I-Team: Indigent defense costs County unprecedented $2 million more; Commissioner questions quality of defense, appointment system

The County of El Paso in fiscal year 2013 is expected to pay $2 million more for indigent defense than the year prior and the unprecedented increase has one County Commissioner questioning the indigent defense system and the quality of defense offered to those who can’t afford a lawyer.

When a person is arrested and cannot afford an attorney, a Judge appoints a lawyer to represent the defendant and the County pays for it.

According to documents obtained by the ABC-7 I-team through the open records request, in fiscal year 2012, the County paid a total of $4.2 million to private attorneys for indigent defense. That was a slight increase from 2011, when the County paid $4.1 million. For the latest fiscal year, 2013, the County saw an unexpected hike in indigent defense pay for private attorneys. Still tallying recently submitted vouchers from attorneys, the County is expected to pay about $6.2 million for indigent defense, a $2 million increase.

The database obtained by ABC-7 shows the County paid $4.9 million in fiscal year 2013 as of September. However the County has since received more attorney vouchers, bringing up the cost to $6.2 million, said County Commissioner Vince Perez. “Why that is? We still have yet to get a definitive answer,” said Perez who is currently investigating the sudden hike.

Judge Yahara Lisa Gutierrez, of the 65th District Court told ABC-7 she attributes the increase to a growing population in El Paso and at Fort Bliss. “Every week, we hear of a soldier who got arrested. With Fort Bliss, came a lot more criminal problems because they’re young. Our family violence numbers have increased, our child abuse cases have increased. We’re getting to be a big city. I think that’s where all of this stems from not from any kind of dealings that are going on behind the scenes.”

Perez is not convinced by Judge Gutierrez’s explanation. He said he has not seen the population data that justifies a $2 million increase. Aside from the cost, Perez is more concerned with the quality of defense for people who cannot afford an attorney. He points to the fact that a small percentage of attorneys is getting a big chunk of the $6.2 million.

“The fact that the lions share of the funding is going to such a small pool of attorneys I think is reflective of the fact that there needs to be a just, equitable and random system of appointing. The top 30 attorneys are earning half of that 6 million dollars so clearly there’s an uneven distribution,” Perez said.

Judges appoint the attorneys. Criminal defense attorney Joe Spencer, who is appointed to some but not a lot of indigent cases, said judges know which attorneys can defend a person better than others. “Those judges who see the lawyers in that courtroom everyday, all day long, day in and day out are in a better position than anybody else to see who gets what case.” Judge Gutierrez echoed Spencer’s arguments. “We pick the good ones,” she said.

The explanation is not enough for Perez. “I don’t think it’s fair just to say ‘well these are the best attorneys.’ It creates an opportunity where attorneys can be appointed based on favoritism.”

“I don’t see any favoritism in the Judiciary. It just doesn’t happen that I’ve seen,” said Spencer.

Judges are supposed to choose attorneys based on a wheel system. But Perez believes there are no checks and balances to ensure it’s fair, even when it comes paying the attorneys. The court-appointed attorneys turn in vouchers to the judges spelling out how many hours they worked on a case. For most cases, the county rate is $75 an hour for time in court and $60 an hour for out of court time spent on a case. “You may have one judge in one court who is very good at scrutinizing the vouchers and who will say ‘hey you didn’t really work this, I’m not going to compensate you for this’. Whereas other judges may be more lenient. There’s no checks on the way it is that vouchers are processed.”

Judge Gutierrez said the judges already have an adequate system of checks and balances. “I know that we all cut vouchers. We know who pads them and we know who doesn’t. I’ll look and see if the time they say they spent in court coincided with what I had on my calendar. And I just use my best judgement,” she said. She said she also gauges how many times the attorneys met with their client and if it was necessary.

“I don’t think a judge has ever cut my voucher once in all the time I’ve been practicing. I will tell you, I never put the amount of time that I put into it. There are too many hours that I spend on a case that I don’t keep track of simply because it’s part of my obligation,” said Spencer.

Apart from keeping a watchful eye, Judge Gutierrez said a voucher above $3,500 must be approved by a second judge. That duty is usually reserved for Administrative Judge Patrick Garcia.

“To the judges point of view, that’s a system of checks and balances. For my point of view, it’s ‘how is it possible that a second judge who wasn’t involved in that case could possibly know how many hours an attorney worked?,” Perez said.

Private attorneys aren’t the only ones who represent people who can’t afford a lawyer. The county has a public defenders office with 34 attorneys, all tasked with that too. Half of the indigent defense cases are supposed to go to that office. Every single one of the lawyers in the public defenders office handles an average of 334 cases every single year, said Bill Cox, one of El Paso County’s public defenders.

“Right now the public defender is short staffed. They always have been. So if it’s a case that’s very involved and it’s going to take a lot of time away from…then I might appoint a private lawyer. Sometimes. It just depends,” said Judge Gutierrez.

Perez wants a better system to determine the Public Defenders office is getting the adequate percentage of cases. “You don’t want to create a situation in which the public defender’s office is only defending those cases that have a speedy result or end quickly and the cases that are more complex, where there’s more compensation involved are reserved for private attorneys at the judge’s discretion,” he said. Though Judge Gutierrez said she utilizes the public defender’s office every time she can.

According to data on the Texas Indigent Defense Commission’s website, 55% of felony charges in El Paso County in 2012, were defended with appointed counsel. That’s five percent more cases than private attorneys are supposed to be getting. For the same year, 56% of misdemeanors were also defended by private attorneys. 2012 is the last year for which data is available. El Paso felony cases appointed to private attorneys have been on the decline, according to the TIDC. For example, in 2011, 67% of felonies in El Paso County were defended by private attorneys. And from 2008 to 2010, the ratio ranged from 94% to 104%.

Though attorneys from the Public Defender’s office handle hundreds of cases every year, it’s unclear how many cases private attorneys are juggling when they’re appointed an indigent defendant. That’s another reason why Perez wants a more random attorney selection process. “The vast majority have their own practice on the side and we have no indication of how many cases they’re handling in addition to their appointed cases. If they’re handling 500 cases a year, what kind of defense is that providing for the poor,” asked Perez.

Attorneys are not forced to defend the indigent. Though they’re required by the El Paso Bar Association to sign up, they can pay a $600 fee to opt out of the indigent defense program. Those fees are then paid to the County to help pay for indigent defense. Last year, according a Courthouse official, the Bar paid for $160,000 for indigent defense, a sliver of the $6.2 million.

View court-appointed attorney pay from 2011-’13 by clicking http://bit.ly/1eAu77N