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Expense of Defense: Costly indigent defense program burdened by inefficiencies
EDINBURG -- Some of Hidalgo County’s highest-paid professionals this year weren’t on the official government payroll.
They made more than top law enforcement officials like the district attorney and the sheriff.
And they did it by attempting to undo their work.
The county has paid attorneys Rogelio Garza and Sergio J. Valdez each more than $200,000 so far this year for fighting to clear the names of accused murderers, kidnappers and thieves.
And they are only two of the 200 private lawyers who make their living defending criminal suspects who can’t afford legal representation on their own. (See "Indigent Defense Database")
This year, Hidalgo County is on track to spend $8.6 million on indigent defense — more than that allotted for parks, sanitation or public health clinics. Next year, that expense is predicted to rise 15 percent, to almost five times the $2.1 million local taxpayers spent just a decade ago.
It’s a cost both state law and the U.S. Constitution obligate governments to pay — but one that is becoming harder to afford. With a nationwide recession restricting government cash flows, there is no clear answer on how the county will continue to meet this burden.
“Every new revenue we can find, we’re putting into indigent defense,” said Raul Silguero, the county’s chief budget officer.
Some say the rising cost is the price of justice in a region with one of the poorest, yet fastest-growing populations in the nation.
Others insist the county’s model of offering low-income legal services is inefficient, open to abuse and largely unmanageable.
Today, The Monitor begins a three-day series looking at Hidalgo County’s indigent defense program, a review that found both groups to be right. Poor defendants make up the vast majority of those who go before the county’s courts, but the system designed to handle them here:
>> Costs more per capita than that of any other urban county in Texas.
>> Allows defendants and their attorneys opportunities to exploit it with impunity.
>> Is administered by more than 20 county offices — each with control over a small piece of the system and a poor understanding of the entire picture.
However, as difficult as the program is to manage, it may just be the best option available to ensure a justice system open to everyone regardless of their economic status, said James Bethke, head of the state task force that oversees low-income legal services.
“Providing indigent defense is going to cost money, and it’s a cost that no one wants to pay,” he said. “The key is doing that as effectively and as efficiently as possible.”
‘HUNTING FOR FOOD’
“Efficient” is a word attorney Juan Alvarez would hardly use to describe arraignment days in any one of Hidalgo County’s five misdemeanor courts.
Defendants — some in orange jail jumpsuits, others in street clothes — pack into the courtroom gallery’s uncomfortable pews while waiting for their name to be called. Well over half show up to be formally charged without a lawyer.
Luckily for them, they are often outnumbered by the suit-clad masses clamoring to take on their cases. These lawyers fill the jury boxes, the aisles and any other available open space.
This is where Alvarez and his law partner Melissa Canales make their living. In the past five years, their firm has earned nearly a half a million dollars from court appointments, according to county records.
“These courts are clogged,” he said. “There are tons and tons of cases, and we’re actively hunting for food.”
Each day, they and dozens of other attorneys fan out across the courthouse hoping to fill their briefcases with new files. Some arrive as early as 5 a.m. to get first crack at the list from which judges dole out the defendants in need of lawyers.
Catch these lawyers in the hallways outside and they will jokingly concede the somewhat predatory nature of their work.
But truth be told, their services are essential to keep the local justice system running.
More than 70 percent of Hidalgo County’s criminal defendants were represented by court-appointed attorneys last year, according to the Texas Task Force on Indigent Defense. Local judges estimate that number is closer to 90 percent.
“That’s just where we happen to be from,” said County Court-at-Law Judge Fred Garza, whose court assigned private attorneys to 1,400 cases in 2008. “We’re in the Rio Grande Valley. We’re on the border. That’s where we are, and that’s the way it is.”
NO INCOME CHECKS
But with the county spending more than ever on private attorneys, it is increasingly difficult to say what taxpayers are getting for their money.
The system has its advantages in that it provides the poor with access to highly experienced attorneys they would never be able to hire on their own.
But from an accounting perspective, it’s a nightmare. The process is riddled with inefficiencies, duplicated expenses and the potential for abuse starting the moment a judge first determines whether a defendant qualifies as indigent.
In many cases, this occurs the first time he shows up for court. If he hasn’t hired a lawyer already, he need only answer three simple questions before the county assigns him one: Do you have an attorney? Can you afford to hire an attorney? Do you want the court to appoint you an attorney?
As it plays out in courtrooms across the county every day, the process takes less than a minute and relies entirely on the trustworthiness of the person answering the questions. Some courts skip it entirely, merely asking defendants to line up on one side of the room if they want court-appointed counsel.
Hector Villarreal, a defense attorney and former judge, has watched this process from both sides of the bench for more than three decades and concedes it’s likely some defendants lie to get legal representation on the cheap.
“The criminals have been educated, also,” he said. “They’re thinking, ‘Why pay a quarter of a million (dollars) to a private attorney when the county will provide one for free?’”
LITTLE OVERSIGHT
The lawyers, too, have several opportunities to exploit the system.
And because their work is tracked by different judges and catalogued on reams and reams of paper, it’s nearly impossible to effectively monitor who is being honest.
Each judge monitors an attorney’s work in his or her own court but has very little knowledge of what might be going on in other courtrooms.
Because most attorneys work in several of the county’s 16 felony and misdemeanor courts, no one oversees the entire workload they take on each year or the total they charge for their services.
American Bar Association standards for public defenders suggest that a single attorney can handle no more than 150 felony or 400 misdemeanor cases a year before the quality of the defense each client receives begins to suffer.
But a Monitor review of the caseloads shouldered by several of the county’s most frequently appointed lawyers shows many were dangerously close to, or exceeded, those guidelines.
Robert M. Capello Jr., the attorney who took on more indigent defendants than any other lawyer last year, billed for more than 200 felony cases and 200 misdemeanors in 2008, not counting the juvenile and civil-appointment work he may also have handled that year, according to checks issued to him from the county. Those numbers also do not reflect any work he may have had from paying clients who retained him on their own. (See "For court-appointed attorneys, work keeps coming")
Capello, like many of the highest-paid, court-appointed lawyers, did not return multiple requests to be interviewed for this story.
FORCED TO LIE
Once a case is resolved, attorneys tally the time they spent in and out of court and submit a bill to the judge. But this step of the process is also fraught with complications.
Lawyers are supposed to charge for their time at a set hourly rate. But an informal audit by the county’s indigent defense office found that out of 20 vouchers submitted by lawyers this year, three attorneys claimed they had spent 10 to 15 hours in court in a single day — well more than the standard eight during which the county courthouse is open.
Several attorneys conceded that while their invoices may look suspicious, they have earned every dime and have been forced to jump through accounting hoops to be paid.
Judge Noé Gonzalez, who helms the 370th state District Court, said he and his fellow judges have the discretion to award more than the standard hourly rate to compensate lawyers at a price they believe to be fair.
Those sums may be well-earned, Gonzalez said, but the county auditor’s office will not pay the invoice if the total billed does not match the number of hours claimed for the work.
This forces attorneys to inaccurately report the number of hours spent on each case to match the arbitrary amount the judge decides to give them.
“It takes the heat off the judges,” Gonzalez said. “But once you audit those, you’ll find some lawyers who are literally billing 10 to 12 hours a day on paper. Are they defrauding the county? No.”
Complicating matters further, attorneys defending a single client on multiple charges routinely bill as if each count were its own separate case.
Lawyer Oscar Rene Flores took on an indigent defendant earlier this year facing seven counts of aggravated robbery. The four hours he put into preparing a challenge for one of those counts easily translated to the other six, he said.
In the end, Flores turned in a voucher for only $700 — equaling the total number of hours spent on all the cases. But he had to convince the judge he wasn’t cheating himself by failing to multiply his bill by seven — one time for each of his client’s charges.
The standard practices of overbilling and making up hours don’t matter much on paper as long as the judge deems the final payment fair, Flores said. But if an indigent defendant wanted to claim his lawyer provided ineffective counsel, he would need only point to these inaccurate vouchers to claim his attorney lied about the time spent on the case.
“Our voucher forms are essentially affidavits. We are testifying under oath that all that information is correct,” Flores said. “They’re forcing us to lie on almost every one of them.”
NO STEERING THE SHIP
But perhaps the single largest problem the county faces in controlling its indigent defense costs is that there is no one person steering the ship.
Day-to-day management of low-income legal defense is spread out among more than 20 different county departments, each most concerned with overseeing its small area of responsibility. And many administrators exhibit a poor understanding of the functions required in other offices or lack the authority to make sweeping changes on their own. (See "On the indigent defense team, he's the point guard")
To budget writers, who ensure money is available to pay court-appointed attorneys, the problem is purely mathematical: The costs continue to rise and the county has fewer and fewer dollars to meet them.
The county auditor’s office — which cuts the checks to attorneys — sees all the hours claimed out of each court. But the sheer volume of bills — all submitted on paper — makes a comprehensive review nearly impossible.
The Monitor requested copies of all vouchers submitted in the last four years by 25 of the highest-paid, court-appointed attorneys but was told the information could not be made available for less than $60,000, would fill up 31 boxes and would take the equivalent of a full year of one county employee’s time to pull together. The documents are unavailable for review to outsiders or internal employees in electronic format, a county spokeswoman said.
The judges, who are constitutionally obligated to ensure all defendants receive adequate representation, tend to downplay or misunderstand concern over the increasing financial burden. Many interviewed for this story said they routinely order indigent defendants who plead guilty to pay back their attorney fees — thus helping the system fund itself. But the county actually recouped less than 1 percent of that total last year.
And on the periphery, the decisions of dozens of other government entities — such as the district attorney’s office, state crime labs, and every one of the county’s 22 municipal law enforcement departments — also play a significant role in the overall cost by determining how quickly evidence can be analyzed and defendants can be brought to trial. Every time a court-appointed lawyer comes before a judge and the state is not ready, the county’s bill goes up.
“There’s a lot of spokes on the wheels of justice,” said Judge Rose Guerra Reyna, who presides over the 206th state District Court. “They all play a role in making the wheel go round.”
No better example of the system’s disjointed nature emerged this year than the impact of a $30-an-hour increase in attorney compensation rates implemented in late 2008. The fee prior to the increase was $40 an hour for in-court work and $70 an hour for out-of-court work.
The area’s judges defended the raise as a long overdue update to a pay schedule that was last changed in 1987. But it increased the county’s monthly indigent defense costs by nearly 60 percent just as the nationwide recession caused revenues to drop.
To make matters worse, county budget writers didn’t receive official notification of the change until after the final 2009 budget had been approved.
As a result, the fund for paying court-appointed attorneys dwindled to just $29 last month, forcing the county to tap into emergency coffers twice to fund the resulting $3 million shortfall. (See "Budgeting for indigent defense a tricky process")
This type of “left hand ignoring the right hand” planning lies at the root of the current funding crisis. And unless all the stakeholders come together to address these rising costs, paying for indigent defense will continue to remain a problem, said Israel Ramon Jr., presiding judge of the 430th state District Court.
“The Commissioners Court deals with numbers. We have to deal with the Constitution,” he said. “But the indigent need to be represented and the lawyers need to be paid.”
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Jeremy Roebuck covers courts and general assignments for The Monitor. He can be reached at (956) 683-4437. Jared Janes covers Hidalgo County government, Edinburg and general assignments for The Monitor. He can be reached at (956) 683-4424.
