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January|February 2003
Almost Infamous By John Swansburg
A Lawyer's Limits By Jonathan L. Hafetz
Block Sender By Beth Taylor
Lone Star By Jordan Smith
Neolawisms By Adam Hanft
Off Target By James B. Jacobs
New War, Old Law By Stéphanie Giry

Lone Star

By Jordan Smith

A few months ago, a 43-year-old lawyer named Paul Holloway was seated in a sagging loveseat in a small living room in rural Texas, interviewing a middle-aged woman named Sue. Sue's ex-husband Bobby, Holloway's client in the case, had been accused of murdering Sue's boyfriend Joe in the clapboard house next door. (The real names of Sue, Bobby, and Joe have been changed.)

"How did you meet Bobby?" Holloway asked.

"He came up here with a friend," Sue said.

"Who was the friend?"

"Bam Bam."

"Fred Flintstone's son?" he asked, deadpanning. Sue laughed.

"He's a friend of Dog's," she explained. "Well, we call him 'Doggie.' His real name's Howard."

"I think I know Doggie," Holloway said.

According to Bobby, the fatal knife wound that he inflicted on Joe was struck in an act of self-defense. But Sue was skeptical. Though she wasn't in the house at the time of the killing, she explained, she had always been scared of Bobby.

"You say he was mean to you?" Holloway asked.

"Yes," she said. "Real mean." But aside from citing several arguments they had during their marriage—and one occasion when he pulled her hair—she couldn't provide any concrete examples.

Standing outside on the dirt driveway, Holloway shook her hand and thanked her for cooperating.

"Talking to material witnesses is always an odd experience," Holloway later reflected. Sue, he noted, didn't observe the altercation between Bobby and Joe, yet offered details of the crime as if she had. "She had been wood-shedded by the police and informed about their theory and had adopted it as her own," he speculated. "She thought she knew things that she didn't. It's odd to me the sorts of things that people will say knowing that it will drastically affect another's life and freedom."

Holloway runs a one-man private practice in Plainview, a town of 22,000 in the Texas Panhandle. The population is dominated by farmers, and the skyline is dotted with silos. Holloway is devoted to defending indigent people who have been charged with a range of felonies and misdemeanors—everything from murder to driving while intoxicated. The two district circuit courts in Hale County frequently appoint him to cases for which he makes rates of $75 or $100 an hour.

Lawyers in Holloway's line of work typically plead their clients guilty as quickly as possible, which allows them to make money efficiently and to please the judges in a position to give them more work. The archetype of the lackadaisical court-appointed defender in Texas is Joe Frank Cannon, who famously slept through much of a Houston murder trial in which his client received the death penalty. Cannon's story helped embarrass state legislators into passing the Fair Defense Act of 2001, which was designed to provide better defense to the poor. Among other things, the law provides state money to offset the cost of indigent defense and requires each county to set a standardized scale for lawyers' fees.

Known for working long hours on his cases, Holloway runs the kind of practice that reformers dream of. "He is faced with this decision on a weekly basis," says Rebecca Bernhardt, an attorney with Texas Rural Legal Aid: "Whether or not to take a case that's not going to make him any money and will probably cost him money." When I visited Holloway in Plainview, though, he was quick to insist that he's not "some overly righteous guy." By mixing time-consuming cases with routine ones, and by picking up lucrative personal injury work from time to time, he manages to pull in a six-figure annual income.

Holloway spent the first five years of his legal career in downtown Houston, working as an associate at corporate firms that represented clients like General Electric. When his second son was born with a severely cleft palate, he and his wife Katherine decided to simplify the other aspects of their lives. In 1994, they moved to Plainview, where Katherine had grown up. Holloway began practicing criminal law out of necessity. "You can't come to a little town and immediately take business clients," he told me. "You have to take the work that is there to do." In many ways, the Holloways fit in well in Plainview. Katherine's parents, for instance, still live in town. But at the same time, Holloway has refused to accept the complacent way life sometimes rolls by in this area of Texas.

Perhaps the most striking example of Holloway's fighting spirit was the set of cases he handled a few years ago in Tulia, a small town just north of Plainview in Swisher County. On July 23, 1999, police officers in Tulia hit the streets with warrants for the arrests of 46 cocaine dealers. Three days before, a grand jury had handed down 132 indictments as the result of an 18-month undercover investigation by Tom Coleman, a freelance cop who had been hired by the Swisher County Sheriff's Department. Of the 46 people arrested, 40 were black—nearly 10 percent of Tulia's black population. The Tulia Sentinel editorialized that the town of just over 5,000 people had become a "haven" for the area's "drug dealing menace," even though the raids turned up no drugs, money, guns, or drug paraphernalia.

Few of the defendants could afford to pay for their lawyers, and Hale County's district court assigned Holloway eight cases involving four of the defendants. Holloway's first instinct was to inspect Coleman's evidence. Though many of those charged had previous drug convictions, none was more serious than small-time crack possession. In addition, Coleman's undercover reports were bereft of specifics; even Coleman admitted that some of his notes—including those that recorded the details of the cocaine buys he claimed to have set up—had been written on his leg. Yet despite Coleman's uncorroborated testimony, juries began handing down guilty verdicts with sentences up to 90 years.

Holloway asked presiding district judge Ed Self for money to hire an investigator, but Self refused. On his own dime, Holloway looked into Coleman's past. He learned that in May 1996, while employed as a sheriff's deputy in Cochran County—about 50 miles west of Plainview—Coleman had been charged with theft and with abuse of his official position for allegedly stealing money and gasoline from the county. But the misdemeanor theft charge had eventually been dismissed, and the felony charge for abusing his official capacity had been overlooked because of a filing error. In an attempt to provide the jury with reason to doubt Coleman's credibility, Holloway asked Self for permission to cross-examine the deputy sheriff about his past and about investigative techniques "in any meaningful way." For the second time, Self said no. Holloway was thus forced to plead his clients; he feared that otherwise they'd end up with long sentences. In the end, two of his clients received jail sentences, the shortest of which was six years; the other two received probation.

Holloway is still trying to reconcile himself to the difficult choices Tulia presented. He earned just $5,000 for nearly 426 hours of work, which under normal circumstances would have earned him about $64,000. "Ultimately, I am not at peace with the whole deal," he said. "Ultimately, the compromises I made had to do with the fact that I was financially strapped. I'd done everything I could do and I could tell how it was going to go." In the end, 22 of the 46 defendants were convicted. Four cases were dropped and the remaining 20 defendants pled for probation. So far the State Appeals Court has upheld all of the Tulia convictions, though the U.S. Department of Justice has initiated a civil rights investigation. In August 2002, the Texas ACLU convinced then-State Attorney General John Cornyn (now Senator-elect) to investigate potential civil rights violations and other possible criminal activities of Tom Coleman.

Many reformers would like to think that the Tulia bust would have had a different ending if the Texas legislature had enacted the Fair Defense Act earlier. Before the act, "you had 800-plus judges with unfettered discretion, without guidelines of any kind, with no accountability and no oversight," explains Hanna Liebman Dershowitz, the legal director for Texas Appleseed, a grassroots legal advocacy group. "Zealous advocates would stop getting appointments." Nowadays the act is working well. A healthy majority of Texas's counties have implemented standardized practices for appointing counsel and have received state money to offset their costs. If the act had been in place when Holloway was working on the Tulia cases, he would have gotten the investigator he requested. The law doesn't allow judges to deny such requests and it mandates payment for investigators and expert witnesses.

But backers of the Fair Defense Act expect their opponents—mainly judges who wish to regain control over the process—to try to roll back parts of the law during the 2003 legislative session. Because of his concerns about how justice is meted out in the Panhandle, Holloway ran this fall for a district judgeship in the circuit that includes Plainview and Tulia. But he lost, and without some different voices, he worries, justice in Plainview will become one-sided. "It's the unfairness of it—they just won't let you defend," he said. "That proposition is just too bleak."

Jordan Smith is a staff writer for The Austin Chronicle in Austin, Texas.

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