In the quiet fight between judges and commissioners over how to tackle indigent defense in Bexar County, one side's starting to drop some troubling data challenging the current system.
Bexar's courts use an indigent defense system known as "the wheel," a rotating list of attorneys approved by misdemeanor and felony court judges. In a perfect world, poor defendants would always be assigned lawyers through pre-trial services, but for a host of reasons outside a judge's control, defendants often show up in court without an attorney, meaning judges have to appoint from the bench.
But recent numbers from county judicial services show a small number of attorneys are handed far more cases than others, as Elaine Wolff first wrote this week at Plaza de Armas. The average number of cases assigned to attorneys each month on the misdemeanor wheel is 6.7. A dozen attorneys in August were assigned cases at three times that average, past the threshold that usually makes the Texas Indigent Defense Commission start to worry.
The data complied by Bill Wiehl, a senior analyst with judicial services, also surveys outcomes for defendants with appointed attorneys versus those who could afford to hire one in Bexar County's misdemeanor courts for the first nine months of 2012. Defendants appointed an attorney were more likely to plead guilty or no contest to charges (34.9 percent of cases versus 24.1 percent with hired attorneys) and less likely to have their cases dismissed (34.9 percent versus 36.9 percent). More jarring are numbers showing defendants assigned to the courts' top 27 "frequent fliers," as Wiehl calls attorneys with the most appointments, were much more likely to plead to charges (52.3 percent plea rate versus 24.1 percent with hired attorneys) and much less likely to have cases dismissed (25.8 percent versus 36.9 percent with hired attorneys).
A scathing 2010 evaluation of Bexar County's system pinpointed problems with the wheel, among them being cases weren't assigned in a "fair, neutral, and non-discriminatory manner." Meanwhile, E-N and WOAI investigations suggested a link in some courts between attorneys with high caseloads – therefore banking more in court-appointed fees – and campaign contributions to judges.
Thus began commissioners' attempts to push us away from the wheel, likely toward some type of managed assigned counsel system, modeled on a highly-regarded program out of California's San Mateo County – a so-called private defender's office, where an independent organization would assign cases to attorneys rather than judges.
"We don't think the present system is operating properly," contends Wiehl. "What we're looking for is someone to step forward to train attorneys on how to handle cases in misdemeanor court, to mentor them, to provide investigative services."
County Court at Law Judge Jason Wolff naturally resists efforts to tell judges how to run their courtrooms, and says problems highlighted in 2010 have largely been resolved, pointing to the county's most recent and glowing evaluation by the TIDC this summer. "[The TIDC] came back and, quite frankly, told us we kicked butt, that we'd fixed things," Wolff says.
Wiehl contends the TIDC didn't dig deep enough into the data. Wolff insists the numbers don't tell the whole story.
Wolff says the high number of appointments to certain attorneys may reflect single defendants who have multiple misdemeanor cases. And judges have to make appointments in the interest of justice, he says, particularly if a defendant has been languishing in jail with an unresponsive attorney. In such instances, a judge may grab an attorney who's "taken the initiative to hang around."
Wolff estimated 20 to 25 percent of appointments made "off the wheel" could be accounted for by jail court, where defendants are known to plead guilty for time served, and where assigned attorneys are often no-shows. Attorneys who take such appointments would naturally show higher caseloads with higher plea rates, Wolff said.
Wolff says to truly evaluate an appointed attorney, you have to pull each case to see whether the pleas were justified. He defended attorneys on judicial services' list of "frequent fliers," (the Current tried unsuccessfully to contact some) saying, "I know they're not forcing these defendants to take pleas."
December wasn't a particularly glowing month for SAPD.
Early this year, when cops found then-SAPD Sgt. Joseph Myers' incoherently roaming around in his a T-shirt and underwear near where his truck had crashed at 281 and Josephine, Chief William McManus publicly suspected a cover-up.
That bizarre February scene led to two grand jury indictments this month. Myers, who resigned this year, is accused of forging detectives' names to steal $7,000 from a department fund used to pay informants, and for trying to swap toilet water for urine during a drug test ordered the morning of the incident. SAPD Sgt. Ramiro Garcia, who's appealing a suspension he already served, was charged last week with evidence tampering during the incident.
Meanwhile the DA's office is investigating whether SAPD officer Michael Garza was justified in shooting and killing his girlfriend's ex-boyfriend, Alfredo Hector Aragon, this summer.
A suspension letter signed by McManus, released this month, hints at an internal investigation showing Garza lied about details of the shooting and was drinking on the job.
Garza initially told officers his girlfriend, Abigail Hernandez, contacted him around 2 a.m. on July 27, saying her ex was threatening her. According to his suspension letter, texts between Garza and Hernandez prove that's not how things went down. Garza, according to the letter, texted Hernandez at 1:30 am, just before picking her up at the Thirsty Horse Saloon, saying "Ok ma. I got half of crown n seven. Guna chug. B der in bout 13 mins and 27 seconds." After the shooting, an officer on the scene noticed the smell of alcohol on Garza's breath.
The initial police report says Garza picked Hernandez up and took her back to her apartment, where Aragon, waiting in the parking lot, started firing as the two waited for a security gate to open.
But the suspension letter states Hernandez and Aragon argued in the parking lot before shooting broke out. Aragon then fired at Garza and Hernandez as they drove away, bullets hitting Garza's unmarked police truck 12 times and striking Hernandez in the arm and abdomen.
Garza told officers he was chased by Aragon until just before he got to Aragon's home. But evidence showed Garza chased Aragon for nearly 2 miles. Garza fired nine rounds at Aragon at the front door of his home, striking him three times – in the right foot arm, and back. The first officers on the scene found Aragon motionless and handcuffed; Garza was uninjured.
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