Gideon Alert: Texas and a question of independence

BY David Carroll on Wednesday, March 24, 2010 at 12:08 PM

Independence of the defense function is the first of the ABA Ten Principles, and there is good reason for that.  The vast majority of judges strive to do justice in all cases.  Yet political pressures, administrative priorities such as the need to move dockets quickly, or publicity generated by a particularly notorious case can all make it difficult for even the most well-meaning judges to maintain their neutrality.  So it is critical that a judge should have no greater control over a public defender than she would have over a private retained attorney or than she has over the prosecutor in a case. 

Policy-makers should guarantee to the public that critical decisions --  like whether a case should go to trial, whether motions should be filed and argued on a defendant's behalf, and whether particular witnesses should be cross-examined -- are based solely on the factual merits of the case.  These decision should not hinge on a public defender's desire to please the judge in order to maintain his job.   When we as citizens fear that a court's process is unfair, we tend to be less cooperative with law enforcement, less likely to appear when called as witnesses and for jury duty, and in general tend to be more cynical about the ability of our government to treat all members of the community in a fair and even handed manner.

In Texas, undue judicial interference is a daily occurrence.  The Dallas Morning News reports that at least two Dallas County Judges are planning on cutting back on their use of staff public defenders in favor of appointing private lawyers despite this increasing the cost to the county.  The public defenders testified at a county meeting that judges' use of full-time public defenders typically decreases in election years.  The reason?  Private attorneys are primary sources of campaign cash in the county's numerous judicial races.

The nexus between right to counsel appointments and political judicial campaign contributions in Texas has been well documented.  In 2000, University of Texas at Arlington Professor Michael Moore and Tarrant County District Judge Allen Butcher conducted a survey for the State Bar of Texas.  That survey reported, among other things, that "[n]early four in ten (39.5 percent) of judges indicate that their peers occasionally appoint an attorney because he or she is a friend, while roughly one-third of judges sometimes consider whether the attorney is a political supporter (35.1 percent) or has contributed to their campaign (30.3 percent)."

"[H]ow can a judge, whose functions are purely judicial, effectively discharge the obligations of counsel for the accused?  He can and should see to it that, in the proceedings before the court, the accused shall be dealt with justly and fairly.  He cannot investigate the facts, advise and direct the defense, or participate in those necessary conferences between counsel and accused which sometimes partake of the inviolable character of the confessional."  Powell v. Alabama, 287 U.S. 45 (1932) -- the case of the Scottsboro Boys.