The Price of Justice

The Price of Justice
McAllen (TX) Monitor - Three-Day Indigent Defense Series
December 20, 2009
http://www.themonitor.com/sections/infocenter/paymentscases/?appSession=233124055321396&RecordID=&PageID=2&PrevPageID=2&cpipage=1&CPIsortTyp
e=asc&CPIorderby=Y2008
The Price of Justice
Jeremy Roebuck and Jared Janes | The Monitor
Hidalgo County is set to pay $8.6 million this year for providing attorneys to criminal defendants who
couldn’t afford to hire their own. It’s a cost both state law and the U.S. Constitution obligate local
governments to pay – but one that is becoming harder to afford. Hidalgo County’s indigent defense
spending has increased from $2 million in 2001 to a projected $9.9 million in 2010 – a 375 percent growth
over a decade. Some say that’s just the price of justice in a region with one of the poorest, yet fastest
growing populations in the nation. Others insist the county’s model of offering low-income legal services is
inefficient, open to abuse and largely unmanageable.
----Day 1
>>VIDEO: The rising cost of indigent defense
Watch a video overview of the indigent defense system
>>Expense of Defense: Costly indigent defense program burdened by inefficiencies
This year, Hidalgo County is on track to spend $8.6 million on indigent defense — more than that allotted
for parks, sanitation or public health clinics. Next year, that expense is predicted to rise 15 percent, to
almost five times the $2.1 million local taxpayers spent just a decade ago.
>>For court-appointed attorneys, work keeps coming
Those payments are just one piece of Hidalgo County's $8.6 million indigent defense costs this year. But
his efforts - and those of some 200 other lawyers who took on court appointments this year - are essential
to providing justice in one of the poorest counties in the nation.
>>Budgeting for indigent defense a tricky process
County commissioners already were forced to tap into an emergency fund once this year to replenish the
coffer. But a second request for an extra $1 million faced a challenge from some: How could funding
indigent defense in one of the poorest counties in the nation be considered an unforeseen expense?
>>On the indigent defense team, he's the point guard
During the past six years, his office has helped create a county public defender system, drawn up a more
detailed method of income screening, and set up a computer networking system that allows attorneys to
talk to their clients without driving to the county jail. Each small step has chipped away at the overall
indigent defense costs in ways that haven't always been reflected in the current funding debate.
----Day 2
>>VIDEO: Another interview with an indigent defendant
Juan Tello Hinojosa explains how court-appointed attorneys helped him when he was accused of a crime
>>No price too high: Low-income suspects face steep odds without county-funded legal help
Mitchell Valentine insisted on his innocence from the beginning, but it took two dedicated attorneys and a
team of scientific experts to finally clear him of his capital murder charge - all of which lay well beyond the
unemployed 26-year-old's meager financial means. As Hidalgo County continues to grapple with the
rising costs of indigent defense, Valentine's case offers one example of why footing that bill is so
important.
>>Income verification a tricky task in Hidalgo County
They screen thousands of inmates to determine indigence, distribute cases among the county's public
defenders and private attorneys and verify that the lawyers meet with their clients within two days of their
assignment to a case. As counties across the state re-examine their indigent defense systems, this small
office offers insight into a critical question: What's the most cost-effective way to determine indigence?
----Day 3
>>A Public Option: Little-used county office one choice in curbing indigent defense costs
Studies have consistently shown a public defender’s office can do the same work cheaper than courtappointed, private attorneys. But Hidalgo County may have the only public defenders in the country who
routinely complain they don’t have enough to do. As the county considers ways to control an indigent
defense expense projected to hit $9.9 million next year, experts and state administrators say it is
underutilizing one solution to its cost conundrum.
>>Texas counties take different approach to common indigent defense problem
Bad economic times often lead to more crimes and to more people needing court-appointed attorneys.
But property tax revenue — the primary funding source for the state’s local governments — has been on
the decline, and cash-strapped counties are increasingly looking at ways to save on indigent defense.
Here are innovative options other counties are using.
>>ONLINE EXCLUSIVE: Other counties push public defender's offices
If Hidalgo County wants to better utilize its own county-employed attorneys for the indigent, it could learn
a lot by examining other such programs at both the federal and state level. In Texas, public defender’s
offices range in size from the five Bexar County attorneys who only handle cases on appeals to the 90plus attorneys in Dallas County who took on more than 45,000 cases in adult and juvenile criminal courts
last year.
---->>Indigent Defense Database
Searchable database of all attorney payments and cases from 2005 to 2009
Indigent Defense Database
The 200-plus private attorneys who receive court-appointed cases took home nearly $30 million in
taxpayer dollars since 2005 to defend accused murderers, robbers and thieves. On a given year, the
average attorney will clear more than $40,000. The lion’s share goes to a dozen or so attorneys who
handle a large number of cases or represent clients in more serious matters. Many attorneys will
represent more than 100 low-income residents each year.
A summary of payments and cases given to individual attorneys through Hidalgo County's indigent
defense system is below.
Note: Payments and cases for 2009 are through November
/////
http://www.themonitor.com/articles/defense-33723-expense-burdened.html
Sunday, December 20, 2009
Expense of Defense: Costly indigent defense program burdened by inefficiencies
Jeremy Roebuck and Jared Janes | The Monitor
EDINBURG -- Some of Hidalgo County’s highest-paid professionals this year weren’t on the official
government payroll.
They made more than top law enforcement officials like the district attorney and the sheriff.
And they did it by attempting to undo their work.
The county has paid attorneys Rogelio Garza and Sergio J. Valdez each more than $200,000 so far this
year for fighting to clear the names of accused murderers, kidnappers and thieves.
And they are only two of the 200 private lawyers who make their living defending criminal suspects who
can’t afford legal representation on their own. (See "Indigent Defense Database")
This year, Hidalgo County is on track to spend $8.6 million on indigent defense — more than that allotted
for parks, sanitation or public health clinics. Next year, that expense is predicted to rise 15 percent, to
almost five times the $2.1 million local taxpayers spent just a decade ago.
It’s a cost both state law and the U.S. Constitution obligate governments to pay — but one that is
becoming harder to afford. With a nationwide recession restricting government cash flows, there is no
clear answer on how the county will continue to meet this burden.
“Every new revenue we can find, we’re putting into indigent defense,” said Raul Silguero, the county’s
chief budget officer.
Some say the rising cost is the price of justice in a region with one of the poorest, yet fastest-growing
populations in the nation.
Others insist the county’s model of offering low-income legal services is inefficient, open to abuse and
largely unmanageable.
Today, The Monitor begins a three-day series looking at Hidalgo County’s indigent defense program, a
review that found both groups to be right. Poor defendants make up the vast majority of those who go
before the county’s courts, but the system designed to handle them here:
>> Costs more per capita than that of any other urban county in Texas.
>> Allows defendants and their attorneys opportunities to exploit it with impunity.
>> Is administered by more than 20 county offices — each with control over a small piece of the system
and a poor understanding of the entire picture.
However, as difficult as the program is to manage, it may just be the best option available to ensure a
justice system open to everyone regardless of their economic status, said James Bethke, head of the
state task force that oversees low-income legal services.
“Providing indigent defense is going to cost money, and it’s a cost that no one wants to pay,” he said.
“The key is doing that as effectively and as efficiently as possible.”
‘HUNTING FOR FOOD’
“Efficient” is a word attorney Juan Alvarez would hardly use to describe arraignment days in any one of
Hidalgo County’s five misdemeanor courts.
Defendants — some in orange jail jumpsuits, others in street clothes — pack into the courtroom gallery’s
uncomfortable pews while waiting for their name to be called. Well over half show up to be formally
charged without a lawyer.
Luckily for them, they are often outnumbered by the suit-clad masses clamoring to take on their cases.
These lawyers fill the jury boxes, the aisles and any other available open space.
This is where Alvarez and his law partner Melissa Canales make their living. In the past five years, their
firm has earned nearly a half a million dollars from court appointments, according to county records.
“These courts are clogged,” he said. “There are tons and tons of cases, and we’re actively hunting for
food.”
Each day, they and dozens of other attorneys fan out across the courthouse hoping to fill their briefcases
with new files. Some arrive as early as 5 a.m. to get first crack at the list from which judges dole out the
defendants in need of lawyers.
Catch these lawyers in the hallways outside and they will jokingly concede the somewhat predatory
nature of their work.
But truth be told, their services are essential to keep the local justice system running.
More than 70 percent of Hidalgo County’s criminal defendants were represented by court-appointed
attorneys last year, according to the Texas Task Force on Indigent Defense. Local judges estimate that
number is closer to 90 percent.
“That’s just where we happen to be from,” said County Court-at-Law Judge Fred Garza, whose court
assigned private attorneys to 1,400 cases in 2008. “We’re in the Rio Grande Valley. We’re on the border.
That’s where we are, and that’s the way it is.”
NO INCOME CHECKS
But with the county spending more than ever on private attorneys, it is increasingly difficult to say what
taxpayers are getting for their money.
The system has its advantages in that it provides the poor with access to highly experienced attorneys
they would never be able to hire on their own.
But from an accounting perspective, it’s a nightmare. The process is riddled with inefficiencies, duplicated
expenses and the potential for abuse starting the moment a judge first determines whether a defendant
qualifies as indigent.
In many cases, this occurs the first time he shows up for court. If he hasn’t hired a lawyer already, he
need only answer three simple questions before the county assigns him one: Do you have an attorney?
Can you afford to hire an attorney? Do you want the court to appoint you an attorney?
As it plays out in courtrooms across the county every day, the process takes less than a minute and relies
entirely on the trustworthiness of the person answering the questions. Some courts skip it entirely, merely
asking defendants to line up on one side of the room if they want court-appointed counsel.
Hector Villarreal, a defense attorney and former judge, has watched this process from both sides of the
bench for more than three decades and concedes it’s likely some defendants lie to get legal
representation on the cheap.
“The criminals have been educated, also,” he said. “They’re thinking, ‘Why pay a quarter of a million
(dollars) to a private attorney when the county will provide one for free?’”
LITTLE OVERSIGHT
The lawyers, too, have several opportunities to exploit the system.
And because their work is tracked by different judges and catalogued on reams and reams of paper, it’s
nearly impossible to effectively monitor who is being honest.
Each judge monitors an attorney’s work in his or her own court but has very little knowledge of what might
be going on in other courtrooms.
Because most attorneys work in several of the county’s 16 felony and misdemeanor courts, no one
oversees the entire workload they take on each year or the total they charge for their services.
American Bar Association standards for public defenders suggest that a single attorney can handle no
more than 150 felony or 400 misdemeanor cases a year before the quality of the defense each client
receives begins to suffer.
But a Monitor review of the caseloads shouldered by several of the county’s most frequently appointed
lawyers shows many were dangerously close to, or exceeded, those guidelines.
Robert M. Capello Jr., the attorney who took on more indigent defendants than any other lawyer last year,
billed for more than 200 felony cases and 200 misdemeanors in 2008, not counting the juvenile and civilappointment work he may also have handled that year, according to checks issued to him from the
county. Those numbers also do not reflect any work he may have had from paying clients who retained
him on their own. (See "For court-appointed attorneys, work keeps coming")
Capello, like many of the highest-paid, court-appointed lawyers, did not return multiple requests to be
interviewed for this story.
FORCED TO LIE
Once a case is resolved, attorneys tally the time they spent in and out of court and submit a bill to the
judge. But this step of the process is also fraught with complications.
Lawyers are supposed to charge for their time at a set hourly rate. But an informal audit by the county’s
indigent defense office found that out of 20 vouchers submitted by lawyers this year, three attorneys
claimed they had spent 10 to 15 hours in court in a single day — well more than the standard eight during
which the county courthouse is open.
Several attorneys conceded that while their invoices may look suspicious, they have earned every dime
and have been forced to jump through accounting hoops to be paid.
Judge Noé Gonzalez, who helms the 370th state District Court, said he and his fellow judges have the
discretion to award more than the standard hourly rate to compensate lawyers at a price they believe to
be fair.
Those sums may be well-earned, Gonzalez said, but the county auditor’s office will not pay the invoice if
the total billed does not match the number of hours claimed for the work.
This forces attorneys to inaccurately report the number of hours spent on each case to match the
arbitrary amount the judge decides to give them.
“It takes the heat off the judges,” Gonzalez said. “But once you audit those, you’ll find some lawyers who
are literally billing 10 to 12 hours a day on paper. Are they defrauding the county? No.”
Complicating matters further, attorneys defending a single client on multiple charges routinely bill as if
each count were its own separate case.
Lawyer Oscar Rene Flores took on an indigent defendant earlier this year facing seven counts of
aggravated robbery. The four hours he put into preparing a challenge for one of those counts easily
translated to the other six, he said.
In the end, Flores turned in a voucher for only $700 — equaling the total number of hours spent on all the
cases. But he had to convince the judge he wasn’t cheating himself by failing to multiply his bill by seven
— one time for each of his client’s charges.
The standard practices of overbilling and making up hours don’t matter much on paper as long as the
judge deems the final payment fair, Flores said. But if an indigent defendant wanted to claim his lawyer
provided ineffective counsel, he would need only point to these inaccurate vouchers to claim his attorney
lied about the time spent on the case.
“Our voucher forms are essentially affidavits. We are testifying under oath that all that information is
correct,” Flores said. “They’re forcing us to lie on almost every one of them.”
NO STEERING THE SHIP
But perhaps the single largest problem the county faces in controlling its indigent defense costs is that
there is no one person steering the ship.
Day-to-day management of low-income legal defense is spread out among more than 20 different county
departments, each most concerned with overseeing its small area of responsibility. And many
administrators exhibit a poor understanding of the functions required in other offices or lack the authority
to make sweeping changes on their own. (See "On the indigent defense team, he's the point guard")
To budget writers, who ensure money is available to pay court-appointed attorneys, the problem is purely
mathematical: The costs continue to rise and the county has fewer and fewer dollars to meet them.
The county auditor’s office — which cuts the checks to attorneys — sees all the hours claimed out of each
court. But the sheer volume of bills — all submitted on paper — makes a comprehensive review nearly
impossible.
The Monitor requested copies of all vouchers submitted in the last four years by 25 of the highest-paid,
court-appointed attorneys but was told the information could not be made available for less than $60,000,
would fill up 31 boxes and would take the equivalent of a full year of one county employee’s time to pull
together. The documents are unavailable for review to outsiders or internal employees in electronic
format, a county spokeswoman said.
The judges, who are constitutionally obligated to ensure all defendants receive adequate representation,
tend to downplay or misunderstand concern over the increasing financial burden. Many interviewed for
this story said they routinely order indigent defendants who plead guilty to pay back their attorney fees —
thus helping the system fund itself. But the county actually recouped less than 1 percent of that total last
year.
And on the periphery, the decisions of dozens of other government entities — such as the district
attorney’s office, state crime labs, and every one of the county’s 22 municipal law enforcement
departments — also play a significant role in the overall cost by determining how quickly evidence can be
analyzed and defendants can be brought to trial. Every time a court-appointed lawyer comes before a
judge and the state is not ready, the county’s bill goes up.
“There’s a lot of spokes on the wheels of justice,” said Judge Rose Guerra Reyna, who presides over the
206th state District Court. “They all play a role in making the wheel go round.”
No better example of the system’s disjointed nature emerged this year than the impact of a $30-an-hour
increase in attorney compensation rates implemented in late 2008. The fee prior to the increase was $40
an hour for in-court work and $70 an hour for out-of-court work.
The area’s judges defended the raise as a long overdue update to a pay schedule that was last changed
in 1987. But it increased the county’s monthly indigent defense costs by nearly 60 percent just as the
nationwide recession caused revenues to drop.
To make matters worse, county budget writers didn’t receive official notification of the change until after
the final 2009 budget had been approved.
As a result, the fund for paying court-appointed attorneys dwindled to just $29 last month, forcing the
county to tap into emergency coffers twice to fund the resulting $3 million shortfall. (See "Budgeting for
indigent defense a tricky process")
This type of “left hand ignoring the right hand” planning lies at the root of the current funding crisis. And
unless all the stakeholders come together to address these rising costs, paying for indigent defense will
continue to remain a problem, said Israel Ramon Jr., presiding judge of the 430th state District Court.
“The Commissioners Court deals with numbers. We have to deal with the Constitution,” he said. “But the
indigent need to be represented and the lawyers need to be paid.”
----Jeremy Roebuck covers courts and general assignments for The Monitor. He can be reached at (956)
683-4437. Jared Janes covers Hidalgo County government, Edinburg and general assignments for The
Monitor. He can be reached at (956) 683-4424.
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http://www.themonitor.com/articles/keeps-33720-appointed-work.html
Sunday, December 20, 2009
For court-appointed attorneys, work keeps coming
Jeremy Roebuck and Jared Janes | The Monitor
EDINBURG — It’s just before 8 a.m., and Robert Capello Jr. is already pacing the halls of the Hidalgo
County Courthouse.
With a satchel slung over his shoulder, he darts from court to court checking which judges have arrived
for the day, conferring with prosecutors and lining up a schedule for the various cases he has on dockets
this morning.
This fast pace and early start are essential for the attorney, who has taken on more indigent cases in the
past five years than any other lawyer in the county. In the first 11 months of 2009, judges assigned him to
361 matters involving low-income defendants, netting him more than $195,000 for his work.
Those payments are just one piece of Hidalgo County’s $8.6 million indigent defense costs this year. But
his efforts — and those of some 200 other lawyers who took on court appointments this year — are
essential to providing justice in one of the poorest counties in the nation.
“We’ve been blamed for the county being out of money — accused of raping the system,” said attorney
Oscar Rene Flores, who took on more than 75 indigent cases this year. “But I think we’re starting to
become victims of those jokes.”
Capello, like many of the highest-paid, court-appointed attorneys, refused multiple requests to be
interviewed for this story over a period of months.
But during the past two years, he has handled the cases of some of Hidalgo County’s most high-profile
criminal defendants — including a Monte Alto teen accused of killing his mother to buy video games, a
Mercedes man who stabbed his cousin 35 times and a gang member who shot and killed an aspiring
speech pathologist days after her graduation from college.
In those three cases alone, he billed the county $41,255 for more than 360 hours of work, according to
checks issued to him by the auditor’s office.
They each required dozens of court appearances, more than two weeks total in trial and hours and hours
of work outside the courtroom.
Attorneys who take on cases like these expect to be compensated for their work at a fair rate, said
attorney Joel Madrigal, who made more than $51,000 off indigent cases this year.
“Sometimes I feel like a wildcatter,” he said. “But I have a lot of experience, and I know what I’m doing.
What is my education for?”
The Board of Judges — a body made up of local state and county court magistrates — adopted that
reasoning in late 2008 when it voted to raise the hourly rate paid to court-appointed attorneys from $70 to
$100 per in-court hour for non-death penalty cases. Rates for out-of-court hours and lawyers working
death penalty cases also received a bump.
The raise helped push total costs from $6.2 million to $8.6 million in just one year and sent budget writers
scrambling, prompting The Monitor’s review of the county’s indigent defense system.
Many outside of the court system unfairly paint the lawyers as the root of the problem, said Flores, the
attorney. Like any other business owner, they have bills to pay and payroll expenses to meet for support
staff.
Before the fee increase, Flores complained, his mechanic was making more per hour for work on
motorcycles than he was for representing indigent defendants in court.
Several attorneys interviewed for this series also reported that judges routinely slash the bills lawyers
submitted at the end of the case.
Some even said that amid the county’s current funding crisis, they were told in mid-September that they
might not receive payment for their work until the start of next year.
Those payments eventually resumed after county commissioners tapped an emergency fund to keep the
checks coming.
“For those of us that put a lot of time, attention and effort into these cases, for them to say, ‘We don’t
have the money to pay you,’ it’s a scary thought,” Flores said.
Still, the cases will keep coming in, the defendants aren’t getting any wealthier, and attorneys like Capello
will continue to show up to defend them.
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http://www.themonitor.com/articles/tricky-33722-budgeting-defense.html
Sunday, December 20, 2009
Budgeting for indigent defense a tricky process
Jeremy Roebuck and Jared Janes | The Monitor
EDINBURG — With just $29 left in the county’s fund to pay court-appointed attorneys and two months still
left in the calendar year, Hidalgo County Budget Officer Raul Silguero didn’t need an accounting degree
to call the situation a crisis.
The lack of money threatened to put dozens of docketed criminal cases in limbo.
County commissioners already were forced to tap into an emergency fund once this year to replenish the
coffer. But a second request for an extra $1 million faced a challenge from some: How could funding
indigent defense in one of the poorest counties in the nation be considered an unforeseen expense?
The number of criminal cases filed in Hidalgo County generally increases each year. Yet the amount of
money budgeted to cover that cost consistently falls short.
For Noé Gonzalez, presiding judge of the 370th state District Court, the math is simple.
“There are two things that are constant — population growth in our area and the increase in crime,”
Gonzalez said. “We must assume that the increase in crime will necessitate an increase in indigent
defense.”
While Hidalgo County’s actual spending on indigent defense has increased more than 64 percent — or by
more than $3.4 million — over the past three years, the amount budgeted to cover that cost has increased
by less than half that dollar amount.
Silguero, who helms the team that drafts each year’s budget, maintains those numbers are misleading.
The annual amount dedicated to indigent defense hasn’t kept pace with actual spending, but the county’s
state and county courts have never been denied what they needed, he said.
Rather, a lack of state funding and a requirement that the county balance accounts each year has forced
his office to be creative to cover the annual expense.
For instance, in the 2010 budget, county commissioners set aside $7.1 million to fund what is projected to
be an $8.6 million expense. But that wasn’t because they weren’t prepared for the actual cost to increase.
For years, they have supplemented the indigent defense fund with money left over from the unpaid
salaries of employees who left work during the year. While judges complain that this tactic makes it look
on paper like their courts are constantly asking for more money, it has managed to cover their costs.
This year, however, budget writers were caught off guard by a $30-an-hour increase for court-appointed
counsel that shifted their hourly rate to $100 for in-court work and $40 out-of-court. Approved by Hidalgo
County’s Board of Judges in late 2008, the raises did not come to the attention of Silguero’s office until
after the 2009 budget had been completed. And sweeping county salaries just wasn’t enough to pay the
bill.
Ultimately, county commissioners agreed on Nov. 10 to approve a second emergency fund infusion that
Silguero hopes will last through next year.
But the crisis demonstrated that the county should set aside more money for indigent defense as it
budgets for future years, said Judge Letty Lopez, who presides over the 389th state District Court.
“We have to realize we have more people and more crime coming in,” she said. “I’m trying to understand
how we just came to realize we’re the sixth-largest county in the state, and this is a cost we’re going to
have to pay.”
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http://www.themonitor.com/articles/team-33721-defense-edinburg.html
Sunday, December 20, 2009
On the indigent defense team, he's the point guard
Jeremy Roebuck and Jared Janes | The Monitor
EDINBURG — If there is anyone who sees Hidalgo County’s indigent defense system from all sides, it is
Isidro Sepulveda Jr.
Hired in 2002 to lead the county’s newly formed Indigent Defense Program, the former court manager
was given two primary goals: help keep jail population numbers down and ensure the county’s
compliance with the 2001 Fair Defense Act, which tightened regulations for providing low-income legal
services.
But since then, his role has informally morphed into that of the county’s penny-pincher, forcing him to
become more like the basketball stars whose plastic figurines he keeps on a shelf behind his desk.
On the indigent defense team, Sepulveda plays the point guard — always keeping an eye on the full court
but relying on teammates to score the game-winning points.
During the past six years, his office has helped create a county public defender system, drawn up a more
detailed method of income screening, and set up a computer networking system that allows attorneys to
talk to their clients without driving to the county jail. Each small step has chipped away at the overall
indigent defense costs in ways that haven’t always been reflected in the current funding debate.
But his limited authority to enact policy changes often leaves him hamstrung. Without support from the
county’s commissioners and judges, there’s not much he can do.
And that support doesn’t come easy.
Earlier this month, Sepulveda met with the Board of Judges — a local body comprised of county and state
judges — to present yet another potential solution for curbing costs: a flat-rate fee schedule that would
cap the compensation for court-appointed attorneys based on the outcomes of their cases.
After weeks of one-on-one discussions with the board’s individual members, opinion surveys with lawyers
and financial analysis by the county’s budget office, he felt confident he was headed into a meeting where
his proposal would pass.
He couldn’t have been more wrong.
Within minutes of reading over his printed one-page pitch, he was cut off.
“I don’t need you to read this to me. I can read,” one judge interrupted.
“The Commissioners Court only deals with numbers,” another complained. “We have to deal with the
Constitution.”
In just a matter of seconds, the conversation devolved from consideration of a specific suggestion to a
rehashing of the entire indigent defense funding debate.
Aspersions were cast at county budget writers for poor planning. Threats were made to issue court orders
should the county cut off payments to attorneys.
In the end, the judges took no action on Sepulveda’s proposal, tabling it for a possible vote at a future
meeting.
To an outside observer, this might look like defeat. But after six years navigating the politics behind
indigent defense, Sepulveda sees it as progress.
“I think it will pass,” he said. “Give it a few more meetings.”
Until then, he’ll keep dribbling the ball until someone is open.
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http://www.themonitor.com/articles/odds-33744-goliath-competent.html
Monday, December 21, 2009
No price too high: Low-income suspects face steep odds without county-funded legal help
Jeremy Roebuck and Jared Janes | The Monitor
EDINBURG — It would have been easy to convict Mitchell Valentine.
His 2-year-old son, Seth, died of a head injury Sept. 12, 2006, while he was the only other person in the
apartment. He waited two hours before bringing the boy to the hospital. And once there, he never reacted
with what emergency responders deemed “appropriate concern.”
For San Juan homicide detectives, the child’s death fit a pattern seen over and over again in the Rio
Grande Valley. A jury might easily have concluded that Valentine killed his son in a heartbreaking case of
child abuse.
They would have been wrong.
Valentine insisted on his innocence from the beginning, but it took two dedicated attorneys and a team of
scientific experts to finally clear him of his capital murder charge — all of which lay well beyond the
unemployed 26-year-old’s meager financial means.
As Hidalgo County continues to grapple with the rising costs of indigent defense, Valentine’s case offers
one example of why footing that bill is so important.
It may be easy to view the $8.8 million the county is projected to spend on court-appointed private
attorneys next year as throwing away taxpayer money on criminals.
It may be easy to question the necessity of legal representation for all when nearly half of cases end in
conviction.
And it may be easy to dismiss Valentine’s acquittal as just an anomaly among the thousands of other
suspects who are truly guilty.
But if justice hinged on what came easy, Mitchell Valentine would still be behind bars for a crime he didn’t
commit — a crime that wasn’t really a crime at all.
“What would you do if you got charged with something like this?” said Alma Garza, one of the attorneys
appointed to take his case. “There’s no amount of money that’s worth anybody’s life.”
‘HE LOVED THOSE CHILDREN’
The case had all the elements of a murder mystery novel with an all-too guessable ending: a dead child,
only one suspect and no clear alternative explanations.
San Juan police charged Valentine two days after Seth’s death.
Officers concluded Valentine had beaten his son to death and staged an accident scene as a cover-up.
His inability to explain what happened and his strange reaction afterward only bolstered their suspicions,
they would later testify at trial.
But to Valentine’s family, that story didn’t add up.
“He loved those children,” said his cousin and close friend, Rhonda Valentine. “He was kind of like a big
child himself.”
She was convinced that — as in any good mystery yarn — the most obvious explanation would eventually
prove to be a red herring. But finding her cousin an attorney who shared that view would come at a steep
price.
With no job, Valentine could contribute next to nothing to his defense. And after talking to dozens of
lawyers in Houston and the Valley, Rhonda found none willing to take on the case for less than $70,000.
She resigned herself to relying on a court-appointed attorney and leaving her cousin’s case in God’s
hands.
“We’ve always been a praying family,” she said. “I just prayed that he would take care of this.”
But in the Texas court system, it’s not God who bangs the final gavel.
‘IT ALL COMES DOWN TO MONEY’
Rhonda — like many who find themselves or family members suddenly thrust into the legal system — had
reservations about relying on a county-subsidized defense team to clear her cousin’s name.
The Sixth Amendment to the U.S. Constitution ensures the right to competent legal counsel for anyone
accused of a crime. But for much of the state’s history, that promise was largely theoretical for low-income
defendants in Texas.
Because the state leaves management of indigent defense largely up to its counties, practices vary
widely depending on where the alleged crime occurred. Defendants routinely languished in county jails for
weeks — or in some cases months — before ever being assigned a lawyer.
Even when that happened, there was no guarantee the attorney would be qualified or willing to put in the
necessary time given the scant compensation most counties offered, a 2000 report by the legal advocacy
group Texas Appleseed found.
“What it all comes down to is money,” Rhonda said. “You have a small percentage that can actually afford
justice on their own.”
The picture Appleseed painted of Hidalgo County’s indigent defense services was damning.
One local private attorney told its authors that he and his colleagues had neither the time nor the
incentive to prepare for indigent cases. A county court-at-law judge said he had a standing policy of
denying experts or investigators to low-income defendants in misdemeanor cases.
“When I was down there initially, it was just terrible,” said Robert Spangenberg, an indigent defense
researcher and a co-author of the Appleseed report.
But much has changed in Texas’ indigent defense system since then.
The Appleseed study’s findings hit the Capitol hard, and in 2001 state lawmakers passed the Fair
Defense Act — a law that for the first time set minimum standards for Texas counties in providing lowincome legal services.
The measure required local governments to develop plans to ensure speedy appointment of counsel, set
standard compensation rates for attorneys and draft methods for vetting lawyers for court-appointment.
Since then, Hidalgo County has made enormous strides toward improving the services it offers.
In the past seven years, per capita spending on indigent defense has tripled, suggesting more money is
devoted to providing adequate representation.
And in capital murder cases like Valentine’s, strict qualification criteria ensure only the most experienced
attorneys are appointed — attorneys like Alma Garza.
PREPARING A DEFENSE
A judge appointed Garza, a former prosecutor with two decades of experience, to Valentine’s case within
48 hours of his request for representation. She brought young civil attorney Jason Honeycutt to the
defense team for his experience in dealing with expert witnesses.
“A lot of attorneys won’t touch a case like this,” she said. “It involved the death of a child. You’re already
fighting against the sympathies of the jury.”
The duo immediately set to work picking apart the state’s case, beginning with the story their client
originally told police.
From the start, Valentine had insisted he was showering the night of Seth’s death and had left his son to
watch television. He heard a crash and came out to find the child on the floor with a 40-pound glass
tabletop pulled from its base by his side.
Valentine maintained that his son tipped the table over onto himself, but police believed he fabricated that
scenario.
As the prosecutor on the case would put it years later, “We don’t know how this man killed this child, but
we know he did it.”
Yet, when Valentine’s attorneys went to re-examine their client’s apartment, they found the tabletop
slightly askew, just as he had described it.
“You could see that the glass didn’t sit quite right,” Garza said. “The table was off center. It could easily
have fallen the way he said it did.”
But with nothing but their client’s word, attorneys had to rely on science.
An engineering expert examined Valentine’s apartment and concluded that the table was structurally
unsound and could have toppled over on Seth.
A physics expert determined the force of its fall on the 2-year-old could have caused fatal injuries.
And a forensic scientist felt certain Seth’s wounds were consistent with the scenario Valentine described.
Each specialist cost the county thousands of dollars but would provide important testimony in court.
Whether the jury would believe them was another matter.
PLEA DEAL
Prosecutors offered Valentine a 40-year plea deal in the weeks leading up to the trial.
And even with science in their camp, Garza and Honeycutt still felt taking the case before a jury could
prove risky. A number of nagging questions remained. Without clear answers to them, their client could
face conviction and a life sentence.
Why had it taken so long after Seth’s injury for Valentine to take the child to the hospital? Why hadn’t he
immediately called his wife or paramedics for help? And why had he reacted so strangely while answering
these questions for officers – as if he didn’t understand or wasn’t concerned with what had just
happened?
Even Garza at times found Valentine’s sunny disposition disquieting.
“He was always agreeable. He always said yes to anything,” she said. “Most of our clients are not that
way.”
It might have been a safer bet for Valentine just to accept the deal.
“I think another attorney might have talked him into it without him really understanding what it meant,”
Honeycutt said.
For many low-income criminal defendants, a guilty plea is often the most painless way to end an
embarrassing and uncomfortable episode in their lives.
On less severe offenses, it can mean a sentence of time served, a stint on probation and the promise of
release from jail long before the time it would take to fight their case in the judicial system.
Even for the most clearly guilty offenders, a competent attorney can do much to mitigate punishment.
From negotiating plea deals to channeling clients into diversion programs that will clear their records, a
good lawyer’s advice can also end up saving the county money on incarceration costs and court time.
A guilty plea for Valentine would have sent him to prison for a significant portion of his life. But even with
the most minor criminal charges, admitting guilt can carry consequences that haunt a defendant for years,
said Jimmy Gonzalez, head of the county’s Public Defender’s Office.
A conviction can lead to ineligibility for jobs in dozens of fields such as education, government and
medicine. Those seeking permanent residency or citizenship in the United States will all but lose any
chance they have of obtaining legal status.
“All they hear in their head is: ‘You can be out of jail tomorrow,’” Gonzalez said. “As a defense attorney, it
just kills you because you know they’re either going to get deported or lose out in other ways.”
Despite Valentine’s submissive nature, the accused man was steadfast on one thing: He didn’t want to
plead guilty.
‘WHY DIDN’T THEY BRING THIS UP?’
Prosecutors brought their case against Valentine to trial in June 2008 — nearly two years after his arrest.
And while there was no guarantee they could clear their client’s name, Honeycutt and Garza had
stumbled upon a significant detail in the weeks before opening arguments that improved his chances
significantly.
During a chance conversation, Garza asked Valentine where he went to high school. He said that he had
always taken special education classes.
When pressed on the matter, Valentine’s family explained that he had an extremely low IQ. While never
diagnosed with retardation, he had always found structured tasks difficult.
He never obtained a driver’s license, he always had trouble holding a job, and he often shut down when
faced with a challenge because of this disability.
“Why didn’t they bring this up earlier?” Garza said, remembering the conversation. “Most lay people don’t
understand how things like this can come into play.”
To Honeycutt, the revelation changed the trial strategy completely. Valentine’s mental impairment cast
serious doubt on whether he had the sophistication to stage an accident scene as police believed and
explained some of his confusion and delay in seeking help for Seth.
Without the paid time for the attorneys to gain the trust of Valentine’s family, it may never have come to
light.
After the other experts had testified, Garza and Honeycutt called one final witness to the stand — a
psychiatrist who concluded through analyzing Valentine that covering up an act of child abuse was well
beyond his mental capacity.
Hours later, the jury returned a “not guilty” verdict.
‘DAVID VERSUS GOLIATH’
Valentine left the Valley soon after his acquittal. His family remains intensely private and protective about
what they describe as one of the worst ordeals of their lives.
But Rhonda says her initial reservations on court-appointed attorneys have abated. In the end,
Valentine’s defense cost the county $75,000 — less than what his attorneys would have charged a
privately paying client in a capital murder case.
“They didn’t just go halfway,” Rhonda said. “They went all the way. I’ve seen less with people that have
the money to hire their own attorneys.”
Next year, more than 15,000 low-income defendants in Hidalgo County will head to court hoping that
court-appointed attorneys can give them what they gave Valentine — the competent defense that state
and federal law guarantees them.
Some will be acquitted or see their cases dismissed. Others will rack up thousands of dollars in legal bills
at taxpayer expense only to plead guilty in the end.
The cost, however, is one that we as a society must continue to pay, Honeycutt said.
“We devote so many resources to catching and convincing criminals, but what about the person looking
at the other end of the system?” he said. “It’s the classic David versus Goliath scenario. Whether you’re
poor or rich, or black or white, you’re supposed to get a fair defense.”
But a year after Valentine’s acquittal, Garza sees the cost of indigent defense more simply:
“You’ve got a person’s life in your hands. You can’t put a price on that.”
----COMING TOMORROW: AN UNDERUTILIZED SOLUTION TO THE COUNTY’S INDIGENT DEFENSE
COSTS
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http://www.themonitor.com/articles/tricky-33743-county-verification.html
Monday, December 21, 2009
Income verification a tricky task in Hidalgo County
Jared Janes and Jeremy Roebuck | The Monitor
EDINBURG — The thick stacks of forms the indigent defense office receives each day from the county’s
inmate population range from written screeds on the criminal justice system to more practical requests for
extra toilet paper.
But one inquiry appears over and over: “When is my next court date?”
These inmate request forms are the most reliable means of communication the 1,200 inmates at the
Hidalgo County Jail have on their case status, attorney name or trial date, said Saul Javier Sosa, a
supervisor for the indigent defense coordinators.
And the three employees who read and respond to the forms constitute the primary conduit through which
the county complies with elements of the 2001 Fair Defense Act, a state law that requires counties to
quickly provide appointed lawyers to indigent defendants.
“These guys are their light at the end of the tunnel,” Sosa said, of his employees. “We’re how they know
they’re not forgotten.”
The coordinators toil in a cramped workspace hidden in the back of a courtroom at the jail.
From there, they screen thousands of inmates to determine indigence, distribute cases among the
county’s public defenders and private attorneys and verify that the lawyers meet with their clients within
two days of their assignment to a case.
As counties across the state re-examine their indigent defense systems, this small office offers insight into
a critical question: What’s the most cost-effective way to determine indigence?
Hidalgo County’s large low-income population and its high number of illegal immigrants make ferreting
out defendants who lie about their income or assets a complicated task.
More than 70 percent of the county’s adult defendants got a free attorney last year – a higher percentage
than any other urban county in Texas besides El Paso.
Many involved in the system acknowledge some of those defendants could have paid an attorney
themselves, leading to questions of whether the county does enough to verify their claims of indigence.
But others worry a comprehensive income verification system won’t catch enough cheaters to justify its
cost.
Instead, the coordinators wheel carts topped with laptops down the white-tiled hallways of the county jail
each day to interview inmates through their cell doors.
They ask general questions about the inmates’ income, assets and monthly expenses to determine
whether they qualify for a court-appointed lawyer. They don’t verify the truthfulness of that information,
but they hope the inmates’ answers flag some as capable of affording their own representation.
Still, the defendants the coordinators screen at the jail are still only a small percentage of the 15,600 who
requested and received a county-funded defense from Hidalgo County taxpayers last year.
Some inmates will bond out of jail before the screeners have a chance to interview them. Others accused
of a crime will be arraigned and released by a municipal judge or justice of the peace without ever setting
foot in the jail.
Usually facing misdemeanor charges, those defendants will later appear before a state district or county
court-at-law judge, who is forced to determine indigence on the fly using only a few basic questions. If the
judge decides they can’t afford an attorney, he will appoint them one on the spot.
It’s a system that works for now as Hidalgo County seeks ways to improve the process.
But until those solutions are found, the indigent defense coordinators will continue their daily rounds. And
they will keep responding to the stacks of letters inquiring about the next court date or a little extra toilet
paper.
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http://www.themonitor.com/articles/county-33765-indigent-complains.html
Tuesday, December 22, 2009
Texas counties take different approach to common indigent defense problem
Jared Janes and Jeremy Roebuck | The Monitor
Cameron County Judge Carlos Cascos complains his county’s taxpayers fund both the prosecution and
the defense in murder trials.
His county isn’t the only one.
Statewide costs for indigent defense have doubled — from $90 million to $180 million — since the state
Legislature passed the 2001 Fair Defense Act requiring counties to make sweeping changes to their
indigent defense systems.
Driven in part by high-profile murder trials, Cameron County’s piece of that total has doubled in the past
two years to $1.9 million.
Like other elected officials, Cascos sees the high costs for indigent defense, but he’s not exactly sure how
to address them.
“The taxpayers are not ATM machines, but I don’t know how to change it without violating all these
rights,” Cascos said. “It’s something that has to be looked at.”
Bad economic times often lead to more crimes and to more people needing court-appointed attorneys.
But property tax revenue — the primary funding source for the state’s local governments — has been on
the decline, and cash-strapped counties are increasingly looking at ways to save on indigent defense.
Here are innovative options other counties are using:
CAMERON COUNTY
In the state’s county jail system, nearly half the inmates are waiting for their day in court.
Inmates classified as pretrial made up 48 percent of the jail population in 2006, according to the Texas
Task Force on Indigent Defense. That’s compared to 22 percent of those who were actually convicted of
their crimes.
Reducing the jail population is the single largest cost-saving measure a county can implement, said Kevin
Saenz, director of Cameron County’s recently formed pretrial services program. But in most cases, law
enforcement officers are more at fault than the court systems for the inmate population.
Officers who arrest someone may wait days to file a report.
Implementing a direct filing process where all officers need an arrest report to book someone at the
county jail reduces delays in the criminal justice system, Saenz said. It allows the district attorney to
immediately consider the case and move it along.
“It’s frontloading the system,” said Saenz. “If you catch everything on the front end through a direct filing
system, it will save thousands and thousands (of dollars).”
Hidalgo County does not have a direct filing system.
--WEST TEXAS
Capital murder defense is expensive.
An indigent Harlingen woman convicted in the beating death of her daughter cost Cameron County
$142,000 in attorney’s fees, and that doesn’t count the costs for ongoing appeals.
In West Texas, 70 counties banded together to do something about the steep costs.
Using a grant from the state task force, the counties established the West Texas Regional Public
Defender in November 2007 to provide quality capital defense at an affordable, predictable cost.
Headquartered in Lubbock, the office provides a team of public defenders and investigators who
represent defendants in murder trials across the region.
Each county pays a predictable yearly fee to take part in the cost-sharing system, and the office saved
counties more than $400,000 in legal fees in its first year.
In Hidalgo County and the rest of the Rio Grande Valley, capital murder defense is handled by private
attorneys who sometimes charge tens of thousands of dollars for a trial.
--TARRANT/COLLIN COUNTY
Several other counties are screening more defendants to ferret out ones who lie about their income to get
a free attorney.
Affluent Collin County reduced the percentage of defendants who get a free lawyer when it implemented
an aggressive income verification system that uses data from Medicaid, the local appraisal district, the
Texas Workforce Commission and private vendors to prepare a complete picture of a defendant’s ability
to pay.
But in Hidalgo County, where many live at or below the poverty line, there is concern the county could
spend thousands of dollars to verify each defendant’s information.
And it could be left with the knowledge it already has: 70 percent of the county’s criminal defendants can’t
afford to pay for an attorney.
Many counties find it cost-effective simply to screen defendants for indigence, said Holly Webb, Tarrant
County’s criminal court manager.
Financial officers crisscross Tarrant County each day to help defendants at up to 40 booking agencies fill
out financial forms and to question the defendants about the information they provide.
The financial officers don’t verify what the defendants’ claim, Webb said. But the officers often find asking
the detailed questions is enough.
“We didn’t see a cost savings, but we did see the rise in indigent costs stabilize” when Tarrant County
implemented the program earlier this decade, Webb said.
Hidalgo County budget administrator Raul Silguero said implementing a similar system here would save
the county $2 million annually if one-quarter of criminal defendants were found ineligible for indigent
defense.
Collin County, for example, found 30 percent of its defendants asking for a free lawyer did not qualify.
Right now, only a small percentage of inmates at the Hidalgo County Jail are screened for indigence.
--HIDALGO COUNTY
In August, attorney Jaime Roel Garcia submitted a voucher that required approval from the Hidalgo
County Commissioners Court.
The problem? Garcia failed to bill the county for work done from June to August 2005 in a timely manner.
The court agreed to pay the work claimed on the voucher, but a proposed fee schedule could prevent
future submission of late vouchers.
The fee schedule establishes 11 new guidelines for court-appointed attorneys to follow, including setting
a six-month window of time in which lawyers may submit vouchers. But it also caps what an attorney will
be paid for certain work on a per-case fee rather than an hourly basis.
The fee schedule — proposed by Indigent Defense Program Director Isidro Sepulveda Jr. — is similar to
one used in El Paso.
Some attorneys are concerned a fee schedule could lead to rushed work if they know they will be paid the
same regardless of how much time they put into a case.
But Joel Madrigal, who took on more than 200 court-appointed cases this year, said it reduces some
guesswork in filling out hourly vouchers.
“Frankly, I see the hourly fees as difficult,” Madrigal said. “It’s ridiculous to say what time did I come into
the courtroom and what time did I leave. (The county) is setting (itself) up to paying more than what is
necessary.”
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http://www.themonitor.com/articles/public-33766-knows-attorneys.html
Tuesday, December 22, 2009
Other counties push public defender's offices
Jared Janes and Jeremy Roebuck | The Monitor
Thomas Lindenmuth never knows what to expect in the courtroom.
He and the other attorneys who work in McAllen’s Federal Public Defender’s Office are appointed clients
accused of anything from illegal immigration to drug smuggling.
“We don’t pick our clients — that’s the bottom line,” said Lindenmuth, one of 55 attorneys who represent
indigent defendants in courts across the federal court system’s Southern District of Texas. “We never
know what’s going to come through the door.”
But unlike Hidalgo County’s office of public defenders, Lindenmuth’s staff know they can always count on
a steady stream of work.
They are part of a national system of public defenders, who represent 60 percent of the indigent in federal
courts.
In McAllen, where Lindenmuth’s office is automatically appointed to all misdemeanor and felony
immigration cases, he and his colleagues take on close to 85 percent of all cases.
If Hidalgo County wants to better utilize its own county-employed attorneys for the indigent, it could learn
a lot by examining other such programs at both the federal and state level.
In Texas, public defender’s offices range in size from the five Bexar County attorneys who only handle
cases on appeals to the 90-plus attorneys in Dallas County who took on more than 45,000 cases in adult
and juvenile criminal courts last year.
Only about half a dozen offices across the nation — including Hidalgo County’s — are solely assigned to
the misdemeanor courts, a national expert on indigent defense systems said. And the percentage of
cases allocated to the public defender’s office ranges from as high as 90 percent in Bowie County to less
than 10 percent in Hidalgo County.
While their roles may differ from state to state and county to county, public defenders generally provide a
necessary and effective alternative to the appointed counsel system, said Patrick McCann. The Houstonbased criminal defense attorney joined a state senator in lobbying to establish a public defender’s office
there earlier this year.
Before Harris County commissioners agreed to set up that office, their county was the largest urban area
in the nation without one.
There is still an outdated perception that public defenders are unqualified, overworked attorneys who are
paid to quickly move cases along with a guilty plea, McCann said. Instead, they actually provide a quality,
cost-effective defense that is often unmatched by private attorneys.
“If you look at the stats, a public defender’s office is very easy to defend,” he said. “The proof is around us
that these things work effectively.”
McCann, past president of the Harris County Criminal Lawyers Association, sees the issue in terms other
than dollars and cents.
In Harris County, criminal defense attorneys who take court-appointed cases are matched against a wellfunded district attorney’s office with hordes of investigators. The district attorney’s budget is more than
double the amount the county spends for indigent defense, and case loads for court-appointed, private
attorneys — some of whom were making significant sums off the system — greatly exceeded national
standards.
A public defender’s office is a way to even the playing field in terms of resources and funding, said
McCann. But the offices will always be prone to resistance from judges who are afraid of losing cost
control of a case or from private attorneys who view them as an economic threat.
In Webb County, where an office that handles 75 percent of all criminal cases is entrenched as part of the
justice system, Chief Public Defender Hugo Martinez’s decision to place his attorneys in the juvenile
courts last year infuriated some private attorneys.
The juvenile appointments weren’t lucrative but were plentiful enough to cause a stir among lawyers who
depend on the appointments to earn extra money, Martinez said. He defended the move as providing
juveniles the same service he offers in adult courts.
Still, the outcry from the attorneys last year was a far different reaction than their attitude toward indigent
defense when his office was first established in 1988. Back then, rich attorneys who saw court
appointments as a low-paying nuisance were permitted to “opt off” the appointment list by paying their
own money into a fund set up to supplement the pay of others who did the work.
Now, more attorneys would prefer to opt into the system.
“From the attorney’s standpoint, it’s pure economics,” Martinez said. “From the judiciary standpoint, it’s
politics. You can have a lot of resistance from both sides.”
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