El Paso Times

April 11, 2002

County public defense gets high marks

Jennifer Shubinski
El Paso Times

When Lower Valley resident Juan Gutierrez, 41, was arrested for assault, a lawyer was appointed to represent him in court.

Gutierrez, who eventually pleaded guilty to the charge, said he thought his court-appointed lawyer did a good job.

"She was pretty good to me," Gutierrez said. "There was no beating around the bush; she just gave it to me straight up."

Gutierrez is like thousands of other El Pasoans who rely on the county to provide them defense lawyers, and El Paso was ranked as one of the best counties in Texas when it comes to providing lawyers to indigent defendants, according to a recent study by Texas Appleseed and the Equal Justice Center.

Of the 5,906 felony cases in El Paso County last fiscal year, about 75 percent of the people charged needed an appointed lawyer, said Mike Izquierdo, executive director of the Council of Judges. A similar percentage of the 19,634 criminal misdemeanor cases filed in El Paso County last fiscal year required court-appointed lawyers, Izquierdo said.

About half of the defendants in El Paso who can't afford to pay for their own lawyers get public defenders, and the other half get lawyers from private practice appointed to represent indigent defendants, and that was one of the reasons the county fared so well in the recent study.

"Of course it was not a perfect score," said public defender Clara Hernandez, "but it gives us something to work toward. For our first try, it was pretty good."

Overall, El Paso exceeded four of the six categories looked at by the Texas Justice Center and Texas Appleseed, scoring well on prompt access to counsel, lawyer selection method, indigence standards and countywide consistency.

In two of the categories, lawyer qualifications and fees and expenses for lawyers, El Paso County fell short and received two C's.

The report looked at how counties are carrying out the Texas Fair Defense Act, enacted by the Legislature in 2001 and effective at the start of this year. The act regulates how and when lawyers must be appointed to represent the poor accused of a crime in one of Texas' 254 counties.

"Texas was among the worst in the country, and it is not something that could be changed overnight regardless of the effort and good will," said El Pasoan Jerome Wesevich, litigation coordinator and criminal justice team leader for Texas Rural Legal Aid, who helped write the report.

El Paso was one of 80 counties across the state evaluated by Texas Apple Seed and the Equal Justice Center on the counties' progress in carrying out the new law.

One important category set out by the Texas Fair Defense Act, and analyzed in the study, was prompt access to lawyers. El Paso County exceeded the basic requirements set out by the act and received an A, while many counties received a B or less and some got an F.

"The most important thing that we scored well on is prompt access to counsel," said Judge Guadalupe Rivera, presiding judge of the Council of Judges.

In El Paso, defendants are appointed counsel within 24 hours of arrest, instead of the 48 hours required by law, said Hanna Liebman Dershowitz, legal director of Texas Appleseed.

"It's among one of the best plans out there, and we know that from looking at many of the more populated counties," Wesevich said. "There are problems with the plan that El Paso adopted, but that is reflected in scores and description, but there are good aspects as well."

El Paso's mediocre score in lawyer qualifications is not a reflection of local lawyers, but rather that there is no guarantee an appointed lawyer will be qualified to defend his or her client, said Bill Beardall, executive director of the Equal Justice Center.

In El Paso, all private lawyers, civil or criminal, are placed on a wheel to represent indigent defendants. To opt out, they must pay a fee; otherwise, they are left on the list. The money helps pay for indigent defense in El Paso.

"That raises some concern that a lawyer who doesn't even practice criminal law, or a lawyer that doesn't have the experience to handle a complex serious case will be appointed," Beardall said.

Appointed lawyers who represent defendants charged with murder and capital murder are screened by a committee before being placed on a separate "murder representation wheel." The public defender's office also assigns lawyers to handle different types of cases depending on their expertise.

The Texas Fair Defense Act specifies that lawyers must be screened for their qualifications before being placed on a representation list, Beardall said.

"El Paso's scheme turns it around by putting everybody on the list," he said. "It is more reliable to do it the other way around. If they're not qualified, don't put them on the list at all."

Rivera said judges may begin evaluating lawyers before they are appointed to cases.

El Paso County also scored poorly on the fees it pays to appointed lawyers, fees that are low compared with fees elsewhere in Texas, Beardall said.

"The fee schedule is important because it has a lot to do with whether the lawyers are compensated in a way to be advocates for their client and to do a good job," he said.

In El Paso, appointed lawyers representing misdemeanors to felonies are paid $65 an hour for court time and $50 an hour for out-of-court time, Rivera said. She said the fees were recently increased from $40 an hour for court time and $30 an hour for out-of-court time to be more in line with the rest of the state.

The county has budgeted $4.6 million for indigent defense this fiscal year, up from the $4.38 million budgeted in fiscal year 2001, according to the county auditor.

"El Paso has always been conservative with use of taxpayer money," Rivera said.