Experts: Harris Co. taking risks with lawyer appointment system

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by By Mark Greenblatt / 11 News Defenders

khou.com

Posted on May 18, 2009 at 10:00 PM

Updated Monday, Oct 26 at 5:18 PM

HOUSTON --Judges in Harris County gave attorney Jerome Godinich more than $250,000 of work in each of the county's last two fiscal years, assigning him to work for defendants who can't afford their own lawyer.

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The defendants were charged with anything from drug possessions to capital murder.

But some national experts say the way Harris County judges select attorneys to do this kind of defense work raises serious questions.

"I regard it among the most flawed system of a major metropolitan area in the country," Indiana Law professor said.

What's at issue is attorney case loads. You see national and state laws agree that if you are charged with a crime, you have a right to an attorney, even if you can't afford one.

But here in Harris County, the judges select lawyers for the indigent, rather than an independent body. What's more? The 11 News Defenders have discovered no one seems to be minding the store from courtroom to courtroom in Harris County, allowing many attorneys to take on so many cases experts warn it may be endangering the rights of the accused.

"You have to care about it if you care about justice in Harris County," said Lefstein, who also used to run the public defenders office in Washington D.C. He says Harris County is the largest metropolitan area in the nation without a public defenders office.It also has a number of attorneys who exceed nationally recognized defense attorney case load limits developed bythe National Advisory Commission on Criminal Justice Standards and Goals with funding fromthe U.S. Department of Justice.

In fact, a KHOU analysis of Harris County data from fiscal years 2002-2009 reveals nearly all of the top earning attorneys, who each made more than one million dollars over that time period, also exceeded those national case load recommendations or nationally-recognized recommendations about capital crime case loads.

"The more you do and the quicker you do, sometimes the more slipshod you do it, the more you are rewarded," said Lefstein, who in addition to his position as director of the Public Defender Service for the District of Columbia, also served as an Assistant United States Attorney and as a staff member in the Office of the Deputy Attorney General of the U.S. Department of Justice. He also served as Chair of theAmerican Bar Association's Section of Criminal Justice in 1986-1987.

More recently, the National Right To Counsel Committee asked Lefstein to serve as a lead reporter for , "Justice Denied", released in April and detailing research on what it calls " thepressing indigent defense crisis in America."& #160;

The report had as honorary co-chairs former U.S. Vice President Walter Mondale and former FBI Director and former federal Judge William Sessions, who served as the chief judge of the United States District Court for the Western District of Texas.

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In relation to Harris County, Lefstein expressed concerns about the lack of any form of oversight regarding the workload an attorney can end up with as he accumulates appointments from court to court.

"It raises all kinds of risks," he said.

Take Jerome Godinich, who made $1.5 million since fiscal year 2002. In 2008 he had activity on at least 177 felony cases. However, the National Advisory Commission recommends taking on no more than 150 cases per year, with the attorney taking on no other kind of work or cases in any other court or on private retainer. But that very same year, Godinich also had activity on at least 6 capital murder cases.

National experts like Lefstein and others say an attorney should handle no more than 3 capital murder cases in a year, and nothing else.

"He's running an enormous risk," Lefstein said.

KHOU attempted to contact Godinich for comment numerous times without any response from him. So we went to the Harris County Courthouse, where we found him.

KHOU: I just wanted to know- do you think your case load had anything to do with why you've missed some important filing deadlines?

Godinich: No.

You may remember Godinich's name, as the Houston Chronicle previously reported that he missed crucial filing deadlines in not one, but two death penalty appeal cases he was involved with in the last four years.

In a recent written statement to KHOU, Godinich claims he was not at fault for the lapses and in one case blames the second attorney appointed for missing the deadline. In the other instance, he said faulty filing equipment at the courthouse was at fault. In addition, he says no late filing has ever been due to his case load and that he has never accepted a case and not devoted adequate " time, resources, and expert review."

That said, a March ruling from the 5th Circuit Court of Appeals seems to criticize Godinich for waiting until the last minute to attempt to use that county filing machine. The appeals court also says that Godinich already knew the machine was broken.

The ruling states: "counsel was aware of the deadline, and had months in which to complete the petition, but waited until the very last minute on the due date to complete work on it when the computer failed."

Further, the ruling notes that even with a broken filing machine, the attorney could have used the court's electronic filing system to get the appeal in on time.

But other lawyers within the Harris County appointment system refute the validity of the National Advisory Commission's recommended limits.

According to Harris County data, Attorney Skip Cornelius made nearly $1.9 millionfrom court appointments in the last 8 years and also worked with case load amounts well above the national guidelines.

However, he says the recommended limits are too simplistic and says he works more than nearly any other attorney in the county. Hence he believes he can handle the large case load.

"You can do all the statistics you want but it depends on how hard the lawyer's willing to work," Cornelius said. Cornelius, who just earned the "Lawyer of the Year" honor from the Harris County Criminal Lawyer's Association, was also the only court-appointed attorney who voluntarily interviewed with KHOU for this story.

Cornelius says he works 70 hours a week and stands by his reputation.

"You can check with the people that clean this building. I am the last one to leave every night," he said.

As a result, he disagrees with using the National Advisory Commission's guidelines as the sole measure of if an attorney can handle the work effectively.

"Right now I have 6 capital cases, only one of those is there even the potential the state might seek death," he said. "Let me tell ya, I got time to prepare my cases. Ask around. See if I'm not prepared on my trials."

Preparation would be key, because our analysis shows fiscal years like 2006, when Cornelius had activity on at least 5 capital cases, 18 appeals, and 162 felony cases. Also, Cornelius admits to working 13 capital cases during the 12-month period beginning in February of 2002, although he says he was not in trial on all of those cases. In addition, he says the majority of the cases the state did not intend to seek the death penalty and points out non-death penalty cases require less work than those where the death penalty is sought.

But some are still skeptical.

"I've never seen an attorney capable of handling that entire workload and giving effective representation in every single case," said David Carroll, research director for the National Legal Aid and Defender Association.

"You start cutting back on certain things, perhaps you don't keep the client as well informed," he said.

But Cornelius says that's not always the case for all attorneys, and says it certainly does not apply to him.

"I don't care what they say, what these professors say or whatever, they never 'tried' jack," Cornelius said, referring to criminal cases.

But there's something else about the way Cornelius prepares for his capital murder cases that may help him take on more.

You see, when he is assigned a capital murder case, Cornelius says he assumes from the beginning that the prosecutor will not seek the death penalty. Again, that assumption can mean less work for a defense attorney.

"See the presumption is it is a non-death case. The default position is a non-death case," Cornelius said.

The only possible problem?

"Capital murder cases take an extraordinary time to prepare," Judge Michael McSpadden said. McSpadden said he expects any attorney he appoints to a capital case to assume from the beginning that the prosecutor may, either at the beginning or at some point,seek the death penalty. Hence, McSpadden expects the appointed consul to work on the case with that belief unless the prosecutor issues a notice they will not seek death as a punishment.

"You work as if it's going to be a death penalty case" McSpadden said. "You work hard on it."

KHOU asked Cornelius about it:

KHOU: Folks we talked to say (you should assume the state will seek death, until they say otherwise in writing) because you owe it to your client because you may end up facing this kind of prosecution.

Cornelius: Well I don't know who told you that but I don't even understand that logic.

Cornelius maintains the defendants he has represented in each and every capital murder trial have received unusually strong representation, with or without a second attorney appointed in what he believes will be a non-death case.

22 years ago, Judge McSpadden saw a multitude of problems with Harris County's system of providing lawyers for those who could not afford one.His solution?

"I decided to form a mini public defender system in my own court,"said McSpadden.

He now has four attorneys he "hired" full-time in his court to represent the indigent. He says that way, he can provide at least some oversight and keep track of their workload and performance.McSpadden says the attorneys he hired even office with him at the Court, and says you can call the court's phone number to reach them.

Law professor Lefstein, though, sees a conflict.

"Lawyers will hold back in that situation," Lefstein said. "They will not push on behalf of their clients simply because they are beholden to the judges for their appointments."

In fact, that new report he helped author from the National Right to Counsel Committee recommends that states should establish a statewide, independent, non-partisan agency headed by a board or commission so that defense counsel can be appointedwithout any influence from presiding judges.

The report notes the first of the American Bar Association's Ten Principles of a Public Defense Delivery System calls for "the selection, funding, and payment of defense counsel (to be) independent."

KHOU asked Judge McSpadden about the potential conflict in his court.

KHOU: If I know I want to keep my job in your court, am I going to strenuously 'object', or say the judge really messed up?

McSpadden: No they wouldn't. That would be a problem.

But our analysis shows possible problems are not limited to just the felony criminal courts.

According to county data, Attorney Glenn Devlin showed activity in the Harris County juvenile courts including at least 477 delinquency cases in 2008. The N.A.C.'s recommended limit is 200.

Devlin originally declined an on-camera interview with KHOU on the subject, but we caught up with him outside his law office.

KHOU: With your case load do you think you can really do an effective job representing everyone?

DEVLIN: Yes I do.

Harris County Court data also reveals Devlin made more than $1 million since 2002 from court-appointed work, with nearly 40 percent of that money coming from the court of Judge John Phillips. Phillips was Devlin's former law partner. Devlin has also served as Phillips' campaign treasurer.

Despite additional attempts to interview both men, neither Devlin nor Judge Phillips has responded to KHOU's questions on this subject.

Finally, Judge McSpadden says after KHOU began asking questions about case loads, he asked his staff attorneys how they felt about the issue. He says one responded by saying that indeed he felt "stretched thin" by his present number of appointments. As a result, McSpadden says he now plans to hire an additional, fifth attorney to work oncases in his court, to spread the workload out.

McSpadden also says he would welcome some kind of oversight for court appointments in Harris County. He suggests what he thinks would be a simple and likely low-cost solution that would help judges.

He proposes Harris County come up with a system, from already existing court data, to inform judges of how many cases each attorney currently has pending across all Harris County courts, before judges make the appointment. He sayssuch information would allow judges to make better appointmentchoices.

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