By Brian Chasnoff
October 2010
A day after Diego Morin was arrested in Del Rio and charged with killing his baby stepdaughter, the 22-year-old construction worker requested a court-appointed attorney because he could not afford to hire one.
Morin then sat in Val Verde County Jail more than eight months before a judge appointed him a lawyer.
His wait violated the state’s Fair Defense Act, a law passed nearly a decade ago when Gov. Rick Perry vowed to correct widespread inequities in how poor criminal defendants are represented in Texas.
The law requires a fair and neutral process of selecting attorneys, and the appointment of a lawyer no more than three days after a request.
The delay in Morin’s case is not an anomaly.
An investigation by the San Antonio Express-News has revealed persistent breakdowns in the state law, including:
Bexar County courts’ failure to appoint attorneys in a fair and neutral manner, adequately fund investigations into poor defendants’ cases and promptly assign counsel to some juvenile offenders.
Val Verde County officials’ withdrawal of support for the state’s first regional public defender office, forcing the program’s acrimonious demise around the time of Morin’s arrest.
Recurring concerns of public defenders across the state, including complaints of interference by county officials.
The state has made some progress in the past decade, creating a Task Force on Indigent Defense to guide and monitor counties in the law and dole out grants for programs such as public defender offices.
Yet looming budget cuts threaten even these gains.
Ranking near last
Ten years ago, Texas was one of just four states that provided no funding to counties for indigent defense.
At the time, only seven of its 254 counties had public defender programs, which are designed to work independently of the judiciary to ensure poor defendants are quickly identified and represented, often saving counties money in the process.
The state provided no oversight of indigent defense.
“Ten years ago, we didn’t have a system,” said Jim Allison, general counsel for the County Judges and Commissioners Association of Texas. “Every judge of every court was individually responsible for ensuring defendants received adequate counsel. And of course this had some inadequate results.”
The Fair Defense Act emerged that year after a nonprofit found serious inequity in the state’s system.
“This bill sends the message that regardless of your financial situation, the Texas criminal justice system will treat everyone fairly,” Perry said at the time.
The state channeled about $7 million in court fees to the newly formed task force, an amount that since has risen to about $30 million a year.
Now, 15 public defender programs serve 87 counties, including one in Lubbock County that assists 70 West Texas counties in capital cases in which the death penalty is sought.
“It’s come extremely far,” said Ana Yañez-Correa, executive director of the Texas Criminal Justice Coalition and a member of the task force’s grant-review team.
But Correa bristles at the state’s massive budget shortfall and looming cuts. Lawmakers have asked the task force to prepare for reductions totaling 15 percent – or about $10 million.
“It’s going to be a devastating blow to the tremendous progress that Texas has made on providing people their constitutional rights to counsel,” Correa said.
Allison said regions such as Val Verde County are the most vulnerable.
“Your poorest counties, in terms of a property tax base, are often the counties with the highest number of indigent defendants,” he said. “And that’s the irony: They have the need, but they don’t have the funding base.”
Others say the requested cuts merely add insult to injury in a state that now ranks 48th in the nation in per capita funding for indigent defense. Texas funds about 15 percent of such costs, leaving the rest to counties.
Jeff Blackburn, an Amarillo attorney and chairman of the State Bar Committee on Indigent Defense, called the state’s progress in the past decade meager.
“They take a shriveled up lemon,” Blackburn said, “and then call it the greatest lemonade that’s ever been created.”
Official interference
By many accounts, the end in Val Verde County began when its district attorney closed his files to the public defenders.
Until then, the state’s first regional public defender office was finding success.
The task force had agreed to fund 80 percent of its costs in the first year and then gradually reduce funding over four years.
The county hired a nonprofit, Texas RioGrande Legal Aid, to run the Del Rio office, which opened in 2006 and operated across three other counties: Kinney, Terrell and Edwards. The need in the poor, rural region is great: More than 90 percent of criminal defendants required court-appointed counsel last year.
David Hall, executive director of TRLA, said he signed the contract with “some trepidation.”
“My biggest concern was whether we would have adequate independence, to be able to represent clients without a lot of interference,” he said. “The other issue I was concerned about was whether the counties would be willing to continue the project beyond the grant period.”
Hall is not alone: An internal survey of public defenders completed last month by a state bar committee revealed that “interference by commissioners courts” and “interference by the judiciary” are the top two and three concerns, respectively, of public defenders across the state, just under “lack of resources.”
In Del Rio, TRLA started screening inmates at the local jail and identifying those who couldn’t afford attorneys. Dismissal rates steadily rose, mirrored by significant drops in the jail population, according to task force data.
Hall said the efforts saved the county more than $1 million a year in jail costs.
“It was a positive program,” said D’Wayne Jernigan, sheriff of Val Verde County until 2009. “We spent less money on keeping our prisoners in the jail.”
The nonprofit took about 10 percent of its cases to trial, and at least half resulted in acquittals, according to TRLA staff.
Defender office closes
The program was derailed in January 2009 when Fred Hernandez, the county’s district attorney, shut his files on criminal defendants to the public defenders.
Melissa Hagen, a native of Ohio who joined the office in 2008 as its chief public defender, was dismayed at Hernandez’s policy.
“I sort of laughed and said, ‘You’re kidding, right?’” Hagen said. “And he said, ‘No, I’m not.’”
Hernandez left the same files open to other lawyers in the region, private attorney David Ortiz confirmed.
The National Right to Counsel Committee recommends prosecutors adopt open-file discovery policies. Yet the state yields control of indigent defense practices to counties, leaving discovery policies up to prosecutors.
Elected judges in Texas also possess the sole power to appoint attorneys and approve their payments, influence that some say can confound the American Bar Association’s first principle of indigent defense – independence.
Wesley Shackelford, special counsel to the task force, conceded that the state’s system of local control can stymie national standards.
Texas’ “statutory scheme doesn’t really allow for the level of independence that I think is envisioned by the American Bar Association standards,” he said.
Unable to access clients’ files, TRLA attorneys watched their cases begin to clog the courts’ dockets as local judges appointed fewer cases to them.
County commissioners eventually disregarded about $68,000 in state funds that would have helped to keep the program running, said Bryan Wilson, grants administrator for the task force.
No county officials – the county judge, district attorney, assistant county attorney or county commissioners – would talk about ending the program to a reporter who traveled to Del Rio.
But task force data chronicle its demise: Judges appointed 60 percent of felonies and 73 percent of misdemeanors to public defenders in 2007. In 2009, the numbers dropped to 37 percent of felonies and 40 percent of misdemeanors.
District Judge Enrique Fernandez refused to comment for this report. His counterpart, District Judge Carl Pendergrass, would not discuss the drop in appointments except to say that commissioners had decided to end the program.
“With their contract being in question,” Pendergrass said, “it wouldn’t make good sense to have (public defenders) represent someone for a couple of months and have to appoint someone else.”
Despite a bitter fight waged by local advocates, the county’s contract with TRLA lapsed in September 2009. The nonprofit remains in the region to complete its residual cases, but Hagen’s last day was Oct. 1.
She’s moving to Nevada.
“In a way, I regret the day I ever said I would take this job, considering what I’ve had to endure,” Hagen said. “I don’t know if I want to do indigent defense again.”
Wilson, the grants administrator, said the task force plans to complete a full review of the failed program, the only state-supported public defender office to close.
“There was a lot of good that went on there, but there were some things that went terribly wrong,” he said. “It sounded like the judges had pulled support, and you know, in Texas, there’s only one party that has appointing authority.”
Morin’s case
Its role diminished, TRLA stopped screening inmates at the jail around the time police arrested Morin on May 27, 2009, and charged him with capital murder in the death of his 9-month-old stepdaughter, Yesenia Garcia.
Morin told police the child, who suffered severe head trauma, had struck a concrete bedroom floor after he accidentally dropped her, according to a Bexar County medical examiner’s investigation report.
Magistration paperwork signed by a justice of the peace shows he requested an attorney May 28, 2009.
At his Del Rio home last month, Jose Morin said his son grew anxious as he waited for a lawyer.
“He wanted somebody to talk to him about what happened,” he said.
Attorney Dan Monahan screened inmates for TRLA until last year.
“Without someone monitoring the jail population,” Monahan said, “people just sit in there for months and months if the DA doesn’t actively indict.”
A grand jury indicted Morin in December 2009, and Pendergrass finally appointed him an attorney on Feb. 5 – more than eight months after Morin’s request.
Advocates say prompt appointment of counsel ensures lawyers’ investigations occur when evidence still is fresh and witnesses are easier to locate.
“The longer you’ve been in jail, the more you’re willing just to plead guilty,” said Mary Kay Sicola, director of TRLA’s public defender division. “It wears (defendants) down.”
Melissa Orejel, a Val Verde County district clerk, said her office received Morin’s magistration paperwork July 27, 2009, but never sent it to a judge.
“We usually don’t send them to a judge unless there’s a letter for the judge,” she said. “The magistration paperwork, he doesn’t really need to see this.”
Blackburn takes a dark view of Val Verde County’s regression.
TRLA “did their job,” he said. “That’s really the underlying problem here. Nobody really wants there to be an effective defense system because if there is, (judges) won’t be able to get elected again by shooting fish in a barrel.”
Blackburn placed little faith in the task force, which can withhold grants to counties that break the law but is authorized to do little else.
“It’s toothless,” the lawyer said. “The big problem is the state and all the counties inside of it are running out of money.”
Sicola also is not optimistic.
“The people who are suffering here from this type of system are indigent, criminal defendants,” she said. “And these aren’t the sorts of people who warm the cockles of our hearts.”
