Whenever someone is charged with a crime and they may not have the adequate funds to hire a lawyer for themselves, a justice of the peace or district judge will appoint them an attorney based on the nature of the crime and that attorney’s qualifications.
However, 70th District Court Judge Denn Whalen said the courts are having a problem right now where there aren’t enough attorneys to appoint that meet the specific qualifications. Each judge has a list of attorneys they are able to appoint to each case, and each attorney is listed with what cases he is qualified to handle, such as misdemeanors, and the varying degrees of felony cases, third, second and first degree.
Of the 38 attorneys judges are able to appoint for defendants, only 14 are qualified to handle first-degree felony cases.
Whalen said that the judges have been able to manage the problem.
“Sometimes you just have to appoint somebody that may not be actually on the first-degree felony list, but they’re willing to take it,” Whalen said. “As long as we feel like the lawyer is qualified, we can appoint anybody to it. We want to make sure that they have good representation.”
The Ector County District Court and County Court Plan lists the qualifications lawyers must have to handle first-degree felony cases as having practiced law for at least five years and having experience as lead counsel in at least eight felony cases tried to verdict before a jury. For second-degree felony cases, lawyers must have only four years of law practice experience and been lead counsel for at least four felony cases.
One possible solution to fix the issue of running out of qualified attorneys would be a public defender’s office, a county office separate from the judiciary providing counsel to indigent defendants. The first principle of a public defense system stated by the American Bar Association is that it must be independent, which is not the case in most of Texas, as the judiciary is in charge of the indigent defense system.
David Carroll, Executive Director of the Sixth Amendment Center, a nonpartisan group providing assistance on criminal justice matters to state and local policy matters, said one of the benefits of a public defender’s office is specialization.
“So if you have someone that is less qualified, but think could handle this, you could have that person sitting second-chair getting qualified under the supervision of someone who is qualified.”
Carroll said there are some other possible problems presented by public counsel being overseen by the judiciary.
“When that is the case, especially when judges are elected, there’s at least the appearance of a conflict and actual conflict,” Carroll said. “Because the defense attorney may take into consideration what they need to do to please the judge to get the next appointment, versus what it takes to please the client.”
Doing what it takes to please the judge would include factors such as simply getting the client to plead out to the first deal handed down by the state.
Whalen said there are some lawyers that are faster than others, and most cases end up being pleas. And there’s a reason for that, Whalen said, as he had around 550 cases indicted in his court last year.
“Just do the math,” Whalen said. “You can’t try all of those cases.”
Currently in Texas, there are only eight county public defender’s offices in Texas, of the 254 counties in the state.
County Judge Ron Eckert said there’s been no discussion in his time of adopting a public defender’s office for the county since his time in office, but said he thinks there must have been some point in the past when commissioners decided not to implement one after weighing a cost-benefit analysis.