Gideon’s Heroes

Honoring Those Who Do Justice To Gideon’s Promise

“I don’t think the system is fair.”

– Texas State Senator Rodney Ellis

THE PROBLEM: Henry Earl Clark was on his way to work at a bucket factory in Dallas, Texas, on August 11, 1999, when he was pulled over by police in a routine traffic stop. They arrested the 52-year-old African American on a two-year-old warrant for dealing crack cocaine. He sat in jail for six weeks before a court appointed him a lawyer – a former prosecutor – and a full three months before they realized they had the wrong man. The Henry Earl Clark they were looking for was 14 years younger, had a long criminal record, and looked much different.

The mistake cost the innocent Clark his job, his car and his home, and cost Dallas taxpayers $2,600 to house and feed him. The head of the National Sheriffs Association later told the Dallas Morning News that a routine fingerprint comparison – never requested by Clark’s lawyer, despite his client’s consistent protestations of innocence – “would have cleared it up immediately.”

THE SOLUTION: Texas State Senator Rodney Ellis knew that indigent defense in Texas was in sorry shape. He knew that judges its 254 counties operated their courtrooms as “little fiefdoms,” often appointing lawyers to criminal cases not on the basis of qualifications, but because of political connections and contributions to the judge’s reelection campaign. He learned that defendants could spend up to nine months in jail waiting for a lawyer to be appointed.

A staff aide whose sister worked for the Los Angeles Public Defender did some research and helped him draft a modest bill to speed up appointment of counsel and set some statewide standards for quality, but it went nowhere. One day in 1998, Reverend Jesse Jackson came to town to protest Texas’s execution spree – most recently, the execution of Karla Faye Tucker, a petite, telegenic white woman who had become a repentant born-again Christian on death row. Ellis joined him for a visit to the death house. He took one look at the horde of reporters and cameras Jackson had lined up, and realized he had an extraordinary opportunity to “breathe life” into his indigent defense bill.

With a big boost from the media, the bill passed both houses of the legislature unanimously, but was vetoed by Governor George W. Bush.

The combination of the Illinois death penalty moratorium and the 2000 presidential campaign focused massive media attention on the shortcomings of Texas’s indigent defense system. Ellis actually became acting Governor a few times – as President Pro Tempore of the Senate, he took over whenever Bush was out campaigning and Lieutenant Governor Rick Perry was out of state – and presided over three executions, and granted one reprieve. A death penalty supporter, he nevertheless found it an “eerie experience” to be on the secure phone line with the warden during an execution, with the power of life and death – but one that “gave me a sense of commitment and tenacity” about making sure the system worked fairly.

When the legislature came back into session in 2001, he renewed his battle for indigent defense reform “with a vengeance.” He introduced an even stronger bill, including a requirement that counsel be appointed within one day, rather than the 20 days in the original bill. It also provided for state funding, standards, the creation of public defender offices, more systematic appointment and fair compensation of private lawyers, and special standards and more resources for death penalty defense.

This time, the bill received attention from all over the world. Death penalty abolition groups provided a critical boost, but, Ellis recalls, “the media drove it.” In short order, the Texas Fair Defense Act was overwhelmingly passed and signed into law.

THE HERO: Senator Rodney Ellis didn’t grow up wanting to be a legislator, or to help improve the criminal justice system. He was drawn to corporate law and politics. He was elected to the Houston City Council at age 29, then worked in Congress as chief of staff for a friend, Representative Mickey Leland. In 1989, Leland died in a plane crash in Ethiopia – a flight Ellis was supposed to be on and was mad about being bumped from. Leland’s widow asked Ellis to run for the congressional seat, but he opted instead to run for the State Senate seat once held by Leland. Unlike Congress, the state legislature is part-time, allowing him to maintain a career as a corporate lawyer and investment banker. He has never handled a criminal case.

Ellis remembers an epiphany during a class at the University of Texas Law School. As the professor was explaining Plessy v. Ferguson (the Supreme Court opinion legitimizing racial segregation) as an important “civil rights” case, he looked over and saw a classmate near tears. “It struck both of us at the same time,” he recalls, that the Court’s opinion – so well written and intellectually adept – came down to “justifying outright bigotry.” He realized “what a remarkable and dangerous talent we have as lawyers, to explain and justify almost anything,” and how important it is for those with power to “stand up for the little people.”

In addition to his senate work on indigent defense, he has championed legislation allowing post-conviction DNA testing, even if an inmate initially pled guilty (successfully enacted), a bill to ban executions of the mentally retarded (passed but vetoed, before the Supreme Court stepped in to outlaw it), and a bill to allow juries the option of life without parole (stalled – death penalty proponents say it would undercut pressure on juries to choose execution).

Ellis’s wife, Licia Green-Ellis, is a consultant who has served various Members of Congress, including Representative Leland. They have three children, ages 15, 9 and 4 – and a fourth on the way.

ADVICE TO OTHER POLICYMAKERS: “Take a deep breath, and look at the criminal justice system in America. Though we are the greatest country in the world, we are not perfect. Mistakes happen. There is a tendency in a legislature to listen to the prosecution, but for the adversarial system to work, there must be a balance between prosecution and defense.”

PROGRESS… Almost all Texas counties have adopted indigent defense plans in accordance with the Fair Defense Act. Three-quarters use rotation lists for appointment of private lawyers according to standards matching their level of skill to the complexity of the case. There is funding for experts and investigators, and a statewide requirement of continuing legal education for indigent defense counsel. The time until appointment of counsel is now measured in days instead of weeks or months. Total spending has increased 23 percent, including, for the first time, state funding: a $12 million annual contribution to the counties.

… BUT A LONG WAY TO GO: Only five of the 254 counties are served by a public defender office – the same as before enactment of the Fair Defense Act – although interest among counties is reportedly growing. Ninety percent of indigent defense costs still fall on counties, despite Gideon’s mandate that indigent defense is a state responsibility, and even though 31 other states accept primary responsibility for indigent defense costs. The counties are mounting a full-court press to roll back the time period for appointment of counsel, to cut costs. The Fair Defense Act did not touch the state’s system of appointed counsel in death penalty appeals, and new study by the Texas Defender Service finds that “death row inmates today face a one-in-three chance of being executed without having the case properly investigated by a competent attorney and without having any claims of innocence or unfairness presented or heard.”

Overall, Texas has made extraordinary and dramatic progress, thanks to Senator Ellis’ leadership, reports Bill Beardall of the Texas Equal Justice Center, “but we still have a long reform process ahead.”

THE PROMISE OF GIDEON: Still unfulfilled.

Read about NLADA's Gideon's Heroes project to commemorate the 40th anniversary of the Gideon v. Wainwright ruling, and find out how to nominate a Hero

Read about the January Gideon's Hero, Natasha Lapiner-Giresi.