Defendant's Choice

• Author: Lorelei Laird
• Pages: 18-19

National

Pulse

see why posting the video ha s

anything much to do w ith that,”

he says.

RISKY BEHAVIORS

Hyman is opposed to bad

Samarita n laws—on practical

grounds mor e than philosophic al

ones. In a 2006 Texas Law Review

article, he ana lyzed a study

comparing documented resc ue

attempts to nonrescues—situ ations

where someone failed to rescue

a stranger in distre ss, in circum-

stances in which it would not

have been risky to do so.

He found zero nonrescues or

prosecutions in the three st ates

with a duty to rescue. I n two of

those states, Hyma n found that

the laws didn’t a ect rate s of

accidental death or nonresc ue.

But the real story wa s that

Americans a re far more likely to

die trying t o be heroes than for lack

of heroes. Using news reports and

data from organiz ations that give

awards to rescuers, he concluded

there were 740 rescues for every

nonrescue.

Indeed, central Florida prov ides

a case in point. Acc ording to an

Orlando Sentinel story, 10 days

after Dunn’s death, 19 -year-old

Nic Berry of New Smyrn a Beach

jumped into a canal t o rescue a

stranger he’d heard screaming.

Although B erry and the un named

man surv ived, Hyman reported

that would-be rescuers are f re-

quently not so lucky. Every year, he

concluded, at least 78 America ns

die trying t o rescue another person.

But only about one American dies

of nonrescue. Put another way,

every year would-be resc uers die

at least 65 times more often t han

victims of nonresc ue.

For that reason, Hyman thi nks a

law requiring rescue att empts could

lead to more deaths. If legislat ures

are going to pass laws, he’d prefer

that they provide for rescuers. “ The

problem is not, based on the data

that I collected, t hat Americans are

unwilling to re scue one another in

nonrisky circum stances,” he says.

“The problem is that America ns are

too willing t o rescue one another in

very risky ci rcumstances.” Q

The Docket

18 || ABA JOURNAL JUNE 2018

Defendant’s Choice

Texas county experiments with allowing indigent

clients to choose their own lawyers

By Lorelei Laird

In early 2015,

attorney Gina Jones

became too popular

for her own good.

As a private cri mi-

nal defense lawyer,

Jones might normally welcome new

business. But on Feb. 2, 2015, her

home jurisdiction of Comal C ounty,

Texas, started to e xperiment with

how it handles indigent defense.

Rather than appointing coun sel

according to its old “wheel” sy stem—

in which the next lawyer on t he list is

appointed—the county gave clients a

choice of any court-approved lawyer.

Within six weeks , dozens of them

chose Jones. In the fi rst few weeks,

she says, her o ce wa s receiving two

or three appointments every day.

Project organizers s ay it’s u nclear

why she was, as she put it, the “fl avor

of the month,” although courtroom

successes and positive reput ation

might have played a role.

Jones was soon overwhelmed with

work—and because of the low pay

for court-appointed cas es, she also

saw a substantial drop in i ncome.

Eventually, she had to take herself

o the felony appointments list.

“I’m doing this because I like

to fi ght for people that can’t fi ght

for themselves,” says Jones of the

Canyon Lake, Texas, o ce of Jones

Sullivan. “But I can’t help everyb ody.

It’s just impossible.”

If there were some kinks to work

out in Comal County, a fast-g rowing

area between Sa n Antonio and

Austin, that could be be cause it

was the fi rst jur isdiction anywhere

in the United States to prov ide

defendants this choice.

The Client Choice program in

Comal County wa s organized by the

Texas Indigent Defense Commission,

a state agency dedicat ed to improv-

ing such defense without driv ing up

costs.

A year of data showed that it

worked—clients had better outcomes

and felt more listened to. The county

liked the system enough that it st ill

uses it today.

“It was a successful proof of c on-

cept,” says Edwin Colfa x, grant pro-

gram manager at t he commission.

“We didn’t identify any … pragmatic

obstacles to implementing it, and

we didn’t observe any harm s.”

REJECTION OF A RELATIONSH IP

Giving indigent clients a choice

of lawyers is stand ard practice in

Britain, but it’s nearly unheard of i n

the United States. Cour ts here have

rejected attempts t o make client

choice a right in indigent defense.

In 1983, the U.S. Supreme Court

held in Morris v. Slappy th at indi-

gent defendants don’t get a choice

because they’re not entitled to a

“meaningfu l relationship” with

appointed counsel. In the same

year, the 7th U.S. Circuit Cou rt

of Appeals at Chicago a nticipated

Jones’ problem, holding that clients

would “paralyze the s ystem by all

fl ocking to one lawyer.”

Nonetheless, the concept was

backed in a 1993 law review a rticle,

“Rethinking Indigent Defen se,” by

law professors Stephen Schulhofer

of New York University and David

Friedman of Sant a Clara University.

They argued that client choice could

remove some perverse incentives in

existing indigent defense sy stems. It

might also improve the relationship

between attorney s and clients, they

suggested.

In 2010, the Cato Institute pub-

lished “Reforming Indigent Defense,”

based on the earlier ar ticle, which is

how it came to the attention of James

Bethke, former executive d irector of

the Texas commission. He decided

to test its theor y, enl isting help from

Colfax as well a s Norman Lefstein,

a professor at Indiana University’s

Robert H. McKinney School of L aw