The Quality of Texas Justice

One of the first duties of government is to establish justice--impartial, independent justice that does not grant favors or privilege one party above another, justice that preserves a government of laws and not of men. One of the first duties of public officials is to ensure that such impartiality is maintained. Unfortunately, in the state of Texas, both the judiciary and the public officials who oversee it have failed in this fundamental task, sacrificing to political interest the principle of equality before the law.

As in many states, judges in Texas are elected. In fact, Texas is one of only seven states where judges declare a party affiliation, and judges in Texas may accept limited contributions to their campaigns. Curiously, however, Texas specifically allows its judges to solicit and receive campaign contributions from lawyers and parties in cases currently appearing before them. And according to a recently filed federal lawsuit by the consumer-advocacy group Public Citizen, Texas law has no requirement that judges recuse themselves when faced with such obvious conflicts of interest.

The lawsuit, which was filed April 3, charges that Texas' system violates the Fourteenth Amendment guarantee of due process by giving clear legal advantages to parties and lawyers who can afford to contribute to judicial campaigns. It charges that the "inevitable result" of such a system is to deprive Texans of their right to have cases decided by courts impartial in fact as well as appearance. Someone has to pay for the television ads and political consultants vital to a successful race, and since judges must raise money to win their seats and to retain them, Public Citizen notes, "no judge can break free of the appearance of being beholden to contributors."

Although no one can prove that political contributions changed the decision in any given case, it hardly stretches the imagination to believe that contributions do have an effect in general; after all, campaign contributors have to believe that their money is buying results if they are to be persuaded to contribute again. Judges might favor contributors out of conscious gratitude or out of unconscious affinity for their political friends. According to a survey conducted for the state Supreme Court, 78 percent of the Texas public thinks contributions influence decisions, and 86 percent of Texas judges agree. Among Texas lawyers, 99 percent say that contributions have at least some influence on the decisions of what should be courts of law. The nine members of the state Supreme Court themselves raised $11 million in the last election. The five lawyers who joined the Public Citizen lawsuit because they were solicited for contributions understand the pressure that such influence can exert.

The influence of contributions becomes even more pernicious given the power Texas judges have over the appointment of counsel. Unlike many states, Texas does not have a state public defender's office; instead, courts appoint individual lawyers to take the cases of defendants too poor to pay themselves. These courts have been widely accused of appointing inept, inexperienced or indifferent lawyers to the demanding task of criminal defense, a practice that is especially worrisome in capital cases where the client's life is at stake. Judges also have the power to decide how much the appointees, including campaign contributors, will be paid.

Statistics on corruption are by nature difficult to gather. However, with a system that generates almost by design a tangled web of conflicts of interest, we should not be surprised by the legal horror stories that result. One Texas defendant was assigned as his defense lawyer a former district attorney who had once prosecuted him; furthermore, the attorney was known to have been a cocaine addict, the information having come to light after he was involved in a drug-influenced traffic accident on the way to a fundraiser for the judge who would later appoint him as defense counsel. The attorney was also $90,000 in debt to the IRS and suspected of embezzling funds from the district attorney's office; as a result of his appointment he was eventually paid almost $90,000.

The danger caused by improper selection of defense counsel is heightened by the reluctance of appeals courts in Texas to grant new trials to defendants whose court-appointed lawyers were incompetent. In three cases, Texas courts have upheld convictions in death penalty cases where the defense lawyer fell asleep during the trial. The trial judge ruled that the Constitution may guarantee the right to a lawyer, but it "does not say the lawyer has to be awake"; this judgment was affirmed, although not in so many words, by the highest criminal court in the state. Without a meaningful check on their lawyer's incompetence, poor defendants in Texas are truly thrown on the mercy of the court.

In the midst of such impropriety (or, at the very least, the semblance thereof), where is Gov. George W. Bush, the steward of the Texas justice system? Unfortunately, Bush has not taken significant action to maintain the system's integrity.

Bush's position on the issue is illustrated by a series of events that took place last summer. A Texas state representative had offered an exceedingly modest bill to the legislature that would have allowed counties to choose whether to continue with the current system, in which judges appointed defense lawyers, or to set up public defender's offices of their own. The bill would have also have created a county-by-county list of minimally qualified capital defense attorneys from which the judges could choose. (One index of the state of the Texas legal system is that another provision of the bill would have guaranteed suspects the right to meet with a lawyer within 20 days--almost three weeks--of their incarceration. In most areas of the U.S., the accused rarely spend 72 hours in jail before they receive a lawyer.) Both houses of the Texas legislature voted unanimously--unanimously--in the bill's favor, and the overdue reform seemed likely to become a reality.

Before the bill reached the Governor's desk, however, Texas judges, aghast that they might lose the valuable (and perhaps profitable) ability to choose the lawyers themselves, used their full political influence to get the bill killed. As a result of the judges' lobbying efforts, many members of the legislature, including one of the bill's original co-sponsors, feigned ignorance of the bill's provisions and dropped their support for the measure. Bush agreeably followed with a veto, saying that the changes were too "drastic" and judges were "better able to assess the quality of legal representation" than county officials. He also stated that the requirement that the state release suspects who had not been assigned a lawyer after 20 days in jail "poses a danger to public safety."

Before one can "restore honor to the White House," one should first restore honor and fairness to the state judiciary. The judicial system in Texas, taken as a whole, uniquely disadvantages poor defendants by depriving them of fair representation at trial, of fair chances on appeal, and of fair treatment at all levels by judges to whose campaigns they cannot afford to contribute. Yet unless a court victory forces a change in the judicial process, Texans may have to wait for public officials who have the resolve to overcome political interests and stop the sale of justice to the highest bidder.

Stephen E. Sachs '02, a history concentrator in Quincy House, is associate editorial chair of The Crimson.