How judicial conflicts of interest are denying poor Texans their right to an effective lawyer
For decades, Texans who can’t afford a lawyer have gotten caught in a criminal justice system that’s crippled by inadequate funding and overloaded attorneys. A growing body of caseload data — and a recent lawsuit — point to an even more fundamental hazard: the unchecked power of Texas judges.
This story is a collaboration between The Texas Tribune and Texas Monthly.
It was going to be his last shift at the Velvet Lounge, and all Marvin Wilford felt was relief. It was November 11, 2017 — Veterans Day — and as he got dressed for work, Wilford put on his scarlet-colored Marine Corps cap. The Velvet Lounge, a strip joint in North Austin, billed itself on Facebook as “the official afterparty for the city,” but Wilford couldn’t say he had fun: As a doorman, he collected cover charges from 10 p.m. to 6 a.m. and did a lot of standing, sometimes outside. That evening, the temperature was in the 60s. Over his T-shirt and jeans, Wilford pulled on a green hoodie.
It wasn’t that he felt ungrateful. Bald, with an athletic build, the 61-year-old was a year away from collecting Social Security, and his veteran’s pension didn’t quite cover the bills. The club paid $100 a night—not the kind of money he’d made running his own building-and-maintenance company once upon a time, but enough to supplement what his wife, Christine Wilford, brought in as a technician at Voltabox, a company that specialized in lithium-ion batteries.
In fact, Marvin Wilford felt lucky. After serving as a combat Marine in Vietnam, he’d gotten in serious trouble. In 1991, he’d been arrested after assaulting a police officer and was sentenced to prison for 20 years. He’d been released early, but then in 2006 he’d been arrested for assaulting an ex-girlfriend and was sentenced to another 10 years. A diagnosis in 2015 of post-traumatic stress disorder, and medications, had given him a new start, but no one wanted to hire an aging felon. His nephew, who owned the Velvet Lounge, had thrown him a lifeline.
Still, after three months at the gig, Wilford was done. He’d had hernia surgery, and he was walking with a cane. Christine Wilford had been sick, too, wracked by a nagging cough. The club, with its drunken brawls, was too unruly a scene. “This is not working for me,” Marvin Wilford muttered to himself, throwing his cane in the car and heading west on U.S. 290. “There’s gonna be trouble.”
Sure enough, trouble came at around 4 a.m., when a fight broke out by the dance floor and a security guard, a 42-year-old named James Jones, escorted two women outside. Wilford, standing by the door, watched as Jones led the disheveled pair — one with no shoes — toward the parking lot. He and Jones had become friends, bonding over the troublesome revelers they had to deal with. Jones liked to call him Unc, out of respect.
“F— all you security guards!” yelled one of the women. She and her friend stumbled toward a car, vowing to return. Then they sped off.
Twenty minutes later, the same car screeched back into the parking lot. By this time, other patrons were spilling out onto the sidewalk. Though accounts of what happened next vary, multiple witnesses would later say they saw one of the women get out of the car, brandishing a tire iron, and lunge at the gathering crowd. Jones saw the woman strike Wilford. Wilford recalls trying to keep her away from other patrons. Someone hit the woman over the head with an empty vodka bottle. Someone else stomped on the hood of the car.
“She was trying to fight everybody,” Jones later recalled. Quickly, the security guard grabbed his pistol and shoved it into her hip. “Let go of the weapon or I will shoot you,” he warned.
Instead, the woman rushed back into the melee. Jones and Wilford heard gunshots from somewhere in the parking lot. “Unc, go in the club,” yelled Jones. Wilford ran inside as Jones pointed his pistol into the air, firing two warning shots. The crowd dispersed.
By the time the police arrived, just before 6 a.m., the fighting had ceased. Several officers interviewed those on the scene — Wilford, Jones, some additional security guards and the woman who had charged the crowd, whose head appeared to be bleeding. No one was arrested. When Wilford finally got in his car to drive home, it was light outside. “I’m through,” he told Jones before leaving. “Too much madness over here.”
The security guard nodded. “I don’t blame you,” he replied.
Five weeks later, Christine Wilford was going through the mail when she opened an unsolicited form letter from a lawyer — she does not recall who — offering his legal services. Her breath caught when she saw why. There was a warrant for her husband’s arrest, read the letter. The charge: aggravated assault with a deadly weapon, a second-degree felony.
The charge didn’t make sense. As a felon, Marvin Wilford wasn’t allowed to own a gun, and didn’t. Neither he nor his wife had heard from the police. As Wilford skimmed the letter, his head began to throb. With his criminal record, a new conviction could earn him a life sentence. He felt his lungs constrict. He couldn’t breathe. Alarmed, Christine Wilford called the Veterans Crisis Line. Her husband was having an anxiety attack, she blurted into the phone.
Nine days later, on Dec. 29, the couple drove to the Austin Police Department headquarters downtown to turn himself in. Marvin Wilford had spent several days at a Veterans Affairs hospital because of his panic attack. Now, sitting with a detective in an interrogation room, he learned that the officers who interviewed him at the Velvet Lounge had not found him credible. The woman in the fight claimed that she’d been threatened with a gun by a man wearing jeans and a green hoodie; she later picked Wilford out of a photo lineup. According to a police affidavit, Jones told the officers that Wilford kept a gun in his car. (Jones denies this, and when the officers checked the car that night, they found only Wilford’s cane.) There was video evidence from a witness, the detective told Wilford, as he turned on a laptop.
Watching the chaotic cellphone footage, Wilford tried to protest. Yes, there he was, in his green hoodie. But, he pointed out, he was clearly holding a cane, not a gun. And Jones, he added, had recently learned of his warrant and willingly signed a notarized statement to support him, affirming that Jones, not Wilford, had pulled the gun and fired it. Surely the police were interested in that?
The detective wasn’t persuaded. As Wilford was placed in handcuffs, his heart raced. He could not afford a lawyer. His wife’s job barely paid the bills, and their impending property tax payment that year — $4,500 for the home they’d inherited from his mother, in East Austin — loomed large. “I was really angry to be accused of something I didn’t do,” he said later. “Especially with the record I have.”
In 1963, the U.S. Supreme Court ruled in Gideon v. Wainwright that a person accused of a felony is guaranteed counsel even if the person can’t afford a lawyer. How exactly that counsel is provided, however, was left to states to decide, and in Texas, this “how” gets further relegated to the state’s 254 counties — meaning that each county decides how to appoint, and pay, lawyers for the poor. Last fiscal year, there were roughly 474,000 indigent cases in Texas. There are 19 public defender’s offices, which 39 counties rely on in some capacity, but the majority of counties contract with private lawyers, who are generally paid a modest flat fee per case. (This is the most common way that states fulfill their Gideon v. Wainwright obligations.) More than 150 counties also participate in a public defender program for death penalty cases.
Travis County, where Wilford was booked, has a limited public defender program — it serves juveniles and some mentally ill defendants — but relies primarily on a system of managed assigned counsel, in which an independent office assigns cases to a rotating cast of more than 200 private lawyers. After being transferred to the county jail in Del Valle, on the outskirts of Austin, Wilford waited.
He’d taken a few college classes on law after Vietnam, and he knew enough to feel hopeful. Surely his lawyer would look into his story. One evening in early January, he went to bed early — he was sleepy from the jail-issued anxiety meds — only to be shaken awake by a guard at 9 p.m. His lawyer, Ray Espersen, was there to see him.
A 58-year-old with strawberry-blond hair and thin glasses, Espersen was one of Austin’s most prolific lawyers: The previous year, he’d been paid for work on 331 felonies and 275 misdemeanors in Travis County, as well as 46 felonies in neighboring Williamson County — more cases than nearly any other Austin-area attorney. Such was Espersen’s workload, in fact, that in 2015 it had caught the attention of the public, when local TV station KXAN reported on the high number of cases appointed to him (the equivalent workload, by later estimates, of that of at least three and a half lawyers). After the report, the district attorney’s office had opened an investigation into apparent discrepancies between the number of jail visits that Espersen had billed to the county and those recorded at the Travis County Sheriff’s Office.
Wilford did not know this. What he did know was that as he tried to explain — about the video, about the gun, about Jones — Espersen didn’t seem to be listening. The visitation room was tiny, and the two sat practically knee to knee, but “he was looking at the floor, scratching his head, looking everywhere but at me,” Wilford recalled. According to Wilford, Espersen’s laptop remained closed, and he took no notes.
“Well, have your wife send me that video,” Espersen said at last, according to Wilford. (Espersen declined to comment for this story.)
“Hey,” said Wilford sharply, “I was just woken up to come talk to you, and I’m trying to tell you what happened because you asked. Now you’re not listening.”
According to Wilford, Espersen asked him to press the button that opened the room’s door. Unsure of what else to do, Wilford complied.
He would not see his lawyer again for six months.
Indigent defense in the U.S. is in crisis. More than 20 lawsuits filed in the past decade on behalf of poor plaintiffs — in California, Louisiana, Georgia and other states — point to this predicament, which has been acknowledged at the highest levels: In 2013, in a speech marking the 50th anniversary of Gideon v. Wainwright, then-U.S. attorney general Eric Holder bemoaned the number of unjust convictions and sentences borne by the poor. “This is unacceptable,” he declared, “and unworthy of a legal system that stands as an example to all the world.”
The main reason for this crisis is funding. Because the Supreme Court did not, in its 1963 ruling, specify how states should pay for counsel, local policymakers facing other costs — for schools, roads, law enforcement — consistently shortchange indigent defense. This is why public defender’s offices are chronically understaffed. It’s also why court-appointed private lawyers are overloaded: The fees they’re paid are often so low that they are forced to take on a multitude of cases just to make a living. Some overburdened lawyers, in turn, contribute to so-called plea mills, in which, critics say, they encourage defendants to plead guilty because they are either too swamped to investigate claims or incentivized not to. (In Travis County, for instance, court-appointed lawyers are paid $600 for a felony case whether they secure a plea deal or get the charge dismissed.)
The problem of funding is especially acute in Texas. Since 2001, when the state legislature passed the Fair Defense Act — a law that aimed to overhaul and standardize how the state’s poor received counsel — total spending on indigent defense has increased significantly, from some $91 million in 2001 to roughly $273 million in 2018. But Texas ranks among the states that spend the least per capita: Its counties, which shoulder most of the costs, are some of the fastest growing in the country, and what little the Legislature chips in to help — some $30 million last year — does not match demand. This creates a woeful game of numbers on the ground. In 2017, for example, the average court-appointed lawyer in Texas made only $247 per misdemeanor case and $598 per felony.
However, the problem goes beyond money. In Texas, the crisis is exacerbated by a key structural flaw: Indigent defense is largely overseen by judges. Contrary to the American Bar Association’s principles of public defense, which call for defense lawyers to be independent of the judiciary, judges in most Texas counties decide which lawyers get cases, how much they are paid and whether their motions — say, to reduce bail or test DNA — have merit. (Counties do have fee schedules for lawyers, but judges set the schedules and retain discretion over payment.)
Given that judges are elected based, in part, on the efficiency of their courts, this is an inherent conflict of interest. “Whatever the judge wants to do, it’s probably not acquit your client,” said Charlie Gerstein, a lawyer for Civil Rights Corps, a Washington, D.C., nonprofit that has spent the past several years challenging criminal justice abuses around the country. “The judge wants to move the docket. The judge wants to get reelected.” (Civil Rights Corps filed the class-action lawsuit against the bail system of Harris County in 2016.) Lawyers trying to work a case properly — by devoting more time or requesting an investigator — face a quandary: Why make the effort if a judge can retaliate by appointing them to fewer cases or cutting their pay?
In 1999, Houston Democrat and then-state Sen. Rodney Ellis introduced a bill that would, among other things, transfer oversight of indigent defense attorneys from judges to county officials. The Lege approved the measure, but judges, lawyers and prosecutors resisted, writing more than 300 letters to then-Gov. George W. Bush. (“The bill inappropriately takes appointment authority away from judges, who are better able to assess the quality of legal representation,” said Bush in his veto proclamation.) Two years later, Ellis helped muscle through the Fair Defense Act, which provided, for the first time, some funding and oversight by the state, in the form of an agency now known as the Texas Indigent Defense Commission. The TIDC was tasked with administering funds, enforcing standards and responding to violations. But the law was also clear: “Only the judges ... or the judges’ designee” was allowed “to appoint counsel for indigent defendants in the county.”
For a long time, the combined effect of this judicial control and lack of funding — heavy caseloads, underserved defendants — was hard to quantify. But a surprisingly trailblazing move by the Legislature in 2013 gave Texas something almost no other state that relies on private attorneys has: comprehensive data. That year, lawmakers ordered every county to start reporting to the TIDC the number of indigent cases, and fees, given to lawyers in every court. They also instructed the TIDC to conduct a study on appropriate caseloads, the first of its kind mandated by a state government.
In 2015, the study’s results were released: In any given year, researchers found, a Texas lawyer could reasonably handle 128 felonies or 226 misdemeanors, or a weighted combination of the two. This set a benchmark against which to understand the growing database, which showed lawyers juggling two, three or even four times that load. Even the director of the TIDC at the time, Jim Bethke, said he hadn’t known “the magnitude of people who were getting run through the system on a super mass conveyor belt.”
Today, the TIDC database is staggering in its reach. With just a few clicks, anyone can look up lawyers by name and see how many indigent cases they took, and in what court and for how much. Finding the highest-earning attorney, or the most overloaded, takes minutes. Consider just a few names: In Harris County, in fiscal 2017, James Barr earned more than $131,000 for work on 433 indigent felony cases, which all came from the court of Judge Jim Wallace. In the Panhandle, Artie Aguilar won a contract in fiscal 2018 to handle all indigent felony cases in Dawson, Gaines, Garza and Lynn counties — a total of 322 cases, for a payment of $75,000. T. D. Hammons, who takes cases around Amarillo, was paid $99,450 in fiscal 2017 for work on 129 felonies and dozens of misdemeanors. He reported that these took up less than 60% of his time, meaning that the rest of his time was devoted to additional clients.
Astonishingly, few judges — or lawyers or lawmakers — seem to be aware of these figures. Those who are will sometimes argue that caseload limits are unrealistic; it’s too arbitrary, they say, to impose a number when situations vary from county to county, or when judges are faced with too many defendants and too few defense lawyers. But as Texas grows and funding continues to lag, these figures offer a place to start—and one thing they show is that judicial oversight of an indigent defendant’s right to a lawyer is becoming untenable.
Just how untenable is left to poor defendants like Marvin Wilford to wrestle with — and for quixotic challengers around the state to try to change on their own, as one young, newly minted attorney named Drew Willey discovered for himself. After graduating from the University of Houston Law Center in 2014, the green-eyed, sandy-haired 27-year-old learned that he couldn’t take indigent cases in Harris County right away — the public defender’s office was too small and competitive, and court appointments required a few years’ experience. So he’d ventured into nearby counties, and soon he found work in the misdemeanor court of Judge Jack Ewing, in Galveston County. There, Willey was assigned to the case of an 18-year-old named Wayne Lucas.
Lucas had been charged with burglary of a vehicle. But when Willey went to see him in jail, Lucas told a different story. He claimed that he’d been biking to a convenience store to buy cigarettes when a screw from his bike flew off. He’d been looking around for the screw, he said, when police officers showed up, saying that a witness had reported to 911 that a man who fit Lucas’ description was jiggling the door of a car in a driveway. The officers said the witness had filmed it with his cellphone.
Willey set into the case’s details. It was strange that Lucas was charged with burglary, rather than attempted burglary, since nothing had been reported stolen. The police report mentioned the video, but after Willey requested it from the district attorney’s office, he never got it. Willey asked Ewing to appoint an investigator, who interviewed the witness. The witness said that all he’d seen was Lucas try to open the car door without success. The witness also denied taking a video.
It was clear there wasn’t much of a case for burglary. Willey persuaded prosecutors to let Lucas plead to criminal mischief, a misdemeanor that he could eventually get expunged from his record. Lucas, who was training to become a manager at a Jersey Mike’s sandwich shop, was thrilled. He’d been in and out of jail enough times as a juvenile. “I just wanted to get my life going,” he said.
Things would not be as straightforward for Willey as for his client. When the lawyer submitted a voucher for $1,320 for his work, Ewing approved only $511, citing “excessive out-of-court hours.” (Although Galveston County pays attorneys by the hour, the court “expects no more than 3.0 hours for appointed counsel to visit with defendant, secure offer from District Attorney’s Office, convey offer to defendant and appear in court for the plea or modification.”) Willey filed two appeals, after which he received the full amount.
But Willey soon found himself in a pattern. When he secured a dismissal in another case and asked for $528, Ewing approved $330. (This time, Willey’s appeal was denied.) When he asked for an investigator again, Ewing denied the request. Meanwhile, Willey also began filing lengthy motions on behalf of clients who had been assigned to Galveston’s jail docket — a system in which defendants who couldn’t afford bond were forced, as he saw it, to plead in a hurried, assembly-line fashion. Then, in May 2016, Willey found out that four cases he’d been working on had been assigned to another lawyer.
Willey tried for several weeks to get a clear explanation from Ewing. Finally, in mid-July, he sought the judge out in his chambers. Worried that Ewing would claim that he’d been an ineffective lawyer, Willey decided to record the conversation so he’d have evidence of their exchange. (It is legal in Texas to record outside the courtroom and without the other party’s consent.) “Whoever I feel I need to appoint, I’m going to appoint,” the judge told Willey. Willey couldn’t argue with that. But why, he asked, remove him in the middle of these cases? Didn’t changing attorneys midstream hurt a defendant’s ability to get the best representation?
Ewing grew impatient. In the year and a half he’d been a judge, he explained, Willey was “the only attorney that has, on almost every case you’ve had in my court, asked for an appointment of an investigator.” (Willey says he asked twice.) Normally, he added, attorneys in his court billed three hours for pleading out a case, for about $198.
“I applaud your wanting to help and get the best deal you can for these people,” the judge continued, but Willey’s bills were excessive. “I can only count and pay for what would be reasonable.” (When reached for comment, Ewing did not dispute the words from Willey’s recording. But, he stressed, context was important. He wasn’t the only one to deny Willey’s full requested payments; so had two other judges in Galveston County, and Willey had not contested those. As for the reassignment of Willey’s jail docket cases, Ewing pointed out that the lawyer he gave them to had, unlike Willey, 28 years of experience. Furthermore, according to Ewing, it is not uncommon for jail docket defendants with other pending cases to be reassigned to lawyers who are already representing them.)
Willey was stunned. He was caught in a system, he realized, that didn’t allow him to really represent his clients. The judge, forced to apportion scant resources, was caught, too. “How could things have grown this bad?” Willey wondered as he left the judge’s chambers. “How could nobody stand up?”
Back in Travis County, Wilford tried to clear his head. Had he offended his lawyer? Did he still have a lawyer? Espersen had given him a business card. Before heading back to his cell, Wilford placed a call to his wife. The meds were making him fuzzy, he told her; he was worried he’d messed up, and he needed her to call Espersen.
Christine Wilford was used to calls from jail. She and Marvin Wilford had married in 2006, right as he began his second stint in prison, and much of their relationship had been defined by bars. A native of France, she wore small, chunky-frame glasses and kept her hair in golden-brown braids; a tattoo on her wrist featured her husband’s nickname, Blocko, in cursive letters. She told him not to worry.
The next morning, she reached Espersen, who briskly confirmed that he was her husband’s lawyer. But over the following few weeks, according to Christine Wilford, Espersen did not pick up or return her calls. Marvin Wilford called Espersen, too, with no success. The veteran tried to distract himself, doing push-ups in his cell and reading the Bible (“the book of Psalms, all the way through,” he said). Christine visited on Wednesdays and Saturdays, and the two became friendly with his cellmate, a former Army Ranger.
At least twice, Wilford was given a court date only to learn that the hearing was delayed. By late March, he had sat in jail for almost 12 weeks with no word, according to him, from his lawyer.
What neither he nor his wife knew is that this was exactly how things were not supposed to go in Travis County. More than three years earlier, on the initiative of a judge named Mike Lynch, the county had revamped the system by which it provided for poor defendants. Lynch, who was well known around the courthouse — he’d worked as a defense lawyer, a prosecutor and for two decades as a judge — had grown troubled by the role of judges in overseeing indigent defense. For one thing, no one had the time to assess defense lawyers’ performances. The judges convened over lunch twice a year to review which attorneys were qualified to take appointments, but the process felt arbitrary and time consuming.
There were also disagreements over pay and allegations of favoritism. Although judges were supposed to appoint attorneys from a rotating “wheel” of names, they often did not; in 2014, for example, courthouse records showed that judges made almost half of their appointments from the bench. (“Several of them were always assigning the same handful of lawyers,” said criminal defense lawyer Betty Blackwell.) This meant that some lawyers got an overabundance of cases, while others felt overlooked. Amber Vazquez, a lawyer known among defendants as the Queen of Acquittals, said she was removed from the wheel in 2012 after multiple disputes with different judges. “I was challenging everything, as a defense attorney is supposed to do,” said Vazquez. “Then the pushback started.”
With a committee to help him, Lynch searched for an alternative. A full public defender’s office was too expensive — some $33 million a year — and would likely meet with resistance for cutting into private attorneys’ income. So instead, Lynch turned to managed assigned counsel, a model pioneered in San Mateo County, California, that had also been adopted in Lubbock County. In that system, the government still contracted with private lawyers, but an independent office — rather than the judges — oversaw appointments and payments. Lawyers had strict caseload limits and easy access to investigators, they were paid not just for taking cases but also for filing motions and working outside the courtroom, and they received frequent performance evaluations.
Intrigued, Lynch drafted a proposal to create a similar model in Travis County, and in early 2015, an independent office known as the Capital Area Private Defender Service opened its doors in Austin. In legal circles across the country, the move — highly significant for an urban county in Texas — was hailed with cautious optimism. Austin Lawyercalled it “the culmination of decades of uneven attempts” to establish fair representation for the poor, while a government study out of Michigan would eventually report that “CAPDS provides a high quality model for reform.”
The office, located for a time on the seventh floor of the Travis County courthouse, was tiny, with no windows, and its first two employees — executive director Ira Davis and his deputy, Bradley Hargis — had experience as court-appointed attorneys, though none in a public defender’s office. Still, things felt hopeful. The next hire, Trudy Strassburger, had recently moved to Austin after working as a managing attorney at the Bronx Defenders in New York. She brought the energy of an outsider, as well as expertise in “holistic” defense: the idea that effective representation of low-income people requires not just legal but also social support. She persuaded the office to hire an immigration lawyer and two social workers.
Almost immediately, bench appointments plummeted. And now that lawyers did not have to persuade a judge to pay for an investigator — they asked CAPDS instead — investigations increased, from fewer than 100 per year to more than 400 per year. (The number of case dismissals also increased.) Any lawyer who wanted to receive appointments had to apply with a review committee; an analyst crunched numbers on case outcomes. Frustrated families could call CAPDS if they were having problems. “All day long, the phone rings,” Davis told me.
Christine Wilford learned about CAPDS from a social worker. Desperate for help, she asked the social worker to call the office. Was Espersen still even her husband’s lawyer? Yes, came the answer. But, according to the Wilfords, they still did not hear from him. A court date of March 29 came and went with another continuance.
Finally, in the early morning of April 12, Christine Wilford received a call from her husband’s cellmate, who said that Marvin Wilford was on his way to court. She drove downtown, arriving at the courthouse well before 9 a.m. She made her way past security, up eight floors, to the courtroom of Judge Karen Sage, where she’d been told she’d see Wilford. Before taking a seat, she found the bailiff.
“Do you know if Mr. Espersen is here?” she asked. She had no idea what he looked like. After a prosecutor pointed him out, in an area reserved for lawyers and court staff, Christine Wilford waited for him to approach her.
Espersen declined repeatedly to be interviewed for this story, though I called and emailed many times over several months and followed him around the courthouse for a week. (When I asked for a chance to explain my reporting and include his perspective, he replied, “I like surprises.”) By all accounts, however, he is well liked by Austin’s judges, who appreciate his knowledge of Spanish and his willingness to take on unpalatable cases, such as aggravated sexual assault.
“He’s got tough skin, and he’s competent,” said Judge Brenda Kennedy, who has appointed him in the past to deal with uncooperative clients. “He’s still able to represent and sometimes get results for them.”
He is known as much for plowing through his daily caseload — 11 court proceedings on average, he told the Austin American-Statesman in 2014 — as for his sense of humor. “So this, here, is like a sexual act,” he once declared in a courtroom about jury selection, according to a blog post by prosecutor Mark Pryor. “We’re feeling each other out, getting to know secrets about one another.”
So it was likely not out of character for Espersen to walk over to Christine Wilford and, after she introduced herself, smile at the sight of her long braids. “Oh!” she recalls him saying. “Are you related to Milli Vanilli?” Before she had a chance to answer, he did a little dance.
“Girl, you know it’s true,” he sang, echoing the chorus by the famously lip-synching ’80s pop duo.
Christine Wilford, who had never heard of Milli Vanilli, was so taken aback that she no longer remembers the rest of their exchange, except for the fact that her husband’s court date was again pushed back. Espersen did not communicate with Marvin Wilford, who sat in a holding cell at the courthouse before being taken back to jail.
When Wilford returned to court a month later, his wife found Espersen again. She wanted to get the lawyer materials that could be helpful to the case, she told him: a list of witnesses who could corroborate Wilford’s account, his medical and military records, the statement from Jones. That night, after the case got another continuance, she texted the list of witnesses to Espersen’s phone, then headed to the Dollar Tree to buy an envelope. Carefully, she wrote the address of Espersen’s office on it, stuffed copies of Wilford’s documents inside and mailed it.
On June 22, Wilford had another court date. According to him and his wife, the couple had still not heard from Espersen, and to their knowledge, no one had contacted the witnesses or Jones. (In fact, Espersen soon informed Christine Wilford that he never received the documents). But that day, Espersen requested that the case be put on the trial docket — a potentially favorable move, in that it might force the prosecutor to look harder at the case and perhaps even dismiss it.
In the courtroom, standing with Espersen before Sage, Marvin Wilford felt confused — and weary. He eyed his lawyer. It was the first time they were seeing each other since that disconcerting night in jail, yet Espersen barely spoke to him. The judge asked for his response to the charges.
“Not guilty, Your Honor,” said Wilford.
As he left Galveston, turning his white SUV onto Interstate 45, Drew Willey fumed. In the weeks after Ewing first removed him from his cases, he’d been so upset that he’d filed a complaint with the Texas State Commission on Judicial Conduct, listing the canons of the Texas Code of Judicial Conduct that he thought Ewing was violating: “Most importantly, Canon 3, C. (4) by failing to exercise the power of appointment impartially and on the basis of merit.” Now, as he saw it, the judge had spelled out in his own words what Willey had suspected all along: There were poor defendants who were not getting a fair shake. Willey called his wife in Houston. “You’re not going to believe what this guy just said,” he told her, his voice shaking with anger.
He knew what some of his lawyer colleagues would say — that he was too idealistic. The state commission was notoriously opaque. And the Texas Indigent Defense Commission, which Willey also filed complaints with — over Galveston’s jail docket — couldn’t do much either. Technically, the TIDC could make recommendations, but judges were not compelled to follow those; the agency could also withhold state funding, but it had done that only once, in 2015, after it found that two attorneys in Hidalgo County received more than a third of all 1,900 juvenile indigent cases in one court. (Two years later, one of the attorneys was still receiving the second-most juvenile cases of any lawyer in the county.)
“It takes a lot of sacrifice, having that fight,” said Brandon Ball, a lawyer in the Harris County public defender’s office who has worked with Willey. “They beat you down. They beat you down. They beat you down.”
But the fight is what had attracted Willey in the first place. He’d grown up as a middle-class conservative in Arlington, the youngest of four, with a love of math. Gifted and competitive, he was president of the student body at his high school. After majoring in business at the University of Texas at Austin and pursuing a master’s in tax accounting, he’d enrolled in law school to become a tax attorney.
A summer internship at the University of Houston’s death penalty clinic changed that plan. Willey was assigned to the case of Marvin Wilson, a 54-year-old mentally disabled black man from Beaumont who had been sentenced to death in 1994 for the murder of a police informant. Wilson claimed he was innocent, but the clinic’s lawyers hoped to spare him death by focusing on his mental fitness. Willey was tasked with retyping the transcripts from Wilson’s trial, and as he worked through them, he grew troubled by what he felt were grave missteps by Wilson’s attorney. The state claimed, for example, that both the victim and the murderer were black. But a strand of Caucasian hair was found in the victim’s hand, a fact that had not been explored.
Willey had leaned generally in favor of the death penalty, but the consequences of shoddy defense work made him do an about-face. He took it upon himself to investigate Wilson’s case, even interviewing witnesses in Beaumont — an impulse that exasperated his bosses, who needed his focus on other matters. When Willey visited Wilson on death row, he was struck by Wilson’s positive outlook. “You’re not giving up,” Willey remembers thinking.
But by Aug. 7, 2012 — the day Wilson was to be executed — all of the appeals on his behalf had been denied. That evening, Willey drove to a Bible study he regularly attended. He’d become more connected to his Christian faith in college, and now he felt despondent. At sundown, as the study leader cracked open a Bible, all Willey could think about was how Wilson was strapped to a gurney, drawing his last breaths. He was staring at the floor, lost in thought, when the leader read the night’s passage, Proverbs 31:8-9. “Speak up for those who cannot speak for themselves,” it went. “Defend the rights of the poor and needy.”
The words hit Willey like a lightning bolt. His calling wasn’t tax law, he realized. It was to defend the poor. “My jaw was on the floor,” he said. “That message was my new guide in life.”
Willey signed up for a mentoring program through the public defender’s office and, after graduating from law school, worked a few months for a criminal defense attorney in Houston before getting on the appointments list in Galveston and Fort Bend counties. His ultimate hope was to work in Harris County, which he figured could use the help: Its lawyers were notoriously overburdened, and its judges had come under fire in the media for cronyism. In one famous example, the Houston Chronicle had reported in 2009 that attorney Jerome Godinich missed deadlines in death penalty cases and carried a high caseload. Six years later, Godinich still handled almost 500 felonies a year, including several capital murder cases. Most of his appointments came from Judge Jim Wallace; Godinich was one of Wallace’s top campaign contributors. (Godinich and Wallace did not respond to requests for comment.)
But Willey needed experience, so he focused on his work outside Houston. On his weekly drives, as he pulled away from his townhouse in the Montrose neighborhood, he thought often of Wilson, whose photo he kept in his home office. There had to be another way of doing this work, he mused.
In the fall of 2015 — as he was looking into the Wayne Lucas case — the answer came to him. A few defendants in Harris County had heard that he represented poor clients and called him from county jail; they wanted to know if he could take their cases because they weren’t hearing from their court-appointed lawyers. Willey turned them down. Without being appointed, he had to work pro bono, and he couldn’t afford to do so. Then, driving one afternoon, he had an idea: What if he could raise funds for the cost of defending cases?
On January 17, 2016 — just before Martin Luther King Day, a deliberate choice — Willey gathered friends and family at a restaurant and announced his plan: He was starting a nonprofit called Restoring Justice. To figure out an appropriate workload and how much money to raise, he would use the TIDC’s study on caseload limits. (For a first-degree-felony case, for instance, he figured he’d raise $5,000; this was far less than an attorney would charge a paying client but much more than most court-appointed lawyers receive.)
That spring, as his conflict with Ewing began to heat up, Willey threw himself into the nonprofit, filling out paperwork and enlisting board members. He also took on one of its first clients, a soft-spoken 27-year-old named Maurice Johnson, who was in jail for sexual assault of a minor. Johnson claimed that the victim, his girlfriend, had lied about her age, but he’d pleaded guilty after being told by the investigator that she and her father would testify against him.
Johnson’s court-appointed lawyer, Ruth Yvonne Burton, had not visited him in jail; they’d spoken only on days when he appeared in court. When Willey got the investigator’s notes, he realized that the investigator had never interviewed the victim or her father, that the victim had admitted to the police that she’d lied to Johnson about her age, and that the father had agreed to accept a lesser charge against Johnson — a fact that Johnson had not been told. At the sentencing hearing, the prosecutor asked for a sentence of 15 years. Willey persuaded the judge to give Johnson three.
Burton was paid for work on 361 felonies in fiscal 2016. When I reached her in a brief phone conversation, she defended her caseload, pointing out that several investigators worked in her office. “I don’t encourage anyone to plead,” she said. “I will tell them what the facts are.” When it came to Johnson, she said, not knowing the girl’s age was not a defense. “That doesn’t make you not guilty,” she said.
As Willey saw it, though, having all the facts still made a difference. “It matters in how you negotiate for someone, in how you set punishment,” he said. “It matters a lot.”
Willey had known that Burton had a high caseload, but it wasn’t until months later that he realized just how high. He was at his desk one day, poring over the TIDC website, when he discovered that the agency not only issued caseload guidelines — as he knew — but also collected detailed data for all lawyers doing indigent defense.
Clicking around the database, Willey was shocked. He’d figured only a handful of lawyers didn’t have time for their clients, but there were scores of them — and not just in Harris County. Court-appointed lawyers all over Texas had workloads two or three times the recommended limit. “It was kind of a hallelujah moment,” recalled Willey. “I suddenly had this objective checkpoint on adequacy of counsel.” Now, it dawned on him, he didn’t have to rely on referrals or calls from jail. Thanks to the database, he could figure out who most needed help — and go after those clients himself.
He was still mulling this over when, in October 2017, the State Commission on Judicial Conduct voted to dismiss his complaint about Ewing. “In its discretion, the Commission determined that the judge’s conduct in this particular instance, while not necessarily appropriate, did not rise to the level of sanctionable misconduct,” ruled the agency. “The Commission remains confident that the conduct will not occur in the future.”
Willey shook off his disappointment. He would just move on, he decided, and double down on his nonprofit. So when, that same month, he received a phone call from Charlie Gerstein of Civil Rights Corps, Ewing was far from Willey’s mind.
Gerstein was calling for advice on a client, and as the two chatted, the conversation turned to indigent defense. Most lawsuits on behalf of the poor, said Gerstein, went after high caseloads and inadequate resources, but lately he’d been thinking about judges. If a lawyer faced resistance from a judge, then it didn’t matter if he had all the resources in the world. What if, Gerstein asked, there were a way to address judges’ retaliation against lawyers who tried to adequately defend their low-income clients?
“Wait a second,” Willey replied. “That happened to me!”
His and Gerstein’s minds began to race. Willey had been trying to bypass the system through his nonprofit, but maybe, it occurred to him, there was something bigger he could try.
Five months later, with Gerstein as his lawyer, Willey filed a lawsuit against Ewing.
On June 24, 2018, Marvin Wilford sat on his bunk in the Travis County jail and pulled out a notebook. Every other week, Christine Wilford sent him money for the commissary, and he’d been intentional with his purchases: $2.50 for the notebook, 50 cents for a pen, 42 cents for a stamp and envelope. He began to write a letter to Sage, the judge in his case. 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,” Wilford 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 thinks — and left message after message. Finally, in early July, she heard from director Ira Davis, who told her to attend her husband’s next court date, on July 13. More waiting, she thought. 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, the New York hire, was particularly frustrated. For all the promise of the managed assigned counsel model, she 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.
When CAPDS proposed a client’s bill of rights, declaring, among other things, a defendant’s right to see his lawyer, the Austin Bar Association refused to sign off on it. “Some lawyers were afraid that clients would use it to try and file grievances against them,” explained lawyer Betty Blackwell, who sits on the board for CAPDS.
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, however, was that despite the county’s effort to wrest power from the judges, the judges were, in her view, still ultimately in control. The review committee actively solicited judges for input on lawyers. (Amber Vazquez, for example, who was booted off the wheel before CAPDS was created, still could not get high-level felony appointments in the new system; her application was denied due to unspecified “judicial complaints.”) 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, told me 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” and “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, who told KXAN, “I did not so much as receive one visit from Mr. Espersen while incarcerated at Travis County Correctional Complex in Del Valle.”
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 for this story.) 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. (A public information request for records related to the investigation was denied by the DA’s office. The office later confirmed that the case has been closed.)
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 — Wilford listened attentively as the judge approved Espersen’s motion. Wilford sighed with relief. “Finally,” he thought.
“I’m a taller white dude with black cowboy boots,” said Willey. It was November 2018, and he was describing himself on the phone to Hattie Shannon, one of the most overloaded court-appointed lawyers in Harris County; the previous year, she’d been paid for work on more than 430 felonies. Willey was hoping to meet her at the courthouse.
In the eight months since filing his lawsuit, Willey had been busy: He and his wife had welcomed their first baby, a boy, and he was raising funds in earnest for Restoring Justice. He’d moved his office to a tiny room on the first floor of a house in the Heights neighborhood and was taking on more clients — by the end of the year, he’d have 19 active cases. It wasn’t a huge number, but as he liked to point out, the nonprofit had saved defendants a combined 49 years of incarceration.
He now mined the TIDC database regularly, cross-referencing the data with active cases listed on the website of the Harris County District Clerk. This is how he’d found his newest target: a 30-year-old woman arrested for PCP possession who had been sitting in jail for six months. Her lawyer was Shannon.
The woman’s bond had been set at $10,000, which struck Willey as exorbitant, since it was a nonviolent charge. Shannon had filed a few motions, but none were to lower the bond, so Willey visited the woman in jail and proposed taking her case. When Shannon did not object, the woman was thrilled. (Shannon did not respond to requests for comment.)
On the phone, Willey arranged to meet Shannon the next day in the courtroom of Judge George Powell to finalize the handover. Immediately afterward, he called the woman’s mother, who confirmed that the family could afford to pay a reduced bond. She had called Shannon several times, the mother said, but had reached her only on the night before her daughter’s court date. (Jail records show Shannon visited the woman once.) Her daughter, she continued, had made some bad choices, but she’d grown up in church and wanted to be a paralegal. Now Thanksgiving was around the corner. “I want her home for the holidays,” replied Willey.
He hung up and smiled. His lawsuit against Ewing had made national headlines, including in TheNew York Times, and he’d been receiving messages and donations to his nonprofit from all over the country. Lawyers around Texas had written to share their own run-ins with judges. A teacher in Florida had mailed him some framed quotes from the Gideon v. Wainwright case. They sat in his office now, near the photo of Marvin Wilson. “Every case I take over, I see the person has potential,” said Willey.
On its face, the lawsuit was a long shot. Judges, like prosecutors, enjoy broad immunity for their actions, on the principle that they should be free to make judgments without undue fear of retribution. In Texas, after two lawyers filed suits against judges — one in Travis County in 2006, another in Tarrant County in 2007 — for removing them from cases and appointment lists, both cases were dismissed. In Ohio, when a public defender sued a judge in 2012 for removing him from dozens of felony cases, the 6th U.S. Circuit Court of Appeals sided with the judge.
But the lawyers in those cases sued on the basis of lost income. Willey’s case was deliberately different. He was suing not for damages but for the right to advocate for his clients. Willey’s lawsuit argued that government contractors — which court-appointed attorneys are — have the right not to be fired from their jobs for speaking up. In addition, Willey was asking for declaratory relief, a statement from the courts acknowledging that if Ewing retaliated against Willey again, he would be in violation of the law. The novelty of the approach gave the case a chance of success — and offered a possible precedent for how to force change in Texas.
The next morning, a chilly 35 degrees, Willey got in his SUV and headed to the courthouse. In a small, trapezoid-shaped room that was serving as a makeshift courtroom for Powell after Hurricane Harvey, Willey waited for Shannon. When she didn’t show, he approached the judge on his own to make his case for lowering the woman’s bond: Her parents wanted her back, and she’d served six months. The prosecutor, a young-looking man in a checkered blazer, objected, reading out the woman’s previous criminal charges — controlled substance possession, a couple of DWIs, possession of marijuana.
Willey pressed again, irritating the judge, who raised his voice. “At this point, you’re not even attached to the case,” said Powell. “Let’s handle that first and then get back together on it, all right?”
Outside, Willey rolled his eyes. “That’s the culture,” he fumed. “He basically said to get the hell out of his face.” He debated going back, then thought better of it. He didn’t want to make the judge angrier. He’d wait.
His bet paid off. A week later, Powell agreed to a personal bond. Willey was elated — his client would be home for Thanksgiving.
When I called Powell to ask about the case, he explained he’d grown testy in the courtroom because it wasn’t clear to him that Willey had filed the paperwork to take over. “The fact that he was discussing the case with me was an ethical issue,” he explained, “so I just shut things down.”
Powell said he hadn’t given much thought to why the woman had sat in jail on a $10,000 bond for several months with one lawyer and gotten out on a personal bond after a few days with another. “Ms. Shannon is a good attorney, and she works very hard,” said Powell. But he hadn’t known her caseload — or that 99 of the 430 felonies she’d been paid for the previous year were in his court. “I wasn’t aware,” he told me after I recited the numbers. “That’s interesting. Tell me the numbers again, please?”
“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 told me.
A month later, I went to visit Wilford at home in East Austin. For Christmas, Christine Wilford had bought him a ring to wear next to his wedding band, a symbol of all they’d been through together. Marvin Wilford 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,” he said, “before y’all stop trying to destroy his life?”
When I met with Sage soon afterward and asked about 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 a whopping 20 charges. Handling 20 cases for one person, Sage stressed, is very different from handling the cases of 20 people.
It’s true that caseload numbers come with caveats. Casey, for example, is overloaded, yet he still managed to give Wilford the necessary attention. (It should be said that Casey’s caseload is not nearly as high as Espersen’s.) But 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.
I pointed out to Sage that the caseload for a lawyer like Espersen reflects 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 excessive caseloads — and that the only solution was to expand the county’s public defender’s office after all. But resistance from defense lawyers 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,” said Ellis, who is now a commissioner for Harris County, “because they pick people who are capable. How do you say that with a straight face?”
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 to me. When I mentioned 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.”
When I last saw Willey, in June, his 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 showed me 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,” texted the supporter. “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.
A lawyer responds: Bill Ray explains his workload in Tarrant County
Despite efforts to reach a number of the state’s most overloaded lawyers, few agreed to speak for this story. One lawyer who did, however, was Bill Ray, who in fiscal 2018 was paid for work on more than 200 felonies, 80 misdemeanors and five capital murder cases in and around Tarrant County, home to Fort Worth.
Ray, like many lawyers and judges in Texas, insisted that caseload numbers can be misleading. A few of his five capital murder cases have been going on for several years, he explained, and the work he gets paid for on these in a given year isn’t always intensive. (For instance, he might file one motion for a new DNA test.) Not all of the felony cases are work intensive either — many, in fact, are probation revocations, in which he represents people accused of violating the terms of their probation. “I usually have one appearance for those,” he said. “I have a half-hour visit to the jail. That’s it.”
Still, said Ray, “I probably have more cases than many other lawyers could handle.” There is no caseload limit in Tarrant County. “I don’t ask for these appointments,” he continued. “I tell the judges I’ll do them. I didn’t ask for the capital murder case I got last night. I’m gonna do it.”
Tarrant County has no public defender’s office whose outcomes might provide a baseline for measuring the work of a court-appointed attorney. But in 2009, one probation revocation case involving Ray did raise some eyebrows. A woman named Sandra Wilson alleged that, as her lawyer, Ray had ignored clear indications that she had severe mental illness and had tried to kill herself. Her 15-year prison sentence could have been lowered, she claimed, if Ray had brought up her mental illness.
A federal judge agreed, writing that she might not have gone to prison at all if Ray had brought up her limitations. The lawyer’s “conduct fell below an objective standard of reasonableness, and was outside even the widest range of reasonable professional assistance,” wrote the judge. Ray declined to comment on this case, noting that the judge’s opinion should have been sealed. (It is easy to find online.) Tarrant County judges have continued giving him appointments.
When Ray and I spoke in December 2018, he told me that he did not have any paying clients; the bulk of his workload was reflected in the TIDC database. But he did have side gigs. In fact, as we were talking on the phone, he was on his way to see a witness in a case in which the district attorney had recused himself. The judge had appointed Ray — not to defend but to prosecute.
Want a public defender? Take it up with the judge
In many Texas counties, interest in creating more public defender’s offices is growing. To be effective, however, these public defenders will need both resources and strict caseload limits — as in Harris County, where lawyers recently decided to take on no more than 128 felonies a year, down from the current limit of 150. In Dallas County, by contrast, public defenders can be just as overloaded — often more so — than their court-appointed counterparts. (In fiscal 2018, more than two dozen public defenders in Dallas each took on more than 300 felony cases.)
Crucially, public defense models will also require buy-in from judges, which has not always been easy to come by. In Harris County, for instance, juvenile public defenders received fewer and fewer appointments over several years, so that in 2017 they each had an average load of 140 juvenile cases, which is below the office’s imposed limit of 200, while a handful of private attorneys — some of whom happened to be generous contributors to judges’ campaign coffers — got more than 300. In interviews, two of the county’s juvenile judges insisted that they knew nothing of these numbers and that their court coordinators were in charge of appointments. But since last fall, when these judges lost their reelection bids, juvenile public defenders have been reporting an increase in their caseloads.
In the Texas Panhandle, where there’s long been a dearth of qualified lawyers, a clinic at Texas Tech University Law School began representing clients from across the region in 2012 who had been charged with misdemeanors. For the first two years, it did so at no charge to counties that participated; after that, counties had to generally pay only $100 per case. The clinic’s law students took four misdemeanor cases to trial, winning two outright — both of them DWI cases — and a third, on theft charges, on appeal. In the fourth case, the client was convicted of marijuana possession but was sentenced to time he’d already served — a few days — and charged a small fine. He’d been facing a sentence of six months.
The clinic seemed like a success, but it stopped receiving appointments from Knox County in 2013 after students won one of the DWI trials. The clinic also no longer gets appointments in Garza County, where the theft case was won on appeal.
The judge who presides over misdemeanors in Garza County, Lee Norman, said he stopped using the clinic because of “scheduling issues.” (Patrick Metze, a law professor at Texas Tech, said that the clinic is staffed year-round.) Stan Wojcik, the judge who presides over misdemeanor cases in Knox County, said the decision to stop using Texas Tech was made before he was elected, but he’s upheld it in part due to distance: The clinic, in Lubbock, is more than 100 miles away. “We do like to use our local attorneys,” he said. “It is easier on clients to have someone local at their disposal. It’s better for them, actually.”
Both judges insisted that anyone who needs a lawyer in their counties gets one. Still, Wojcik acknowledged that more lawyers are needed in the Panhandle. “We do have a limited number of attorneys to pick from,” he said. “Someday, we might need to rethink our use of Texas Tech.”
The executive director of the clinic, Donnie Yandell, hopes that this will be the case. “Commissioners are always concerned about how money is being spent, and the taxpayer is always concerned about how money is being spent. We’re charging 100 bucks, and we can’t get appointments. As a taxpayer, I’d be livid.”
Correction: An earlier version of this story stated that Travis County judges resisted expansion of the county public defender’s office. In fact, the judges supported a blended system that would retain the managed assigned counsel system and expand the public defender’s office. An earlier version of this story also stated that a criminal investigation of Espersen by the Travis County DA's office was still pending. In fact, the investigation has been closed. The DA's office has reported that the case was marked as pending due to clerical error.
Neena Satija is a former reporter for The Texas Tribune and currently a reporter for The Washington Post. This reporting was supported by the International Women’s Media Foundation’s Howard G. Buffett Fund for Women Journalists.
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. Find a complete list of them here.