Part I: State of the Judiciary

On March 6th, Texas Supreme Court Chief Justice Wallace B. Jefferson presented his State of the Judiciary speech before the 83rd Texas Legislature in Austin. Disputing will publish the entire speech in three parts.

Here is Part I:

Governor Perry, Governor Dewhurst, Speaker Straus, members of the Legislature, Presiding Judge Keller and all of my judicial colleagues throughout Texas. This presentation is entitled “State of the Judiciary,” but as I began to think about the message I would like to convey, it occurred to me that the challenges we face are much larger than whether our courts are funded adequately. The question is not how is the Judiciary? We must ask instead whether our system of justice is working for the people it has promised to serve. Do we have liberty and justice for all? Or have we come to accept liberty and justice only for some? So let’s not limit our inquiry to whether the judiciary is healthy. Courts exist not to perpetuate the judicial branch for its own sake, but to ensure that the conflicts human beings encounter, whether criminal or civil, are adjudicated in a neutral forum, at an efficient price, producing fair outcomes.

Basic Civil Legal Services

For those who can afford legal services, we have a top-notch judicial system. Highly qualified lawyers help courts dispense justice fairly and efficiently. But that kind of representation is expensive. A larger swath of litigation exists in which the contestants lack wealth, insurance is absent, and public funding is not available. Some of our most essential rights –those involving families, homes, and livelihoods –are the least protected. Veterans languish for months before their disability, pension, and educational benefits arrive. As a result of the recent financial crisis, lower-and middle-income homeowners and tenants face foreclosure and eviction. Ever-increasing numbers of consumers and small businesses have filed for bankruptcy. And few can afford a lawyer to guide them through these crises.

Nearly six million Texans qualify for legal aid. Yet our state’s legal aid programs meet but 20% of the needs of indigent Texans, forcing many to go it alone in our courts. In South Texas, 2.6 million people qualify for legal aid. That means that there are 21,000 potential clients for each lawyer employed by the region’s main legal aid office.

It is clear to me, then, that we must fund our state’s legal aid programs. Fortunately, for our great state, it is clear to you, too. When we told you that the largest source of funding for these programs, interest on lawyers trust accounts, plummeted 75% in the last 5 years, you came to the rescue. The 81st Legislature appropriated $20 million in general revenue for the 2010-2011biennium. Even as the fiscal crisis hit Texas hard, the 82ndLegislature provided $17.5 million for this biennium. And in this Session, the House and Senate have indicated general-revenue funding will remain at these levels. On behalf of desperate Texans who have no other options, I thank you for your continued support of basic civil legal services. Without your assistance, the situation would be utterly hopeless.

The legal profession is doing its part. Texas lawyers donate about 2.5 million hours of free legal services to the poor each year. In the Supreme Court, we have had tremendous success with a pro bono program that matches some of our pro se litigants with appellate lawyers who have donated their expertise to the cause of justice. More than 300 lawyers have signed up to participate, and we have referred dozens of cases to that program since 2007. Several of our intermediate appellate courts have adopted similar initiatives. But even if we were to require every Texas lawyer to represent at least one indigent client, we would serve less than 40% of the poor who seek help. We must do more, not to preserve the judiciary, but to keep the courthouse doors open for all of our neighbors.

Indigent defense

I have been talking about basic civil legal services. But on the 50-year anniversary of Gideon v. Wainwright, I cannot resist a few words about our criminal justice system. Gideon, charged with breaking and entering in Florida, asked for a lawyer; was denied counsel; and then was convicted. While in prison, he scrawled a petition on prison stationery, and asked the Supreme Court to reverse his conviction. In that famous case, the Court concluded unanimously that the Constitution guarantees a defendant the right to counsel in criminal proceedings. After retrial, with appointed counsel, Gideon was acquitted.

And this brings up my second point. To sound Gideon’s trumpet in Texas, we must insist that criminal defendants have qualified counsel who are equipped with the time and resources to mount a meaningful defense. Texas ranks 48th in per capita funding for indigent defense. As alarming as that figure sounds, it masks extraordinary improvements implemented here in just a few short years. The Texas Indigent Defense Commission, chaired by Presiding Judge Keller, has developed innovative programs to increase delivery of indigent defense services. With the Legislature’s financial help, thousands more Texans now receive constitutionally guaranteed defense representation.

A prime example is the Regional Public Defender Office for Capital Cases, headquartered in Lubbock. The pool of lawyers qualified to handle these complex cases is quite thin and, until recently, local communities had few resources to pay for these incredibly costly matters. This regional office, serving more than 155 counties, both ensures quality legal representation for the defendant and mitigates the expense a capital case inflicts on the county.

The Harris County Public Defender office opened two years ago through a grant from the Indigent Defense Commission. Among other responsibilities, that office represents juvenile clients who are also victims of human trafficking. And Bell County developed a program, with assistance from the Commission, that provides specialized representation and legal support services to defendants who have mental health concerns.

The most innovative project is happening right now in Comal County. The Commission gave the county a grant to fund a pilot project that will allow indigent defendants to select the qualified attorney of their choice, rather than receiving attorneys appointed by judges or court administrators. With this idea, new for the United States but standard practice in England and elsewhere, defense lawyers will be more directly aligned with the interests of their clients. Comal County will work with indigent defense experts to assess the current system and to recommend qualitative and quantitative improvements.

A caveat. As with basic civil legal services, funding for indigent defense does not currently meet the demand. State funding through the Commission covers only 15 percent of the total indigent defense expenditures in Texas. For that reason, the Commission’s appropriations request seeks to close the funding gap, providing relief to counties by sharing the costs of indigent defense equally with county government. We have seen the Commission’s success in forging successful programs and partnerships with county governments. I encourage you to increase funding to the Commission so it can carry on this important work and ensure effective representation for all indigent defendants.

A final, but important, word about our criminal justice system. If innocent people are rotting in prison for crimes they did not commit, we certainly have not achieved justice for all. Michael Morton’s recent exoneration epitomizes the need to address the issue of wrongful convictions in Texas. He spent 25 years in prison, convicted of murdering his wife, until DNA evidence confirmed his innocence.

In the last 25 years, 117 Texans have been exonerated. Forty-seven were cleared based on DNA testing, more than any other state. Wrongful convictions leave our citizens vulnerable, as actual perpetrators remain free. And they leave us with the distinct impression that we today suffer from a systemic deficit in our collective approach to the way we decide how to administer criminal justice.

As in years past, I continue to recommend the creation of a commission to investigate each instance of exoneration, to assess the likelihood of wrongful convictions in future cases, and to establish statewide reforms. I appreciate the leadership of Senator Ellis and Representative McClendon in this area. I also appreciate the Legislature’s support of the innocence projects at our state’s four public law schools. Since 2006, the projects have helped identify and overturn ten wrongful convictions in our state. In many of these cases, the same investigation that cleared an innocent person also identified the actual perpetrator.

Chief Justice Jefferson‘s speech may be read in its entirety at Texas Courts Online.