By NEENA SATIJA
Texas Tribune and Texas Monthly
“Are we ready on Wilford?” asked Sage. It was Nov. 30, 2018, and through a gray door, Wilford entered the Travis County courtroom, a sweater peeking out from under his jail uniform. His new lawyer, a 42-year-old with a scruffy beard named Andy Casey, patted him on the back. After replying softly to a few questions from the judge, Wilford was taken to jail one last time, for processing. With that, he was free.
After almost a year of waiting, it was an anticlimactic ending. Not even his wife was there to celebrate. She’d caught the flu and was stuck at home. To Wilford, the lack of fanfare was perfectly emblematic of how simple his case could have been. Casey had called Christine Wilford as soon as he was appointed to the case. It had taken a few months, but he’d examined the evidence, witness list and video, then negotiated a deal with the prosecutor: If Marvin Wilford pleaded guilty to a misdemeanor assault for being involved in the scuffle, the felony charges would be dropped. The maximum sentence was a year, which Wilford had already served.
“The one thing you do see him carrying in the video is a cane,” Casey said.
A month later during Christmas, Christine had bought him a ring to wear next to his wedding band, a symbol of all they’d been through together. Marvin had applied for a small business loan to start an online hat shop; his mother had loved hats, and he planned to name the venture after her: Marie Antoinette and Sons Hat Shop.
He could not speak about Espersen without getting agitated.
“How old does a Black man have to be before y’all stop trying to destroy his life?” he asked.
During a meeting with Sage in regard to Espersen’s caseload, she noted that the numbers can be misleading. Sitting in her office, she pulled up a spreadsheet from her own courtroom.
“As of Jan. 2, I have the most cases [of any judge],” she declared – specifically, 1,200. “That’s not for the whole year. Just right now.”
But one defendant on her list, for instance, was facing 20 charges. Handling 20 cases for one person is very different from handling the cases of 20 people, Sage stressed.
It’s true that caseload numbers come with caveats. Casey, for example, was overloaded, yet he still managed to give Wilford the necessary attention. But his caseload was not nearly as high as Espersen’s. And, it’s also true that Sage doesn’t deal with 1,200 cases by herself; she has a team of prosecutors who have their own staff, including investigators and assistants – resources that most defense attorneys do not have. In addition, it’s rare for a single person to face 20 charges; on average, one defendant in Travis County has 1.6 pending cases.
The caseload for a lawyer like Espersen reflected this average: In 2015, for example, his clients in Travis County numbered 384 and his cases 424 – not a huge disparity. Could she really make the case, I asked, that a lawyer with almost 400 new clients a year could serve all of them well, or even adequately? Sage spun back and forth in her chair.
“That’s a lot of cases,” she said. “Lawyers have a personal responsibility. They know what they can handle. Do we really need to tell a lawyer, ‘Don’t do that?’”
That question would swirl around Austin for most of the spring. In a series of heated exchanges, criminal justice reform advocacy groups, supported by Democratic county leaders, argued publicly that the managed assigned counsel model had not solved either excessive caseloads or judicial interference – and that the only solution was to expand the county’s public defender’s office after all. But resistance from defense lawyers and judges was fierce, and it took until late May for Travis County to submit a proposal to the TIDC.
The proposal asks the state for about $24 million over five years and commits the public defender’s office, if expanded, to strict caseload limits based on TIDC recommendations. It also asks for more resources for CAPDS. The TIDC, which received a funding boost from this year’s Legislature of about $14 million a year, must now decide whether to fund the requested state grant; a decision is expected at the end of August.
Of course, for longtime observers of Texas’ criminal justice system, it’s precisely this piecemeal approach – a few extra public defenders here, some added funding there – that dooms poor defendants to inadequate representation.
“The only way to do this correctly is to have a statewide system with standards that’s properly funded,” said Jeff Blackburn, an Amarillo-based lawyer who founded the Innocence Project of Texas.
Class-action lawsuits are forcing this issue elsewhere: In New York, for example, after a historic settlement with the New York Civil Liberties Union, the state will spend $250 million a year on indigent services, a burden once shouldered almost entirely by its counties.
It’s likely that no such class-action suit will take place in Texas anytime soon – the idea of a statewide public defender system does not have broad constituency in a place this large and diverse – so until then, change at the state level will require action by the Legislature. And as a practical matter, that won’t happen without approval from judges, as former state Sen. Rodney Ellis found out 20 years ago.
“Judges who will remain nameless still try and tell me that the judge picking the lawyer is better because they pick people who are capable. How do you say that with a straight face?” said Ellis, who is now a commissioner for Harris County.
Even the TIDC is an example of this complicated dynamic. Though by law it has the power to set maximum caseloads for lawyers across the state, it has never done so. Only the agency’s board can approve such a move, and the board is led by Sharon Keller, the presiding judge of the Texas Court of Criminal Appeals.
“We really do think that people in the local jurisdiction know best,” she explained. After showing her that caseload data shows some lawyers doing what the TIDC’s own study says is the work of at least five lawyers, she replied, “I don’t even know if that’s wrong. The guidelines are a point of reference, and they’re not absolute.”
In the meantime, it may be that lawsuits at the individual level, like Willey’s, are the surest way to force incremental change. In April, the Houston lawyer saw his efforts resolve quietly when his suit against Ewing ended with a settlement and both parties agreed “not to cause or ask others to violate the Texas Fair Defense Act.” It wasn’t exactly a bold finish – “Nothing in this settlement should be considered as an admission by Judge Ewing of any wrongdoing,” read the files – but Willey saw it as a limited victory.
“There’s a federal judgment now, dictating that he must agree to follow the law,” he said.
Meanwhile, Harris County had seen its own changes: After a sweep of Democratic judges came into office in November, the public defender’s office budget nearly doubled, to $21 million a year. Its juvenile division – whose attorneys had been receiving an average of 141 cases per year, versus the 300-plus cases per year given to some private attorneys – had started receiving enough cases to hire three more lawyers.
The county was also exploring managed assigned counsel for its court appointments, including – in a radical move – a proposal that lawyers adhere to TIDC caseload recommendations. (When the print edition of Texas Monthly with this story went to press, Harris County’s felony judges had not agreed to such a proposal.)
“Travis County did it backward,” explained chief public defender Bunin, who was feeling hopeful about these changes. “You need a public defender and then a managed assigned counsel.”
In June, Willey’s fundraising for Restoring Justice was going so well that he’d hired an executive director; he’d also secured a partnership with the Houston Texans. But the change in Harris County judges had also spelled change for him. Suddenly, he was getting court appointments in Houston and being asked to host fundraisers for friends who were now in the judiciary. That month, he’d been given work in the misdemeanor courts of judges Genesis Draper and Franklin Bynum, both former public defenders.
Willey was glad for the appointments, of course, but he was also developing a nagging sense of discomfort. He revealed a message he’d received from a supporter after the news of his settlement with Ewing.
“I hope you didn’t settle because you are going to become like them and forget about justice for all and the underserved community,” the texted read. “I hope you don’t become a good old boy.”
For a minute, Willey stared at his phone. He would save the message, he said. So that he wouldn’t forget.
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This article was first published at https://www.texastribune.org/2019/08/19/unchecked-power-texas-judges-indigent-defense by The Texas Tribune, a nonprofit, nonpartisan media organization that informs Texans – and engages with them – about public policy, politics, government and statewide issues.