The Fair Defense Act describes a "rotation system" for appointing counsel defense counsel in a fair and neutral manner and the Act is structured to make this rotation system the standard default method for appointing counsel.   However, the Act also permits the judges in a county to choose instead to appoint counsel using either a conventional public defender program or an "alternative program" devised by the judges.  While the FDA deliberately gives judges the flexibility to devise an "alternative program" instead of using the default rotation system, the Act also spells out nine distinct requirements any such "alternative program" must meet.  These requirements are essentially safeguards designed to ensure that any new alternative programs will actually result in better more consistent indigent defense procedures rather than merely recreate the flawed patchwork procedures of the past.

" An alternative program plan for the felony courts must be approved by 2/3 of the felony judges; A plan for the misdemeanor courts must be approved by 2/3 of the misdemeanor judges.

" The plan must be approved by the Commissioners Court, if it will obligate the county by contract or by the creation of new positions that cause an increase in expenditure of county funds.

" The plan must be approved by the presiding administrative regional judge.

" The plan must ensure that appointments are allocated among qualified attorneys in a manner that is "fair, neutral, and nondiscriminatory."

" The plan must ensure that appointments are "reasonably and impartially allocated" among qualified attorneys.

" The plan must ensure that attorneys who are appointed meet a county-wide set of written, objective qualification standards approved by the judges. There should be a separate set of qualification standards for misdemeanor and felony courts. There may be additional qualification tiers tailored to the seriousness of the case or to other relevant expertise (e.g. ability to speak the defendant’s language, mental health expertise, etc.).

" The plan has to provide that the individual attorneys eligible to accept appointments in any court must be approved by a majority of the felony or misdemeanor judges.

" The plan must comply with applicable ethics rules.

" The plan must state the financial standards and procedures to be utilized by all the courts in the county for determining who is indigent. These standards and procedures must apply to each defendant in the county equally, regardless of whether the defendant is in custody or has released on bail.

September 20, 2001

Equal Justice Center