Wednesday, February 25, 2015

Appellate Specialists and Indigent Criminal Trial Defense

I do a fair amount of state court appellate work. Enough of it to have racked up north of sixty appeals decided by appellate courts from around the state, including two published appeals from the Texas Court of Criminal Appeals. I have also made a few unsuccessful runs for discretionary review at the Texas Supreme Court.

I consider myself a trial lawyer. A trial lawyer, however, with enough appellate experience in both civil and criminal contexts to see disparities that bother me

A few days ago I was bothered more than most days. 

First I read something from civil appellate specialist Todd Smith. He has produced a series of podcast videos entitled "Appellate Practice and Procedure". The second in the series is a entitled "How Appellate Lawyers Bring Value to Trial Courts". The series is available in several places, one of which is at Smith's Texas Appellate Blog.

The video is about an hour long. The introduction from the blog post contains the following:
Not every case justifies the expense, but trial lawyers and their clients should consider retaining an appellate lawyer skilled in these areas to sit second or third chair at trial. In this role, appellate counsel can focus on protecting the client’s interests several steps down the line, while trial counsel concentrates on getting the most favorable testimony from witnesses and delivering an effective closing argument.
Second of third chair? The video is well done and well thought out. It is, however, marketable to an extremely narrow group of clientele: civil clients with lots of money. Perhaps a few institutional or independently wealthy criminal clients would be in the market, but you get my drift.

This is not meant to criticize Smith. He is in private practice. So am I. We have to generate business to pay the bills. If a wealthy client hits my front door and desires my particular skill set, I am more than happy to oblige.

It was something else that really made me think. Grits for Breakfast posted briefly about an infographic from the Texas Office of Court Administration (OCA) website. I have recently posted, using OCA statistics about how large a percentage of State and local misdemeanor dockets are taken up by DWI, Possession of Marijuana and Driving With License Invalid cases. The OCA has many useful and informative statistics derived by reporting from District and County clerks from around the state.

The infographic from the OCA revealed that in fiscal year 2014 (FY 2014), 71% of felony cases in Texas were handled by indigent counsel. Basically that means in FY 2014, 3 out of every 4 cases indicted in Texas were handled by either court appointed counsel or a public defender.

These two published items made me think about the likelihood a court appointed lawyer at the trial stage could convince a state district court judge that the county should pay for a second or third chair appellate specialist.

My bet? Probably slim to none.

Capital Murder with the Death Penalty in play? The ABA guidelines require at least two qualified lawyers be appointed. Second chair in these unique cases are trial counsel, not necessarily an appellate specialist. However, most Capital defense lawyers are asking now for third chair funding for an appellate lawyer of the type Smith advocates. Not all are getting them.

Capital Murder with the Death Penalty waived by the state? A harder sell to a state district judge. No punishment phase if the defendant is convicted, instead automatic life without the possibility of parole.

An example is a high publicized trial that concluded yesterday. The so called "American Sniper" trial in Erath County was a Capital Murder with Death Penalty waived. There were three court appointed defense lawyers on the case, including a law school acquaintance of mine, Tim Moore.

The American Sniper case is different for reasons obvious. Not many cases of any kind are being tried in the midst of a feted movie with a buffo $300 million box office, Oscar nominations and red carpet television appearance by the wife of the victim. On the merits, the case involved the insanity defense, which can be sometimes tricky. None of the three appointed lawyers are criminal appellate specialist. Two of the three, including Tim, are from Fort Worth. The third lawyer is from Stephenville, where the case is being tried. I have no independent knowledge, but I bet his presence was primarily attributable to local knowledge of the jury pool. If I am wrong, apologies.

 What about serious felonies other than murder? By this I mean first and second degree prosecutions, often aggravated, where defendants are facing multiple count and paragraph indictments, often with enhancements coupled with collateral consequences like sex offender registration. These folks almost never get approval for second chair funding, though in many cases these cases present more technical and nuanced legal issues than any murder case.

Cases like these illustrate the need of an appellate specialist focusing on the law and preservation of appellate error at the trial stage, even in "downstream" felony prosecutions. I get that there will always be disparity when money is involved and the state is footing the bill for criminal defense. Nevertheless, I think times have changed. With many of the changes in the law and technical preservation of error requirements enforced by state appellate courts, indigent defense trial counsel in many felony cases are in need of just the kind of court appointed appellate specialist advocated for by Smith in his blog.

The legislature has provided tools which give prosecutors an extreme amount of discretion. These tools take the form of enhancements, drug free zones and various penal code punishment upgrades (DWI  >.15 for example). Law Profs have come around to a theory they call provocative: District Attorney offices around the country have been too aggressively using these tools. This is not news to those in the trenches. This, according to the law profs, has led to the country's (and Texas) quantum leap in incarceration in the past twenty years.

 Further there is the phenomenon of the vanishing civil jury trial and the derivative fact most appellate dockets are taken up with criminal and not civil cases. Or, finally, that although available, most trial courts refuse to appoint appellate specialists to collateral state habeas claims except when state law requires in collateral habeas proceedings. That would only be in Capital Murder Death Penalty cases.

This will be the subject of a separate post.

Okay, venting concluded for the day. Appellate lawyers - go forth and do some trial work.

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