November 3, 1989: George Bush Sr. was in the White House, The Cosby Show was still atop the Nielson ratings, Janet Jackson's "Miss You Much" was the #1 song on the Billboard charts, and hardly anyone had heard of this obscure thing used by defense researchers called the internet. And yours truly (with a lot more hair and a very bad suit) was standing in a crowd of other people wearing not much better suits squeezed into the Frank Erwin Center in Austin, Texas being sworn in as a lawyer. I don't remember much more about that day, other than the chicken fried steak at Threadgill's and getting a J.C. Penney briefcase from my beaming, choked up mother.
I don't remember what I was expecting the next 20 years to be like. I just had a vague notion that I wanted to make a living as a criminal trial lawyer, and I wanted to have an interesting time doing it. Now, I have noticed that wealth tends to corrupt people and has a way of wringing the joy and fun out of work, so I am fortunate, like many others who do what I do, to have studiously avoided getting rich.
But two decades, several thousand criminal cases, and approximately 100 jury trials later, I can say that it has been interesting. I have witnessed not only jaw dropping stupidity and cruelty in both people and institutions, but also flickers of humor and humanity even in people who have been accused of doing unspeakable things. I have had the proverbial front-row seat at the circus. If I died tomorrow, I could honestly and proudly say that I had kept a few people out of prison who didn't belong there, saved more than few poor people from being needlessly buried beneath the courthouse, and helped change the way in which criminal law is practiced in my small corner of the world for the better. I'm not supposed to be doing this, of course. I grew up in a small town in the rural South.
I had one grandfather who was a bootlegger during Prohibition and another from the backwoods of Alabama who never graduated from school. I'm supposed to be driving a truck or bottling beer like my dad did. I'm supposed to be working on a farm or in a factory like the friends I went to school with. I'm not supposed to be part of a tradition of protecting liberty that stretches back literally hundreds of years and includes people with last names like Adams and Lincoln and Darrow. Sometimes when I'm in a jury trial, and there's a lull in the action, I'll look around at the courtroom and the people sitting in the jury box and think to myself: "This can't be me. I can't believe I get to do this." I have been very lucky for the last twenty years. Here's hoping my luck keeps running for another twenty.
A prospective client asked me today whether or not I accept court-appointed criminal cases and was relieved to find that I don't. This is a question I get at least once a month. People facing the prospect of going through the criminal justice system are suspicious of court appointed lawyers and are surprised and disconcerted to find out that so many lawyers accept criminal cases on a court-appointed basis. I think that they are right to feel uneasy. In case you don't know, here's how the court-appointed system works, or is supposed to work, in criminal cases in both Comal and Guadalupe Counties: First, a person shows up to court and tells a judge or court coordinator that he can't afford to hire a lawyer. It's not automatic that he gets a lawyer. He's then usually required to fill out some paperwork describing his financial situation in order to see if he "qualifies" to have a lawyer appointed (why the courts think anyone would ask to have a lawyer appointed when he could afford to hire his own is beyond me). By the way, don't ask me what the financial guidelines are for qualifying for a court-appointed lawyer. There is no set formula under Texas law.
I have asked judges and court coordinators what the official cut-off is, and have never gotten a straight answer. And I have repeatedly seen people on Social Security disability denied the appointment of an attorney. But let's say the person qualifies. The court then selects a name of an attorney from a list of attorneys that have told the court that they will accept court appointed criminal cases. In theory, the attorney is supposed to be whoever is next on the list. Often, the attorney is just whoever happens to be handy. Lawyers who hang around courthouse waiting to get appointments are sometimes referred to as "courthouse vultures." The defendant has no say in who is appointed to him; it's the luck of the draw. The attorney appointed may be the second coming of Johnny Cochran, or he may be Elmer Fudd. If the defendant does not like his attorney, it is rare that a court will allow him to fire the attorney and replace him with another court-appointed attorney. The attorney then goes to work on the case. Typically, in most courts, a court-appointed attorney will not be paid fees until the case is finished. Thus, the attorney has a strong incentive to finish the case as quickly as possible. Needless to say, it is rarely in the best interest of the defendant for the case to go as quickly as possible.
The other questionable feature of the court-appointed system is that the lawyer gets paid by the same court that may wind up punishing his client. Keep in mind that judges reserve the right to kick lawyers off of the court-appointed list if the lawyer displeases them. Again, there is more of an incentive to please the court by moving cases quickly through the system than there is to look after the best interests of the client. Finally, it should be noted that the court-appointed lawyer is not "free." If a person is convicted or placed on probation, he is required to reimburse the court for the fees it gave to the attorney. As I said, it doesn't surprise me at all that defendants think that this system is rigged against them. The most curious thing I have seen over the years is the number of indignant lawyers (always court-appointed) who have approached me asking why I refuse to participate in the system. The answer is easy: it's an unjust, dysfunctional system, and I'm not a codependent enabler.
Do I think indigent defendants deserve representation? Of course. I also believe that, if the State of Texas cared about defendants' rights, it would join most of the rest of the civilized world and create a state-wide system of public defenders offices staffed by lawyers who specialized in criminal defense. Why won't Texas do this? For the same reason it let's child abuse go on relatively unchecked, doesn't provide adequate care for the mentally ill, and maintains one of the worst performing school systems in the country. The present system is cheap. Doing things right would cost money. And the State doesn't care enough to spend money. And that's why I don't accept court-appointed criminal cases.
Who knew that printing a new firm brochure would be such an adventure? We just put out a new firm brochure for the first time in a few years. We were really proud of it: it's colorful, glossy -- a real classy, eye-catching deal. And then we got the call from California. It seems a lawyer from California was arrested on the Guadalupe River in New Braunfels this weekend for, of all things, violation of the city boom box ordinance. But that's not what was interesting about the call. We have two toll free numbers -- one for our New Braunfels office, one for Seguin. One of the numbers he saw on the brochure when he was dialing was the toll free number for Seguin.
Turns out what he got, instead of us, was an adult phone sex line offering conversations with very interesting ladies. Now, mind you, this brochure was proofed repeatedly by four people, has been out for about three weeks, has been sent to hundreds of people, and was reviewed for compliance by the Advertising Review Committee of the State Bar of Texas. But not until now did anyone bother to mention that anything was out of the ordinary.
The attorney helpfully pointed out that this might not be the image for which we were striving. For the record, our correct toll free number for Seguin is 1-866-387-2722. The most interesting part about this incident: since the new brochure went out, our business in Seguin has increased approximately 50 percent compared to July of last year. Haven't heard if business is up for the phone sex line. If so, talk about synergy.