The Cost of Poor Advice

Here are just a couple of tales from the rough frontier of Texas justice: a teenager in Bexar County charged with drug crimes last September sat in jail for a month before his first scheduled meeting with a court-appointed lawyer. That attorney never showed up; and by the time the boy met the next one, he'd been behind bars more than three months. Andrew Cantu of Abilene was executed in February even though his third court-assigned appellate lawyer--the first two withdrew--didn't know how to find Cantu in prison, didn't do any investigation of the case and was unaware of the deadline for filing his final federal appeal.

Texas' reputation as a state without tender mercies for the accused is nowhere more apparent than in how it deals with defendants too poor to hire lawyers. They are provided with appointed counsel, but the competency of these lawyers, the rates they are paid and the speed with which they are assigned have shocked even impartial criminal-justice experts.

Now Governor George W. Bush may face some flak for claiming to be a "compassionate conservative," having just vetoed a bill intended to improve the system modestly. The bill's requirement that a defendant be given a lawyer within 20 days or else be released was "a danger to public safety," Bush said, though in most of the country indigent defendants are assigned lawyers within 72 hours. Bush had some political cover because even a few of the bill's supporters pulled back with concerns about giving county commissioners too much power to select the lawyers. But the front-running G.O.P. presidential candidate could still find himself embroiled in a debate about the sorry state of indigent defense, not just in Texas but in the rest of the U.S. as well. For one thing, the Supreme Court will consider later this year whether to tighten the standard for legal competency, after hearing a case involving bungled defense work on behalf of a convicted Virginia murderer with an appointed lawyer.

In 1997 nearly 10 million Americans were arrested, up more than 8% from four years earlier. Most of them need publicly provided attorneys. But what if their lawyers sleep through witness testimony, show up drunk for trial or miss crucial filing deadlines? What if they can't afford forensics tests or, as in the case of Roberto Miranda's lawyer in Nevada, fail to investigate their cases aggressively? Miranda was freed in 1996 from death row after 14 years when a judge found that a key witness had not been interviewed.

"Lack of funds is the first and foremost reason we have the situation we do," says Stephen Bright, who heads Atlanta's Southern Center for Human Rights. State public defenders and court-appointed lawyers typically make less than other lawyers--sometimes less than the minimum wage. Alabama's legislature last year voted an increase in the $1,000 top fee for lawyers handling death-penalty cases only to have the Governor veto it. In New York fees are actually shrinking; the state's chief judge recently reduced fees for lawyers representing death-penalty cases.