http://www.fombylaw.com/2016/04/28/does-a-right-to-counsel-still-exist-in-bell-county/

Does a Right to Counsel Still Exist in Bell County?

//Does a Right to Counsel Still Exist in Bell County?

Does a Right to Counsel Still Exist in Bell County?

Last Monday morning, I appeared with my client, ready to defend her in a jury trial for assault. The case involved my client, then seven months pregnant, who discovered her baby daddy in flagrante delicto with one of her closest friends, just two hours after he had left her own bed. She confronted her boyfriend, asking him pointedly why he was “f***ing this ho!” The other girl then jumped in, virtuously asserting that “I ain’t no ho! I’m a stripper!” Heated words were exchanged, a lamp got knocked over and broken, and then my client left the scene. Shortly thereafter she was stopped and arrested by Killeen police, based solely on the statement of the stripper. I got the case two years ago, and over that time have fought with three different prosecutors about dismissing the case, twice bringing the stripper to meet with the prosecutors to recant her story and ask that the case be dropped. All this time we have had almost twenty court appearances in the case, with my client showing up on time for all of those appearances but one, when her bond company abruptly went out of business, but left their automated check in system in operation, falsely informing their former clients that there were no court dates pending for them. That led almost all of those clients to fail to appear for their next court date, and in virtually every case the county simply put them on a PR bond for free and reset their next court date with no penalty. In the present case, however, prosecutor Jamie Decker filed bail jumping charges against my client just before she was due to appear in court for the Friday afternoon pretrial conference to finalize plans for the trial the following Monday. Decker thought she could have my client arrested at that time, and thrown in jail over the weekend, making if very difficult for me to meet with her to prepare the case. When she learned that the judge had previously excused my client from appearing, Decker then moved to continue the trial to another date. The next Monday I walked my client through turning herself in to the jail on the new charge, then immediately bonding out on a free PR bond.

Meanwhile, Decker still refused to drop the charges in the assault case, even though she was well aware that the so-called “victim” was now living in North Carolina and had no intentions of showing up for trial, forcing the case to be dismissed. And then another issue popped up. A few months ago I started preparing for trial and attempted to review video and audio evidence the state had provided. When I popped the DVD into my computer, however, I discovered that the county had mistakenly put the wrong evidence on the DVD. Instead of my client, the DVD actually contained a video from a felony case I tried two years ago. The only trial I have ever lost. I requested a correct copy, and last week Decker sent me an email saying the State had destroyed the two police cam videos and the 911 audio recording. I immediately filed a motion to dismiss, which the judge initially denied, then offered to reconsider if I could research the issue and bring him a stack of case law on Monday morning. At the minimum, he said, I could get an instruction on spoilation, an instruction to the jury that they could presume that the destroyed material contained evidence that was favorable to my case, an instruction that almost guaranteed a not guilty verdict. (I also filed a motion to dismiss in the bail jumping case, pointing out that Texas law prohibits selective enforcement of the law, and the Constitution prohibits prosecutorial abuse for the purpose of coercion and denial of due process rights.)  I spent ten hours over the weekend researching relevant case law and proving that the case should be dismissed. I also spent eight hours preparing for trial on Monday if somehow I got overruled and the victim actually showed up.

On Monday I arrived in court at 8:30 am, and sat there until almost eleven waiting for Decker to finally hand the judge the documents for dismissal. A new issue had popped up. Evidently my client had failed to pay an old traffic ticket, and Decker was trying to get the Killeen police to arrest my client and haul her off to jail again. Eventually, however, they finally acknowledged that they had no legal authority to arrest her, and Decker, having played her last trick, caved in and handed dismissals on both cases to the judge.

But the story didn’t end there. As a court appointed lawyer on the first case (pro bono on the second), I then submitted my request for two half-day charges, one for trial prep and the other for my appearance for trial. The total bill for those eight hours I submitted was $800. For in excess of 32 hours work on the case. The judge rejected the bill, and instructed me to resubmit it for a simple dismissal for $300. My response to him is copied below:

I can do that, but the bigger issue is that when the State is aware that their victim is in the wind and that the trial has no chance of happening, but nonetheless forced me to fully prepare for trial and show up and spend two hours waiting for them to put the dismissal in front of you, then that creates a strong economic disincentive for defense attorneys to force their hands and bring cases that are unwinnable by the State to trial. This is the eighth case in a row that the State either dismissed or severely modified their plea demands on the morning of trial. That means I spent 6-8 hours over the previous weekend and two or so hours on Monday morning, plus all the time managing the case over the previous year or so, including, in this case, bringing the victim to meet with the prosecutor — TWICE — to recant their previous statements and ask that the case be dropped. Also, in this case, four hours to research, prepare and file a motion regarding the State’s destruction of critical evidence, and six hours researching the coercion issue. Added up, in this case alone that amounts to a minimum of twelve hours directly related to preparing for trial alone, plus another ten or so hours managing the case pretrial, and ten more hours on research. Dividing that into $300 (the second case was pro bono, to deal with the State’s decision to charge my client with the crime of being poor and out on bail with a failed bonding company), that equates to $25 per hour for the trial alone, and less than $9 per hour for the entire case. At those rates, no attorney who has to pay his own bills (fortunately, not a condition that applies to me) would ever do more than bleed and plead his clients. Fighting for true justice would be a sure fire route to personal bankruptcy. On top of this is the County Attorney’s new policy of dismissing cases only if the defendants agree to reimburse the county for their court appointed attorney fees, even when the defendants are severely mentally ill and barely surviving on disability. And you know where I stand on that issue — over the past two years I have regularly waived my fee and personally shouldered the burden of my clients’ defense, meaning this is the first bill I have submitted in almost two years. Justice should not be on sale.

So I would submit there is a bigger issue here than five hundred dollars, which in the end actually matters very little to me. The real question is the public policy issue of whether Bell County is truly committed to the Constitutionally mandated right of defendants to assistance of counsel, or whether we will continue to erode this right piece by piece, until in the end only the wealthy will have a right to counsel, and the poor will be left to accept whatever pitiful morsels the County Attorney chooses to mete out to them.

By | 2017-09-05T09:37:48+00:00 April 28th, 2016|Injustice|0 Comments

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