Since the Supreme Court reinstated capital punishment in the landmark 1976 case of Gregg v Georgia, 1,195 people have been executed in the United States. Texas is often considered the epicenter of the death penalty, accounting for 449 executions. But executions are not evenly distributed across Texas. Harris County - home to Houston - is the true capital of capital punishment. With 112 executions, Harris County has executed about the same number of offenders as all of the other major urban counties in Texas, combined. In fact, if Harris County were a state it would rank second in executions after Texas.

Perhaps not coincidentally, Harris County is also the largest jurisdiction in the nation to use the appointment method of indigent defense - meaning the judge assigns a private defense attorney to the case. Critics have argued that the appointment method is plagued by five problems: (1) flat fee compensation (defense counsel receives a standard fee regardless of the number of hours worked, so each hour of work reduces the rate of compensation and detracts from private clients); (2) the potential for insufficient support services (defense counsel must receive approval from the judge to hire support services such as investigators and experts); (3) a potential conflict of interest for the defense attorney (defense counsel's personal income depends on remaining in the good graces of the judge to secure future appointments); (4) a potential conflict of interest for the judge (the judge must balance the defense counsel's requests for support services with the county commissioner's requests to control the costs of indigent defense; the judge must also consider the possibility that generous spending on indigent defense could hurt his/her chances of re-election); and (5) questionable appointment practices (some evidence suggests that judges occasionally make appointments for inappropriate reasons, such as whether the potential appointee is a friend or campaign contributor).

Despite such serious criticisms, researchers have not answered the most basic questions: Do procedural problems produce differences in case outcomes? Is the district attorney (DA) more likely to seek death against defendants who have appointed counsel? Is the jury more likely to impose death against defendants who have appointed counsel? Put differently, is the appointment method merely procedurally flawed or truly a matter of life and death?

To answer such questions, I examined the 504 cases indicted for capital murder in Harris County from 1992 to 1999. The findings suggest that defendants who must accept court appointed counsel are disadvantaged. The DA sought death against 101 of the 369 defendants with appointed counsel, compared to just 1 of the 31 defendants with hired counsel. Of the 101 defendants with appointed counsel who advanced to a death penalty trial, 83 were sentenced to death. The lone defendant with hired counsel who advanced to a death penalty trial was acquitted. Between such extremes are cases with mixed counsel - meaning the defendant had hired and appointed counsel during different stages of the case. Here, the DA sought death against 27 of the 104 defendants with mixed counsel, and 15 of them were sentenced to death. Combining the two stages of the process reveals the following: 0 percent of defendants with hired counsel were sentenced to death (0 of 31); 14 percent of defendants with mixed counsel were sentenced to death (15 of 104); and 23 percent of defendants with appointed counsel were sentenced to death (83 of 369). Such patterns are stunning: hiring counsel for the entire case eliminates the chance of a death sentence, and hiring counsel for a mere portion of the case substantially reduces the chances of a death sentence.

Hiring counsel also dramatically increases the chance of being acquitted. The acquittal rate for defendants who hired counsel for the entire case and were disposed at trial was 30 percent (3 of 10), compared to 1.5 percent (5 of 337) for all other defendants disposed at trial. Remarkably, if the rate for the former group held across the board then the number of acquittals would have catapulted from 8 to 104 (30 percent of 347 = 104). The relationship between hired counsel and acquittals is troubling - it does not seem plausible to conclude that defendants who hired counsel were 20 times more likely to be innocent.

The findings are unequivocal: hiring counsel alters the legal landscape. Does that mean the rich are getting away with murder? No. Examining average income in each defendant's residential neighborhood revealed that virtually all capital murder defendants are poor. The fact that some of the defendants from such poor neighborhoods can hire counsel suggests that others, perhaps relatives and friends, have pooled resources in the hour of need.

What should be done? In September 2009, the Harris County Commissioner's Court voted to create a public defender office. The implementation of the public defender's office is currently under further consideration as the budget process unfolds. The move to establish a public defender in Houston represents genuine progress and is a commendable step in the right direction. But the plan under consideration is a hybrid model: indigent defense would be provided by a mix of public defenders and appointed attorneys.

Rather than taking tentative steps, I argue that Harris County should replace the appointment method with a public defender office that handles all indigent cases. Doing so would eliminate the structural deficiencies inherent in the appointment method and reduce disparities in case outcomes (prior research demonstrates that prosecutors secure death sentences in 0 to 50 percent of cases in jurisdiction with a public defender, compared to 50 to 100 percent of cases in jurisdictions with the appointment method). Houston's distinction as the capital of capital punishment creates a special obligation to provide the most rigorous system of indigent defense possible. Only a top-notch public defender with resources proportionate to the DA can meet such a standard.