Posted on February 15, 2010 by Walter Reaves

The cost of an appeal lawyer

If you are indigent you are entitled to an appointed lawyer and free record on appeal. Sometimes there is an issue of whether the defendant is truly indigent. That was the situation in a recent case out of the Texas Court of Criminal Appeals - McFatridge v. State.

The defendant was convicted of DWI, and requested an appointed attorney to pursue the appeal. The court reporter challenged the indigency affidavit, claiming the defendant had enough money to pay for the $3,000 record. The contest was based on a conversation during trial where she claimed the defendant offered to trade antiques for a copy of the record. (can you guess where this comes from?)

After conducting a hearing the trial court determined the defendant had real property worth $6,670 and personal property worth $3,000 (i.e. the antiques). The court of appeals affirmed that decision, finding the defendant failed to rebut the evidence of indigency. In doing so, the court found that although there was no evidence of what the cost of an appeal would be, it shouldn't exceed $6,670.

There are several interesting things about this case. One is where the court came up with a reasonable fee for a DWI appeal. I'm not sure when the last time any judge on the Court ever handled a defendant's appeal, so where that comes from certainly isn't personal experience.  Might some lawyers agree to handle a case for that amount - maybe so. But to obtain representation,they are going to have to exhaust all their assets. Should we require defendants to do that?

The second unusual fact about this case is that it started with the court reporter. Normally it's the court that contests indigency determinations. Here, the court reporter initiated the process - was it to make sure she got the furniture?

Norm Pattis has started a discussion on a universal defender system. I think there is a lot of merit in that. There is no doubt that the middle class cannot afford lawyers for serious crimes. If they can afford a lawyer to represent them at trial, few have any money left to pursue an appeal. Not only do you have to pay a lawyer to handle the appeal, you also have to pay the court reporter. No one should have to choose between appealing a conviction and exhausting all their assets.

The criminal justice only works if you have access to it. I'm not sure you can say Ms. McFatridge truly had access to the justice system - there  has to be better way.

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Posted on May 21, 2008 by Walter Reaves

How can this be fair?

If you ever wondered why many people have such a poor opinion of the justice system, it's because of cases like Carl Wayne Buntion. The Fifth Circuit recently reversed a order from the Federal District Court which  had granted relief from his death sentence. The District judge concluded the trial court judge was biased, and therefore Buntion did not receive a fair trial. The Judge was William Harmon from Houston, who among other things, put up a post card of "hanging judge" Roy Bean during the trial. He also made the statement that he was "doing God's work" to see that Buntion was executed. If that wasn't enough, he changed several rulings after calling the District Attorney's office during trial, and getting advice them. He also tried to remove one of the lawyers, and then realized he couldn't do that. When the lawyers tried to have him removed, he threatened to accuse them of possessing drugs if they didn't stop challenging his behavior.  The  truly amazing thing is that most of the allegations were not disputed.

It's not too difficult why the federal district judge concluded the judge was biased. He obviously saw what happened, and knew something needed to be done.

Obtaining relief in a federal habeas proceeding is an extremely difficult thing to do. Much of the difficulty is the result of the standard of review. The courts are reviewing State court decisions, and will not second guess them unless they really stepped out of line. That means a federal court can believe a state court made the wrong decision, and still not grant relief. In a convoluted legal decision, the Fifth Circuit held the District Court should not have granted relief. That means Buntion is likely to be executed, after a trial presided over by a judge who at the very least did not comport himself to the standards we expect from judges.

It is difficult to imagine how anyone could think Buntion received a fair trial. The court noted the judge's action should not be commended (duh!), but apparently they were not so far out of line to establish bias. You have to wonder what else would it take. I'm sure most people expect more from their judges. Thankfully, this is a rare situation. However, that does not excuse a refusal to act. I'm sure Mr. Buntion and his family are not comforted by the assurance that this is a rare occurrence

If we expect the public to have any confidence in our system of justice we have to be willing to take action when the system breaks down. Unfortunately, that didn't happen  here.
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