The Indigent Project – Part V

Every Texan has a right to an effective lawyer, fair trial

The Indigent Project Part V
The Indigent Project Part V

By NEENA SATIJA Texas Tribune and Texas Monthly

On June 24, 2018, Marvin Wilford sat on his bunk in the Travis County jail and pulled out a notebook. He was firing his lawyer, and over three pages, he did his best to explain why: Espersen barely communicated with him; it appeared he’d misplaced documents from Christine Wilford.

“He didn’t use none of the state money … to get an investigator to question the witness on my behalf, not even the Security Guard who fired the gun,” he wrote.

The thought that he might end up in prison for many years overwhelmed him.

“When I was in combat, and my life was on the line, I fought for my life,” he recalled. “And I realized, ‘I gotta fight for my life now, too.’ I was trying to write the letter so she would understand.”

For two weeks, neither he nor Christine Wilford got a response. She called the Capital Area Private Defender Service phone number repeatedly – more than 20 times, she thought – and left message after message. Finally, in early July, she heard from executive director Ira Davis, who told her to attend her husband’s next court date, on July 13. If CAPDS was supposed to be a recourse, it didn’t strike her as particularly effective.

The truth was, the staff at CAPDS was overwhelmed, too. The sheer volume of work – supervising more than 200 lawyers, handling their payments, coordinating investigators and social workers – was near impossible for such a small team. Not to mention the number of complaints they received. There was barely time to look into each defendant’s grievance, let alone a lawyer’s performance. Many complaint forms ended up half filled out, with no record of a follow-up.

Strassburger felt that CAPDS’ supposedly independent oversight was continually compromised. The use of investigators, while better, was not improving fast enough; by 2018, lawyers were requesting them in less than 5% of felony cases and less than 1% of misdemeanor cases. And while judges no longer assigned cases – this was left to court administrative staff – a lawyer could still show up for ad hoc appointments, circumventing the setup.

Because judges had found it difficult to suspend poorly performing lawyers, CAPDS had formed a review committee of criminal defense lawyers to make the tough calls instead. But, as it turned out, lawyers found it just as difficult to sanction their peers. Committee members were loath to kick colleagues off the wheel, thereby depriving them of income; they also had trouble taking defendant complaints at face value.

“People in the criminal justice system are unhappy,” explained Blackwell. “People are going to complain about their lawyers.”

Most exasperating to Strassburger, was that despite the county’s effort to wrest power from the judges, the judges were still ultimately in control. The review committee actively solicited judges for input on lawyers.

The court staff that facilitated appointments also reported to the judges. Meanwhile, the judges refused to agree to stricter caseload limits – the limit in Travis County is 100 misdemeanor cases and 90 felonies at any given time; Alex Bunin, the chief defender in Harris County, stated that lawyers in his office rarely go above 30 felonies at once. Judges also, together with county commissioners, refused to increase lawyers’ fees, arguing that there wasn’t enough funding.

As a result, many lawyers still juggled big caseloads, racking up complaints. At first, Strassburger tried to keep detailed memos. In July 2015, for instance, she noted that several defendants had complained about Tom Weber, who that year was paid for 305 felonies and 104 misdemeanors. “All reported bizarre and unprofessional behavior,” she wrote. When she’d brought this to Weber’s attention, Strassburger also wrote, he had dismissed the credibility of his clients, calling them “monsters,” “scumbags” and “rapists.”

Weber did not respond to requests for comment.

Three weeks after that memo, the KXAN report about Espersen’s workload aired. According to the investigation, over two years, Espersen had billed Travis County for 40 hours of jail visits that were unaccounted for. In one instance, Espersen claimed to have met with an inmate named Rodney Thomas five times, for a total of 13 hours. But Thomas told KXAN that the lawyer visited him once – a week before his trial – a claim corroborated by jail rec­ords. Espersen had also billed for a visit with Robert Rivera

“I did not so much as receive one visit from Mr. Espersen while incarcerated at Travis County Correctional Complex in Del Valle,” he told KXAN.

In response to the KXAN report, the district attorney’s office opened a criminal investigation into Espersen and a few other lawyers – including Weber – for the alleged overbilling. When the CAPDS review committee convened early the following year to decide which lawyers could take appointments, Strassburger, Davis and Hargis recommended in a joint memo that Weber not represent people with mental illness. He’d allegedly told one client to “go ahead and kill himself,” they wrote. They urged the committee to “seriously consider whether he should be defending indigent people at all.”

They also warned about attorney Phil Campbell, who was paid on 134 felonies and 300 misdemeanors in fiscal 2015.

“Staff observations of Mr. Campbell and complaints from other attorneys indicated an attorney who was not truly advocating on behalf of his clients but merely conveying an offer and advising them to take it,” they wrote.

Campbell declined to comment.

Later, they brought up Espersen. Some of his clients had learned of the DA’s investigation and written to CAPDS to complain.

“I deserve a fair trial,” wrote one. “Please help.”

The review committee agreed to remove Campbell and Weber from cases involving people with mental illness. But that was it. Weber continued to receive appointments on high-level felonies until he was hired by the DA’s office. Campbell’s caseload, meanwhile, increased; he went on to take cases in nearby counties. (In 2014, he was paid for 106 felonies and 252 misdemeanors; by 2018, his misdemeanor caseload had grown to 428.)

As for Espersen, the committee decided to delay action until the DA’s office concluded its investigation, which is still pending four years later.

The DA’s office denied a public information request for rec­ords related to the investigation.

As long as judges had this much say in the matter, Strassburger realized, little would improve for Travis County’s poor defendants. Her despair only grew when, in the fall of 2017, several judges approached CAPDS with a question. Was it fair, they asked, to look at a lawyer’s number of cases rather than clients? Given that some clients had more than one case against them at a time, why not instead suspend lawyers who had too many clients?

Strassburger was dumbfounded. This would have the effect of raising the caseload limit, and caseloads were terrible enough. In yet another memo, she outlined her concerns.

“We are encouraging attorneys to quickly resolve cases and, in effect, punishing those attorneys who handle complicated cases,” she explained. In bold, underlined font, she added, “The attorney with the highest caseload (748) has not been suspended for exceeding caseload limits in the last 12 months.” A few months later, disheartened, Strassburger quit.

On July 13, Marvin and Christine Wilford appeared for his court date. They were joined by Espersen, who, per Marvin Wilford’s request, had agreed to remove himself from the case. Standing before Judge Clifford Brown – who was sitting in while Sage was at trial – Marvin Wilford listened attentively as the judge approved Espersen’s motion. Wilford sighed with relief.

“Finally,” he thought.

 

Disclosure: The University of Texas, the University of Houston and Texas Tech University have been financial supporters of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune’s journalism.

 

 

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.

 

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