Friday, January 13, 2012

Where do you get a lawyer for $22 per hour?

Listen to the story -

Waco – McLennan County Commisioners Court hired a lawyer Named Virgil Bain to be their Associate Judge.


They didn't set his salary level when he accepted the job.

The job?

Inmates accused of crimes must be charged before a “magistrate” within 48 hours, or they must be set free.


Some of the Justice Courts of the County refuse to go to the jail to make arraignments and set bonds on accused offenders.

Judge Raymond Britton did the job for 4 years, but he was forced to resign when it came to light that he holds municipal judships in three cities and the Legislature acted to require that an appointed magistrate must be admitted to the State Bar and licensed to practice law.

What do to?

The Commissioners Court proposed to pay Judge Bain a salary of $32,000 per year, plus travel expenses to go from his office to the jail, if necessary.

Judge Britton did the job for $24,000 per year and never collected any travel expenses. He has a video-conferencing machine on his desk at a remote office.

Where is the machine today?

It's still on his desk.

Further complication: Judge Bain isn't so sure he wants to work for $22 per hour. He's a lawyer with an extensive practice. To earn his $22 per hour charging defendants and setting their bond, he will have to give up all criminal practice.

Listening to an audiotape of the Court session held last week, one gathers that Commissioners Ben Perry and Lester Gibson are in favor of paying a lower salary until they see if the county is getting the desired result – that of keeping the jail population low, the offenders charged and their bond set, and everything running smoothly.

Commissioner Kelly Snell is concerned about paying a travel expense voucher for someone to come to work at his own office.

County Judge Jim Lewis seems to be keen on buying a new video-conferencing machine, something that Commissioner Snell is adamantly opposed to doing when there is a perfectly good machine sitting on the desk of a former employee – albeit an employee who was forced to resign.

The bottom line: McLennan County officials seem hell bent on getting offenders released from their lockup as quickly as possible through a surety bond – once they've been properly charged and bond has been accordingly set.
Who is authorized by statute do perform this task?

According to the Texas Code of Criminal Procedure, it's a thundering herd of black-robed individuals sitting on benches both lofty and lowly:

A. Code of Criminal Procedure article 2.09
Code of Criminal Procedure article 2.09 provides that
[e]ach of the following officers is a magistrate within the meaning of this Code: The justices of the Supreme Court, the judges of the Court of Criminal Appeals, the justices of the Courts of Appeals, the judges of the District Court, . . . the county judges, the judges of the county courts at law, judges of the county criminal courts, the judges of statutory probate courts, . . . the justices of the peace, and the mayors and recorders and the judges of the municipal courts of incorporated cities or towns.

According to Justice of the Peace Kristi DeCluitt, the task of charging an offender is a fairly intricate process, one that bears a lot of responsibility.

First, the judge must make sure the affidavit of probable cause is correctly crafted. Should there be any procedural or legal errors evident, the defendant must be released immediately.

Failure to do so will only result in a defense lawyer challenging the arrest procedure, the charges, the indictment and ensure the certainty that a trial judge will suppress the evidence to be used at trial – unless a court-appointed attorney is able to persuade the defendant to plead guilty, just haul off and give up his rights to a trial, for the state to prove each and every allegation, to confront his accusers and witnesses who appear against him – and ultimately to appeal the verdict if convicted.

There are a lot of big ifs in that proposition, no?

Secondly, the magistrate must be very certain that there are no other warrants or holds, federal, state or local on the defendant. To set bond and release a defendant who is wanted on a federal charge is a total no no – puts the charging magistrate in a bad odor with the federal officers of the Court.

In addition to that consideration, is there an immigration hold on a defendant. Are they to be held for Immigration and Customs Enforcement investigation or for the U.S. Attorney to pursue a case for illegal entry to the United States?

It's a touchy issue in today's politically charged atmosphere. Let an illegal immigrant go on to kill an otherwise law-abiding citizen and it could be very difficult to get yourself re-elected, you see.

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