to be reasonable, logical folk. We’re supposed to resist logical fallacies like post hoc ergo propter hoc. But sometimes it’s just too hard.

For example:

  • 1987 – 2007 Prosecutor Kelly Siegler spends 21 years in Harris County DA’s office;
  • December 27, 2007 Harris County DA Chuck Rosenthal is brought down by disclosure of emails;
  • January 2, 2008 Siegler decides to run for Harris County DA;
  • January 17, 2008 Siegler announces that changes need to be made in Harris County DA’s office.

It’s hard to resist concluding that the announcement that changes need to be made was a result of the decision to run for DA.

Here’s another one:

  • December 27, 2007 Harris County DA Chuck Rosenthal is brought down by disclosure of emails;
  • January 8, 2008 the emails are widely disseminated.
  • January 9, 2008 Harris County Sheriff Tommy Thomas changes email retention policy so that all emails are deleted within two weeks;
  • January 10, 2008 Channel 13 News reporter Wayne Dolcefino reports his investigation into the fact that Leroy Hermes the architect with the contract to build a new jail (which Thomas signed off on) also helped with the design of Thomas’s million-dolllar (being a cop is good business!) ranch house.

It’s hard not to conclude that the change in Harris County’s top cop’s email policy was a result of the wide dissemination of Harris County’s top prosecutor’s politically-devastating emails, possibly combined with the then-pending news investigation of the interesting relationship between Leroy Hermes and Tommy Thomas (and, incidentally, other county officials with input into the jail contract).

This one mystifies me, though:

  • December 27, 2007 Harris County Republican DA Chuck Rosenthal is brought down by disclosure of emails;
  • January 10, 2008 Republican Texas Attorney General Greg Abbott announces a criminal investigation of Rosenthal;
  • January 17, 2008 Republican Texas Supreme Court Justice David Medina is indicted, despite the best efforts of Assistant DA Vic Wisner, for tampering with evidence by a Harris County grand jury; his wife is indicted for arson;
  • January 18, 2008 Rosenthal dismisses all charges against Medina and his wife.

This from the office that blames the grand jury for no-bills in killer-cop cases, and hides behind the jury in other indicted cases. Don’t get me wrong: I think the DA’s office should absolutely dismiss cases in which further investigation reveals that the grand jury likely got it wrong, or that there may be probable cause (the grand jury’s standard) but not proof beyond a reasonable doubt.

But here the dismissal was immediate — it was announced the day the indictment was handed down. If Rosenthal hadn’t been disowned by the Republican leadership, the political motivation for the dismissal would be more clear. On the other hand, if Rosenthal hadn’t been disowned by the Republican leadership, the dismissal would have been a politically-dangerous move in an election year. Maybe someone else can shed some light on how Rosenthal might benefit from dismissing Medina’s case. Or maybe he doesn’t, and he dismissed it because it was just the right thing to do — part of “literally and figuratively” getting his house in order?