St. Mary's Law Journal


Richard L. Huff


One of the primary goals of a democracy is equality before the law for all of its citizens. To this end, in 1963, the Supreme Court held that states must provide counsel to indigent defendants, at their own expense, in all felony trials. Although other jurisdictions have chosen a defender system of criminal attorneys hired by the local government to meet the Supreme Court’s mandate, Bexar County, Texas, utilizes a system of assigning members of the local bar to defendants in rotation. Contrary to the prevailing view, it is submitted that Bexar County's assigned counsel system provides adequate representation for indigents. Although the federal courts have vacillated on what constitutes adequate representation, several jurisdictions have recently adopted the standard that an indigent defendant’s representation must be at least equivalent to the representation provided by a retained criminal attorney. A survey of Bexar County cases indicates that defendants with retained attorneys are more likely than assigned counsel defendants to have their cases favorably dismissed, to be acquitted on a plea of not guilty, and to be granted probation. Although the disparity in disposition between assigned and retained counsel defendants is significant, another statistic may hold the explanation: pre-trial detention. Data collected from the Bexar County Clerk’s office demonstrates that defendants on bail, whether represented by retained or assigned counsel, have a much better chance of not being convicted and going to prison, not being convicted with probation, and being either acquitted or having their case dismissed. Additionally, the fact that only 25 percent of retained counsel defendants and 75 percent of assigned counsel defendants are in pretrial confinement is a strong indication that pre-trial status may better explain the disparity in disposition between assigned counsel and retained counsel defendants than inadequacy of representation through the assigned counsel system. As such, the significance of pretrial detention in the criminal justice process leaves much study yet to be done.


St. Mary's University School of Law