Performance Guidelines in Criminal Cases (2)

Last week we saw that the State Bar Board of Directors adopted the "Performance Guidelines for Non-Capital Criminal Defense Representation" early in 2011. The Guidelines provided a standardized "how to" of potential courses of action and best practices for every stage of a Texas state criminal proceeding. That is, from arrest through direct appeal. The Guidelines were detailed. However, they were not designed to micromanage the competent defense of a criminal case. Rather, the Guidelines created a framework through which criminal defense attorneys could deftly exercise their professional judgment. And just as importantly, the Guidelines were not designed as disciplinary rules. They were not designed as hard-line standards of practice when evaluating ineffective assistance of counsel claims. Instead, the Guidelines were a compilation of tools for use by defense attorneys, judges, and county officials to improve our criminal justice system.

Performance Guidelines in Criminal Cases

Criminal defense lawyers face unique problems and challenges. The criminal law is complex. Criminal procedure is complex. Every case presents legal and factual problems that can only be solved through time, effort, and expense. Unlike prosecutors, court-appointed defense lawyers have no easy access to investigators, experts, or even the fact witnesses.

The State Bar Board of Directors adopted the "Performance Guidelines for Non-Capital Criminal Defense Representation" in January 2011. The Guidelines are a step-by-step guide to what lawyers should do in defending criminal cases. They remind attorneys that certain actions should be considered in every case regardless of the funding issues, or problems in local practice. Similarly, the Guidelines remind judges and county officials that lawyers have work to do and steps to take and that defenders must be paid no matter how constrained counties feel about their budgets.

The right to counsel is the most basic guarantee of our criminal justice system. Without a good lawyer, innocent citizens may be convicted of crimes they did not commit and people who need another chance may never get one. The Guidelines encourage defense lawyers to perform to a high standard of representation and to promote professionalism in the representation of persons accused of crime.

Going Straight for the Heart

My day in court went straight to the heart. The docket was short with the typical Monday morning assortment of expunctions, non-disclosures, and civil matters. If you've hung-out reading my ramblings over the years, you've learned the courthouse is a daunting place. Not many up-lifting things happen as lawyers argue over motions, plea bargains, damages, and the like. However, this morning was remarkably different. Two babies were up for adoption and an army of family accompanied the soon-to-be parents.

I speculated the couple was unable to conceive children on their own. I don't know this for sure, but the way mom and dad explained to the judge the wonder and excitement of the moment lead me to speculate as such. Some old neighbors of mine were in the courtroom taking pictures and beaming, as well. The judge got hugs and kisses. The lawyer got some, too. I was just inches away from the action and felt myself holding back a desire to jump in and get some love, too, just for being there.

It was a wonderful moment, even for a casual observer. I don't recall the last time I witnessed so many people in one place, happy, and looking toward the future with so much anticipation. I knew those young children were in the best of hands. I knew the couple's dream of a family had just come true. The judge thanked me for patiently waiting my turn as he took his place in photograph after photograph.

It was a great moment in court this morning. The moment went straight to the heart. I was glad to have been a part of it.