Report: Attorney Appointment a ‘Pay For Play’ Arrangement in Texas County
In the 1960s, the U.S. Supreme Court ruled that all defendants have a constitutional right to adequate representation in the case Gideon v. Wainwright. Individual states were left with the decision of how to implement this new system, and most states allow judges to appoint public defenders from a rotational selection. But that system has not resulted in as random a selection as anticipated.
Sukhatme studied more than 29,000 cases in Harris County between 2005 and 2018. He examined the relationships between assignments, fees, and attorney bar records against data on elections and campaign contributions. The results showed that defense attorneys who donated to the appointing judges’ campaigns were assigned more cases and thus had higher earnings than other attorneys.
“What we find is shocking,” said the study, which appears in The Duke Law Journal. “While donor and nondonor attorneys appear similar in terms of their education and experience, on average, judges assign their donors more than double the number of cases they assign to nondonors.”
The system used in Harris County to assign legal representation to indigent defendants is the same as most other counties in the nation. So, the study suggests that this abuse is more widespread than in just this one county. It identified that the increase in appointments for attorneys only occurred with judges to whom the attorney made campaign contributions. In addition, these appointments cannot be based on the exceptional talent of the attorney, as the study shows that the clients of the donor attorneys on average were more likely to be convicted and received longer sentences.
The study goes on to make suggestions to circumvent this system, such as establishing an independent public defender’s office where judges do not make the appointments.
But whatever changes are made, Sukhatme believes the current system is not productive. “A system in which attorneys buy cases from judges runs counter to the common notions of legal ethics and justice,” the study aptly concludes.