Gideon Alert: Policies of prosecutor and judges close doors of Val Verde County (Del Rio, Texas) public defender

BY David Carroll on Sunday, October 24, 2010 at 6:29 PM

On October 10, 2010, the San Antonio News ran a feature article on the closing of Texas’ first regional public defender office.  The office served Val Verde, Kinney, Terrell, and Edwards counties, and had opened in 2006 as a division of Texas Rio Grande Legal Aide, Inc. (TRLA). 

TRLA adhered to the ABA Ten Principles demand for early screening of defendants and early involvement of attorneys.  This had an immediate impact, as the region’s “dismissal rates steadily rose, mirrored by significant drops in jail population.”  This was reportedly too much for the district attorney.   In January of 2009, the prosecutor stopped making files accessible to TRLA -- though not to other criminal defense lawyers who were not as vigilant about following the ABA Ten Principles. 

The National Right to Counsel Committee report Justice Denied: America’s Continuing Neglect of our Constitutional Right to Counsel notes that, “[i]n the absence of open file discovery, criminal and juvenile proceedings remain a form of trial by ambush, in which far less information is available to the defense prior to disposition than is typically available in ordinary civil proceedings.”  Without access to basic discovery from the prosecutor, TRLA attorneys had to acquire that information in other ways.  They needed more time for investigations, had to ask for more preliminary hearings to learn more about the case and witnesses, and had to file more motions than would likely have been necessary if the prosecutor had provided discovery to them.  All of this clogged the region’s court dockets, to the irritation of judges.

Texas statutes cede the control and authority over indigent defense to judges (in direct violation of the ABA’s first Principle requiring independence).  Local judges responded to the slow down of TRLA cases by simply no longer appointing TRLA lawyers to cases.  With fewer and fewer cases going to TRLA, county commissioners eventually saw no benefit to keeping the office open.  In September 2010, the county commissioners let their contract with TRLA lapse, and one of the few public defender offices in Texas died.

The Texas Fair Defense Act (FDA) was designed to bring more uniformity to right to counsel services in Texas by, in part, requiring judges to ensure that appointments are allocated among qualified attorneys in a fair, neutral, and nondiscriminatory manner.  But with limited resources to ensure that the Act’s requirements are carried out, it is unknown to what extent counties are actually adhering to its requirements.  For example, an October 13, 2010 San Antonio News story on Bexar County (San Antonio) recounts that the judges there appoint hundreds of attorneys whose "names are not even on the lists," while favoring a select handful of attorneys who carry caseloads at more than twice national workload standards.

As Harris County (Houston) is poised to name its first public defender within the next two weeks, TRLA serves as a cautionary tale.  Without state legislation requiring independence of the defense function, judges will always be free to simply stop appointing the new public defender at any time for any reason.  And, without statewide reform of discovery laws, prosecutors will always be free to selectively force ethical defenders to the side in favor of those willing to put their own financial interests above the duty they owe their clients.

Texas policymakers should note that it was the former Val Verde Sheriff who said TRLA was a “positive program” that saved the county money (over $1 million) by keeping people out of jails.  In these difficult economic times, can Texas afford to allow prosecutors and judges unfettered ability to hamper the constitutional right to counsel at taxpayers’ expense?