Joshua Johnson, Yale College '06

When I began my nine-week internship with the Fair Defense Project of the American Civil Liberties Union (ACLU) of Texas, I was surprised to learn that my home state did not have a statewide public defender system. Each county in Texas is instead responsible for developing its own standards for appointing attorneys to indigent defendants, and as one might expect, this system has led to wide disparities in the quality of justice delivered in different parts of the state. Some counties — mostly those that have been sued in the past over their former unconstitutional attorney appointment systems — are actually quite good about appointing lawyers to poor defendants who request counsel. Other counties, however, are quite reluctant to spend the money necessary to fulfill their constitutional obligation to appoint lawyers to indigent defendants.

In 2001, the Texas legislature attempted to improve the quality of indigent defense in the state by passing the Fair Defense Act. Before the Act was passed, judges were often given free rein to appoint anyone they wanted to defend individuals who could not afford to retain their own attorneys. Cronyism was the result, with judges assigning their golfing buddies and campaign contributors to indigent defendants. The Fair Defense Act put an end to this unfair system by mandating that each county adopt uniform procedures for the appointment of counsel that would apply to each judge in the county.

Furthermore, the Act imposed several additional requirements on the counties, all of which were intended to secure an indigent defendant’s Sixth Amendment right to counsel. The Fair Defense Act was certainly a promising piece of legislation, but funding issues have hampered its enforcement. While the Texas legislature placed new obligations on the counties, it did not allot much new money for indigent defense. As a result, most Texas counties are forced to shoulder about 90 percent of the costs for appointed attorneys on their own. Budgets are tight in every county, and some county officials and judges try to save money by finding creative but illegal ways to discourage indigent defendants from exercising their right to court-appointed counsel. That’s where the Fair Defense Project comes in. Andrea Marsh, a Yale Law graduate and former Liman Fellow, founded the Project to ensure that indigent defendants’ rights are not abridged. The Project uses a multi-prong strategy in advocating for the rights of indigent defendants. The first prong is political: The Project lobbies legislators and prods recalcitrant county officials. The Project’s second line of attack is legal. Like many other public-interest law organizations, the Fair Defense Project uses impact litigation to expand the law and spur institutional change. For example, I did some data processing and reviewed a response to a motion for summary judgment in a lawsuit involving a man whose application for court-appointed counsel was denied. The Fair
Defense Project’s final tool is public education. One of the law students who was working for the Project this summer drafted a brochure for the general public that explains the importance of having an attorney when accused of a crime. During the last week of my internship, I also attended a strategy meeting to discuss how the Project could engage in a public awareness campaign regarding prosecutorial and judicial misconduct in one particularly troublesome county.

The Fair Defense Project is one of many public-interest projects that work out of the ACLU’s office in Austin, Texas. Actually, the building I worked in this summer is more of a house than an office. It has a garden and porch area in the front, and the dozen or so undergraduates and law students who interned for the ACLU of Texas this summer all worked in a space that we affectionately referred to as the “garden room.” The ACLU of Texas was an amazing organization with which to work. The Executive Director of the ACLU of Texas has transformed the organization from a small, disorganized affiliate into a major force in Texas politics. Aside from being extremely intelligent and dedicated, the lawyers and staff at the ACLU of Texas were also incredibly friendly and easygoing. The Director even joined the interns on our July tubing outing on the Guadalupe River.

My first task with the Fair Defense Project was summarizing depositions from a civil-rights lawsuit filed by the ACLU on behalf of several African-Americans who had been arrested in a drug bust in Hearne, Texas. Charges against most of the defendants in the drug bust were dropped after the state’s confidential informant gave contradictory testimony on the stand and then failed a subsequent polygraph test. Some of the defendants, however, pleaded guilty soon after their arrests and are still in jail today. It sickens me to think that many of these individuals may be innocent but nonetheless accepted the state’s plea offer because they were afraid that a jury would deliver a harsher sentence at trial. All the depositions I read were of the attorneys for the defendants accused of selling drugs, and my job was to spot evidence of ineffective assistance of counsel that we could later use to demonstrate the shoddy state of indigent defense in Texas.

Another project on which I worked this summer required me to become acquainted with the Texas Disciplinary Rules of Professional Conduct and the Code of Judicial Conduct, the ethics rules that apply to Texas lawyers and judges. The Fair Defense Project knew of a number of counties where prosecutors and judges were improperly encouraging, and sometimes downright pressuring, unrepresented defendants to plead guilty. This problem was most pronounced in misdemeanor courts, which makes sense in terms of the cost-benefit analysis done by most county officials. Every county faces a high volume of misdemeanor defendants, and since the consequences of misdemeanors are less serious than the consequences associated with felonies, hardly anyone pays attention to whether misdemeanor defendants who cannot afford lawyers are being appointed attorneys by the court. My job was to explore ways of bringing ethics complaints against the attorneys who had engaged in misconduct and to find avenues for obtaining advisory opinions declaring such conduct unethical. I produced a memo outlining the procedures for filing ethics complaints and requesting ethics opinions and also drafted a request for an advisory opinion from the State Bar’s Professional Ethics Committee. The draft request included a section discussing Disciplinary Rule 3.09(c), which states that a prosecutor in a criminal case shall “not initiate or encourage efforts to obtain from an unrepresented accused a waiver of important pre-trial, trial or post-trial rights.”

Not all of my projects this summer dealt with indigent defense. The Director wanted the ACLU of Texas summer interns to experience all aspects of life in a nonprofit organization, including the joys of fundraising. To raise money to pay for various intern events held throughout the summer, the interns thus decided to host a fundraising concert on Thursday, July 14. The concert was aptly named “Messin’ with Texas 2005,” and as the summer intern fundraising coordinator, I was responsible for soliciting sponsors and donors for the event. I had no previous experience with fundraising, and I must admit that at first I was rather apprehensive about asking other people for money.

In the end, however, we raised over $600 in sponsorships and donations alone, which is not bad considering that last year’s interns had failed to attract any donors and had to rely on ticket sales as their sole source of revenue. Preparing for the fundraiser was a huge task: We had to schedule bands, publicize the event through flyers and media advertisements, arrange refreshments, secure a venue, etc. Although I did not expect to spend so much time fundraising during my internship, I am glad I had the opportunity to help organize the event. It was a great experience and taught me an important lesson. No matter how noble your goals are, it is hard to get anything done without money. Fundraising is thus essential for a non-profit organization if it is to continue to fulfill its
mission and serve the public interest.

This summer I also had the opportunity to contribute to some of the projects on which my fellow interns were working, which gave me a taste of other issues that the ACLU was tackling. For example, I did some research regarding the Minuteman Project, which encourages U.S. citizens to patrol the U.S.-Mexican border for undocumented workers. The Minuteman Project started in Arizona, but this summer the Project’s leaders announced that it would be expanding into Texas. My job was to read through the Texas Penal Code and find provisions under which the Minutemen could be prosecuted if they engaged in the same illegal activities in Texas as they did in Arizona. Other highlights of this summer included a trip to the Texas Supreme Court to hear oral arguments on school finance, a weekly speaker’s series, and monthly luncheons hosted by the American Constitutional Society.

One day this summer stands out from the rest. All summer I had been hearing about the abuses of prosecutors in a certain county. A lawyer who works with the Texas Criminal Justice Coalition and collaborates with Andrea Marsh on the Fair Defense Project, suggested that I go to the County Justice Center and observe the proceedings. When I arrived at slightly after 8:15 a.m., the Justice Center was already packed with people. I was lucky to find a seat in the courtroom where I was told that the first appearance misdemeanor docket would soon be called. Around 8:35 a.m., a number of assistant district attorneys entered and began calling defendants to the front of the
courtroom. There was no judge in the courtroom at this time, and the prosecutors were wholly responsible for calling the docket. Very few of the defendants with whom the prosecutors spoke had defense attorneys, and the prosecutors immediately informed the individuals who had retained lawyers that they could not speak with defendants who were represented by counsel.

Since most of the defendants and prosecutors met at the courtroom’s counsel tables, I was able to overhear many of their conversations. All of the meetings followed the same basic pattern. The prosecutor would introduce himself and state that he was an assistant district attorney. Most, but not all, of the prosecutors advised the defendants of their rights, either by saying that the defendants still possessed “all of the rights [they] had at the time of arrest” or by giving the defendants a version of the Miranda warning.

The assistant district attorneys would occasionally warn defendants that they had a right not to speak with a prosecutor, but often this admonishment was omitted. After quickly running through these preliminary matters, the prosecutor would review the defendant’s case file, state the charges against the defendant, and advise the defendant of the sentencing range he would face should he go to trial and be convicted of the offense. The prosecutor would then offer the defendant a plea deal, which generally involved a fine, a sentence of probation, and the payment of court costs. If a defendant seemed hesitant to accept the offered plea deal, the prosecutor would tell the defendant that he could choose to hire an attorney or defend himself at trial. Only a few of the prosecutors also mentioned that the defendants could apply for court-appointed counsel if they were unable to afford their own attorney. Sometimes the prosecutors tried to pressure the defendants, saying things to the following effect: “Do you want to take the
plea offer and be done with it, or do you want to go all the way to trial on this?”

Over the course of the morning, I spoke with a few of the misdemeanor defendants. Most of the defendants seemed anxious, and hardly anyone appeared to know what would happen in the courtroom that morning. In particular, I remember a young Hispanic woman who was sitting next to me when I first entered the courtroom. She seemed nervous and wanted to know what charge I was facing. When I told her that I was merely an observer, she said that she was charged with assault but was hoping that the prosecutor would drop the charges so that she could return home to take care of her baby. This woman did not have an attorney and obviously had no idea what to expect from her meeting with the prosecutor. I wished that I could help her in some way, but not being a lawyer myself, I could not give her any legal advice.

What I saw in the County Justice Center is one egregious example of a phenomenon that is quite common in courtrooms across the country. Misdemeanor courts are often plea mills, with prosecutors and judges putting pressure on defendants to accede to a deal rather than “wasting the court’s time” by demanding a lawyer or going to trial. Without a doubt, some of the defendants probably appreciated the system I observed at the Justice Center. They could quickly accept the prosecutor’s offer, plead guilty, and move on with their busy lives. Other defendants, however, could clearly have benefited from a lawyer’s presence during their conversation with the prosecutor. Some of the defendants tried to plead their case to the prosecutor, perhaps unaware that their statements could later be used against them in court. Others may have pleaded guilty to crimes they did not commit simply to resolve their cases. The defendants also lacked attorneys to warn them of the possible collateral consequences of a criminal conviction, especially in terms of immigration status.

Before leaving the County Justice Center, I spoke with a young man who was waiting to have his court date reset. I introduced myself to the man and explained that I was an observer. The man responded by saying that all I would observe in that courthouse was “aggravation.” He then quickly added, “I just wish my lawyer wasn’t such a jerk.”
“Is your lawyer appointed or retained?” I asked.
“Appointed by the court. I guess I should have expected it with an appointed
lawyer, but…” The man sighed deeply. “I mean, the guy has a job to do, and this is my
life after all.”

These were the words of a man caught in the grips of a broken system, and as I look back on my summer, I realize that this conversation was a turning point. I left the Justice Center with a renewed conviction that attorneys have an important role to play in our society as advocates for the poor, the powerless, and the disenfranchised. As the young man’s comments painfully illustrate, lawyers often fail to live up to this responsibility, but this sad reality only means that other attorneys must work harder to pick up the slack. Everyone accused of a crime needs and deserves a competent lawyer. Our legal system is simply too complex for an individual defendant to face on his own. I plan to apply to law school this fall and hope to work on criminal law and
indigent-defense issues in my future career as an attorney.