[Deathpenalty] death penalty news----TEXAS

[Rick Halperin]

August 19


TEXAS----impending execution

The Role Of Scientific Forensic Evidence Questioned In Pending Texas Execution



Larry Swearingen is scheduled to be executed Wednesday by the State of Texas.

It was 19 years ago that Swearingen was convicted of the abduction, rape and 
murder of Melissa Trotter. This is the sixth time that Swearingen had a date 
with death in the Texas prison system. But lingering questions about his guilt 
have caused the courts to repeatedly step in.

“My name is Larry Ray Swearingen, I’m on death row — scheduled to be murdered 
August 21st for a crime I did not commit,” said Swearingen in an interview at 
the Texas State Penitentiary at Huntsville. “You have faulty forensic sciences 
that are upholding this conviction, and now they want to murder me to make sure 
the conviction doesn’t come undone.”

After 2 decades on death row, Swearingen was pudgy, bald and his skin was a 
pasty white. In all that time, he never stopped insisting on his complete 
innocence.

“No, I didn’t not take Melissa’s life. We were friends in the end. We’re 
friends now. We will always be friends,” Swearingen said.

But the police and prosecutors who worked to convict Swearingen of capital 
murder and who are working now to have him executed contend that was a lie — 
one of Swearingen’s many lies.

“There is no other perpetrator out there. There's no other bogeyman. There's no 
other serial killer that killed Melissa Trotter. It's Larry Swearingen,” said 
Kelly Blackburn with the Montgomery County District Attorney’s Office. “There 
is a mountain of evidence that connects Larry Swearingen to the death of 
Melissa Trotter that he was convicted on — besides science.”

Forensic science is central to solving murders. Prosecutors rely on it every 
day. But in the Melissa Trotter case, some of the forensic science appeared to 
contradict the prosecution. However, Blackburn said there was a wealth of 
circumstantial evidence in the case that pointed directly at Swearingen.

“Larry Swearingen wasn't connected to this case through DNA or through 
science,” Blackburn said. “He was connected to this case and was convicted on 
evidence that put him at the scene that on a mountain of circumstantial 
evidence that put him in Melissa Trotter together ?— what happened before, 
during and after her murder. So that's why he was convicted.”

Swearingen admitted if someone only listened to the prosecutors’ narrative, he 
sounded guilty. But he said they consistently used junk science to pin a murder 
on him while dismissing legitimate forensic science that proved it was 
impossible for him to be Melissa Trotter’s killer.

“I was in jail on trumped up charges. It was determined that Melissa Trotter 
died at the time I was incarcerated in the Montgomery County jail,” Swearingen 
said.

Melissa Trooter, 19, went missing on Dec. 8, 1998, in Willis, Texas, north of 
Houston. She was an outgoing college student last seen alive at the student 
center at Lone Star College Montgomery County campus. Swearingen at that time 
was a 27-year-old electrician. He was driving a stolen red pick-up truck and 
had a history of problems with the law.

“I was a screw up. I was a violent screw up. 2 plus 2 and you get the wrong 
conclusion. 'Hey, he’s done these things before. Look over here; yeah we have a 
good suspect here,' ” Swearingen said.

Swearingen immediately became the suspect in the Melissa Trotter missing 
persons case. They had been seen together at the college the day she went 
missing. Three days after her disappearance, Swearingen was arrested on 
outstanding traffic warrants. He’s been behind bars ever since.

While being questioned by investigators in 1998, he told them he didn’t know 
Melissa Trotter and had never spoken to her.

“I don’t even know the girl. Up until that point I didn’t even know that the 
girl existed.” Swearingen told officers.

“Then why would she have your pager number?” an officer asked.

“She asked me if there was a way to get hold of my sister," Swearingen 
responded. “When I walked up to the marina she asked me, ‘aren’t you Becky’s 
brother?’ And I said yes.”

“You ain't never talked to her before?” an officer asked.

Swearingen responded, “No, never.”

On Jan, 2 1999 — 25 days after her disappearance — hunters found the body of 
Melissa Trotter in a remote location in the Sam Houston National Forest. She 
was partially clothed. Investigators determined she had been strangled with a 
leg segment cut from a pair of pantyhose.

It was now a murder investigation. And the evidence against Swearingen was 
piling up. Police searched his truck and found strands of Melissa Trotter’s 
hair.

Swearingen now admits she had been in his truck many times.

“We were dating. We were friends with benefits. We went out and had a good 
time. I enjoyed being with her, and she enjoyed being with me,” he said. “What 
we did or didn’t do is nobody’s business. There has to be some chivalry in the 
court system where you don’t degrade someone who can’t be here to say, 'yes, 
that’s true,' or 'no, that’s not true.' ”

While Swearingen was in the county jail, there was a strange twist in the case. 
A letter written in lousy Spanish claimed that Swearingen was innocent. In the 
letter, there were details about the case that had not been in the news — about 
the position of the body and the color of Melissa Trotter’s underwear. This 
letter could exonerate Swearingen, except for the fact that he wrote it.

“When they started printing in the paper that they were going to kill me -- 
that’s what prompted the Spanish letter,” Swearingen explained. “I was scared 
to death about it.”

Swearingen said he knew those incriminating details because he had the autopsy 
report and crime scene photos.

Prosecutors argued they had plenty of evidence that tied Swearingen to the 
Melissa Trotter murder: a cell phone tower “pinged” him near where the body was 
found, a match of the murder weapon pantyhose was found at Swearingen’s 
trailer. Polyester fibers from his truck were on Trotter’s coat.

Swearingen countered that cell phone tower “pings” are no longer considered 
legitimate evidence. He said claims of a pantyhose match were overblown and 
inaccurate and that polyester fibers are polyester.

“Fibers are not unique to anything. They’re mass produced,” Swearingen said, 
“So when you say, 'hey, this fiber here is unique.' No, it’s not. It’s 
similar.”

And there was the evidence that the prosecution dismissed. Blood under 
Trotter’s fingernails did not match Swearingen’s DNA. Trotter’s body was only 
lightly decomposed. Experts testified that it appeared Trotter’s body was in 
the woods for no more than two weeks — that’s when Swearingen was locked up in 
the county jail.

Blackburn said none of this matters. He said Swearingen is a killer who has 
proven that he will do and say anything to avoid paying for his crime.

“But even given all that, this isn't what convicted Larry Swearingen. The 
evidence that was presented in the totality of everything that we're looking at 
and the picture that was painted for the jury as to what they were to evaluate 
that put him before, during and after this murder,” Blackburn said. “That's 
what convicted him.”

On Friday the Texas Court of Criminal Appeals and the U.S. Court of Appeals for 
the 5th Circuit rejected Swearingen’s latest motion for a stay of execution.

Swearingen’s appeal now goes to the U.S. Supreme Court.

“I hate to say it, everybody wants to live,” Swearingen said. “I mean it’s a 
fight or flight process. Nobody wants to die for a crime that they didn’t 
commit.”

Editor's Note: This is the first story in a three-part series that investigates 
Swearingen’s claim that he’s innocent.

(source: tpr.org)

**********************

How judicial conflicts of interest are denying poor Texans their right to an 
effective lawyer----For decades, Texans who can’t afford a lawyer have gotten 
caught in a criminal justice system that’s crippled by inadequate funding and 
overloaded attorneys. A growing body of caseload data — and a recent lawsuit — 
point to an even more fundamental hazard: the unchecked power of Texas judges.



It was going to be his last shift at the Velvet Lounge, and all Marvin Wilford 
felt was relief. It was November 11, 2017 — Veterans Day — and as he got 
dressed for work, Wilford put on his scarlet-colored Marine Corps cap. The 
Velvet Lounge, a strip joint in North Austin, billed itself on Facebook as “the 
official afterparty for the city,” but Wilford couldn’t say he had fun: As a 
doorman, he collected cover charges from 10 p.m. to 6 a.m. and did a lot of 
standing, sometimes outside. That evening, the temperature was in the 60s. Over 
his T-shirt and jeans, Wilford pulled on a green hoodie.

It wasn’t that he felt ungrateful. Bald, with an athletic build, the 
61-year-old was a year away from collecting Social Security, and his veteran’s 
pension didn’t quite cover the bills. The club paid $100 a night—not the kind 
of money he’d made running his own building-and-maintenance company once upon a 
time, but enough to supplement what his wife, Christine Wilford, brought in as 
a technician at Voltabox, a company that specialized in lithium-ion batteries.

In fact, Marvin Wilford felt lucky. After serving as a combat Marine in 
Vietnam, he’d gotten in serious trouble. In 1991, he’d been arrested after 
assaulting a police officer and was sentenced to prison for 20 years. He’d been 
released early, but then in 2006 he’d been arrested for assaulting an 
ex-girlfriend and was sentenced to another 10 years. A diagnosis in 2015 of 
post-traumatic stress disorder, and medications, had given him a new start, but 
no one wanted to hire an aging felon. His nephew, who owned the Velvet Lounge, 
had thrown him a lifeline.

Still, after 3 months at the gig, Wilford was done. He’d had hernia surgery, 
and he was walking with a cane. Christine Wilford had been sick, too, wracked 
by a nagging cough. The club, with its drunken brawls, was too unruly a scene. 
“This is not working for me,” Marvin Wilford muttered to himself, throwing his 
cane in the car and heading west on U.S. 290. “There’s gonna be trouble.”

Sure enough, trouble came at around 4 a.m., when a fight broke out by the dance 
floor and a security guard, a 42-year-old named James Jones, escorted 2 women 
outside. Wilford, standing by the door, watched as Jones led the disheveled 
pair — one with no shoes — toward the parking lot. He and Jones had become 
friends, bonding over the troublesome revelers they had to deal with. Jones 
liked to call him Unc, out of respect.

“F— all you security guards!” yelled one of the women. She and her friend 
stumbled toward a car, vowing to return. Then they sped off.

Twenty minutes later, the same car screeched back into the parking lot. By this 
time, other patrons were spilling out onto the sidewalk. Though accounts of 
what happened next vary, multiple witnesses would later say they saw one of the 
women get out of the car, brandishing a tire iron, and lunge at the gathering 
crowd. Jones saw the woman strike Wilford. Wilford recalls trying to keep her 
away from other patrons. Someone hit the woman over the head with an empty 
vodka bottle. Someone else stomped on the hood of the car.

“She was trying to fight everybody,” Jones later recalled. Quickly, the 
security guard grabbed his pistol and shoved it into her hip. “Let go of the 
weapon or I will shoot you,” he warned.

Instead, the woman rushed back into the melee. Jones and Wilford heard gunshots 
from somewhere in the parking lot. “Unc, go in the club,” yelled Jones. Wilford 
ran inside as Jones pointed his pistol into the air, firing two warning shots. 
The crowd dispersed.

By the time the police arrived, just before 6 a.m., the fighting had ceased. 
Several officers interviewed those on the scene — Wilford, Jones, some 
additional security guards and the woman who had charged the crowd, whose head 
appeared to be bleeding. No one was arrested. When Wilford finally got in his 
car to drive home, it was light outside. “I’m through,” he told Jones before 
leaving. “Too much madness over here.”

The security guard nodded. “I don’t blame you,” he replied.

5 weeks later, Christine Wilford was going through the mail when she opened an 
unsolicited form letter from a lawyer — she does not recall who — offering his 
legal services. Her breath caught when she saw why. There was a warrant for her 
husband’s arrest, read the letter. The charge: aggravated assault with a deadly 
weapon, a 2nd-degree felony.

The charge didn’t make sense. As a felon, Marvin Wilford wasn’t allowed to own 
a gun, and didn’t. Neither he nor his wife had heard from the police. As 
Wilford skimmed the letter, his head began to throb. With his criminal record, 
a new conviction could earn him a life sentence. He felt his lungs constrict. 
He couldn’t breathe. Alarmed, Christine Wilford called the Veterans Crisis 
Line. Her husband was having an anxiety attack, she blurted into the phone.

Nine days later, on Dec. 29, the couple drove to the Austin Police Department 
headquarters downtown to turn himself in. Marvin Wilford had spent several days 
at a Veterans Affairs hospital because of his panic attack. Now, sitting with a 
detective in an interrogation room, he learned that the officers who 
interviewed him at the Velvet Lounge had not found him credible. The woman in 
the fight claimed that she’d been threatened with a gun by a man wearing jeans 
and a green hoodie; she later picked Wilford out of a photo lineup. According 
to a police affidavit, Jones told the officers that Wilford kept a gun in his 
car. (Jones denies this, and when the officers checked the car that night, they 
found only Wilford’s cane.) There was video evidence from a witness, the 
detective told Wilford, as he turned on a laptop.

Watching the chaotic cellphone footage, Wilford tried to protest. Yes, there he 
was, in his green hoodie. But, he pointed out, he was clearly holding a cane, 
not a gun. And Jones, he added, had recently learned of his warrant and 
willingly signed a notarized statement to support him, affirming that Jones, 
not Wilford, had pulled the gun and fired it. Surely the police were interested 
in that?

The detective wasn’t persuaded. As Wilford was placed in handcuffs, his heart 
raced. He could not afford a lawyer. His wife’s job barely paid the bills, and 
their impending property tax payment that year — $4,500 for the home they’d 
inherited from his mother, in East Austin — loomed large. “I was really angry 
to be accused of something I didn’t do,” he said later. “Especially with the 
record I have.”

In 1963, the U.S. Supreme Court ruled in Gideon v. Wainwright that a person 
accused of a felony is guaranteed counsel even if the person can’t afford a 
lawyer. How exactly that counsel is provided, however, was left to states to 
decide, and in Texas, this “how” gets further relegated to the state’s 254 
counties — meaning that each county decides how to appoint, and pay, lawyers 
for the poor. Last fiscal year, there were roughly 474,000 indigent cases in 
Texas. There are 19 public defender’s offices, which 39 counties rely on in 
some capacity, but the majority of counties contract with private lawyers, who 
are generally paid a modest flat fee per case. (This is the most common way 
that states fulfill their Gideon v. Wainwright obligations.) More than 150 
counties also participate in a public defender program for death penalty cases.

Travis County, where Wilford was booked, has a limited public defender program 
— it serves juveniles and some mentally ill defendants — but relies primarily 
on a system of managed assigned counsel, in which an independent office assigns 
cases to a rotating cast of more than 200 private lawyers. After being 
transferred to the county jail in Del Valle, on the outskirts of Austin, 
Wilford waited.

He’d taken a few college classes on law after Vietnam, and he knew enough to 
feel hopeful. Surely his lawyer would look into his story. One evening in early 
January, he went to bed early — he was sleepy from the jail-issued anxiety meds 
— only to be shaken awake by a guard at 9 p.m. His lawyer, Ray Espersen, was 
there to see him.

A 58-year-old with strawberry-blond hair and thin glasses, Espersen was one of 
Austin’s most prolific lawyers: The previous year, he’d been paid for work on 
331 felonies and 275 misdemeanors in Travis County, as well as 46 felonies in 
neighboring Williamson County — more cases than nearly any other Austin-area 
attorney. Such was Espersen’s workload, in fact, that in 2015 it had caught the 
attention of the public, when local TV station KXAN reported on the high number 
of cases appointed to him (the equivalent workload, by later estimates, of that 
of at least three and a half lawyers). After the report, the district 
attorney’s office had opened an investigation into apparent discrepancies 
between the number of jail visits that Es­per­sen had billed to the county and 
those recorded at the Travis County Sheriff’s Office.

Wilford did not know this. What he did know was that as he tried to explain — 
about the video, about the gun, about Jones — Espersen didn’t seem to be 
listening. The visitation room was tiny, and the two sat practically knee to 
knee, but “he was looking at the floor, scratching his head, looking everywhere 
but at me,” Wilford recalled. According to Wilford, Es­per­sen’s laptop 
remained closed, and he took no notes.

“Well, have your wife send me that video,” Espersen said at last, according to 
Wilford. (Espersen declined to comment for this story.)

“Hey,” said Wilford sharply, “I was just woken up to come talk to you, and I’m 
trying to tell you what happened because you asked. Now you’re not listening.”

According to Wilford, Espersen asked him to press the button that opened the 
room’s door. Unsure of what else to do, Wilford complied.

He would not see his lawyer again for 6 months.

II.

Indigent defense in the U.S. is in crisis. More than 20 lawsuits filed in the 
past decade on behalf of poor plaintiffs — in California, Louisiana, Georgia 
and other states — point to this predicament, which has been acknowledged at 
the highest levels: In 2013, in a speech marking the 50th anniversary of Gideon 
v. Wainwright, then-U.S. attorney general Eric Holder bemoaned the number of 
unjust convictions and sentences borne by the poor. “This is unacceptable,” he 
declared, “and unworthy of a legal system that stands as an example to all the 
world.”

The main reason for this crisis is funding. Because the Supreme Court did not, 
in its 1963 ruling, specify how states should pay for counsel, local 
policymakers facing other costs — for schools, roads, law enforcement — 
consistently shortchange indigent defense. This is why public defender’s 
offices are chronically understaffed. It’s also why court-appointed private 
lawyers are overloaded: The fees they’re paid are often so low that they are 
forced to take on a multitude of cases just to make a living. Some overburdened 
lawyers, in turn, contribute to so-called plea mills, in which, critics say, 
they encourage defendants to plead guilty because they are either too swamped 
to investigate claims or incentivized not to. (In Travis County, for instance, 
court-appointed lawyers are paid $600 for a felony case whether they secure a 
plea deal or get the charge dismissed.)

The problem of funding is especially acute in Texas. Since 2001, when the state 
legislature passed the Fair Defense Act — a law that aimed to overhaul and 
standardize how the state’s poor received counsel — total spending on indigent 
defense has increased significantly, from some $91 million in 2001 to roughly 
$273 million in 2018. But Texas ranks among the states that spend the least per 
capita: Its counties, which shoulder most of the costs, are some of the fastest 
growing in the country, and what little the Legislature chips in to help — some 
$30 million last year — does not match demand. This creates a woeful game of 
numbers on the ground. In 2017, for example, the average court-appointed lawyer 
in Texas made only $247 per misdemeanor case and $598 per felony.

However, the problem goes beyond money. In Texas, the crisis is exacerbated by 
a key structural flaw: Indigent defense is largely overseen by judges. Contrary 
to the American Bar Association’s principles of public defense, which call for 
defense lawyers to be independent of the judiciary, judges in most Texas 
counties decide which lawyers get cases, how much they are paid and whether 
their motions — say, to reduce bail or test DNA — have merit. (Counties do have 
fee schedules for lawyers, but judges set the schedules and retain discretion 
over payment.)

Given that judges are elected based, in part, on the efficiency of their 
courts, this is an inherent conflict of interest. “Whatever the judge wants to 
do, it’s probably not acquit your client,” said Charlie Gerstein, a lawyer for 
Civil Rights Corps, a Washington, D.C., nonprofit that has spent the past 
several years challenging criminal justice abuses around the country. “The 
judge wants to move the docket. The judge wants to get reelected.” (Civil 
Rights Corps filed the class-action lawsuit against the bail system of Harris 
County in 2016.) Lawyers trying to work a case properly — by devoting more time 
or requesting an investigator — face a quandary: Why make the effort if a judge 
can retaliate by appointing them to fewer cases or cutting their pay?

In 1999, Houston Democrat and then-state Sen. Rodney Ellis introduced a bill 
that would, among other things, transfer oversight of indigent defense 
attorneys from judges to county officials. The Lege approved the measure, but 
judges, lawyers and prosecutors resisted, writing more than 300 letters to 
then-Gov. George W. Bush. (“The bill inappropriately takes appointment 
authority away from judges, who are better able to assess the quality of legal 
representation,” said Bush in his veto proclamation.) 2 years later, Ellis 
helped muscle through the Fair Defense Act, which provided, for the first time, 
some funding and oversight by the state, in the form of an agency now known as 
the Texas Indigent Defense Commission. The TIDC was tasked with administering 
funds, enforcing standards and responding to violations. But the law was also 
clear: “Only the judges ... or the judges’ designee” was allowed “to appoint 
counsel for indigent defendants in the county.”

For a long time, the combined effect of this judicial control and lack of 
funding — heavy caseloads, underserved defendants — was hard to quantify. But a 
surprisingly trailblazing move by the Legislature in 2013 gave Texas something 
almost no other state that relies on private attorneys has: comprehensive data. 
That year, lawmakers ordered every county to start reporting to the TIDC the 
number of indigent cases, and fees, given to lawyers in every court. They also 
instructed the TIDC to conduct a study on appropriate caseloads, the first of 
its kind mandated by a state government.

In 2015, the study’s results were released: In any given year, researchers 
found, a Texas lawyer could reasonably handle 128 felonies or 226 misdemeanors, 
or a weighted combination of the two. This set a benchmark against which to 
understand the growing database, which showed lawyers juggling two, three or 
even four times that load. Even the director of the TIDC at the time, Jim 
Bethke, said he hadn’t known “the magnitude of people who were getting run 
through the system on a super mass conveyor belt.”

Today, the TIDC database is staggering in its reach. With just a few clicks, 
anyone can look up lawyers by name and see how many indigent cases they took, 
and in what court and for how much. Finding the highest-earning attorney, or 
the most overloaded, takes minutes. Consider just a few names: In Harris 
County, in fiscal 2017, James Barr earned more than $131,000 for work on 433 
indigent felony cases, which all came from the court of Judge Jim Wallace. In 
the Panhandle, Artie Aguilar won a contract in fiscal 2018 to handle all 
indigent felony cases in Dawson, Gaines, Garza and Lynn counties — a total of 
322 cases, for a payment of $75,000. T.?D. Hammons, who takes cases around 
Amarillo, was paid $99,450 in fiscal 2017 for work on 129 felonies and dozens 
of misdemeanors. He reported that these took up less than 60% of his time, 
meaning that the rest of his time was devoted to additional clients.

Astonishingly, few judges — or lawyers or lawmakers — seem to be aware of these 
figures. Those who are will sometimes argue that caseload limits are 
unrealistic; it’s too arbitrary, they say, to impose a number when situations 
vary from county to county, or when judges are faced with too many defendants 
and too few defense lawyers. But as Texas grows and funding continues to lag, 
these figures offer a place to start—and one thing they show is that judicial 
oversight of an indigent defendant’s right to a lawyer is becoming untenable.

Just how untenable is left to poor defendants like Marvin Wilford to wrestle 
with — and for quixotic challengers around the state to try to change on their 
own, as one young, newly minted attorney named Drew Willey discovered for 
himself. After graduating from the University of Houston Law Center in 2014, 
the green-eyed, sandy-haired 27-year-old learned that he couldn’t take indigent 
cases in Harris County right away — the public defender’s office was too small 
and competitive, and court appointments required a few years’ experience. So 
he’d ventured into nearby counties, and soon he found work in the misdemeanor 
court of Judge Jack Ewing, in Galveston County. There, Willey was assigned to 
the case of an 18-year-old named Wayne Lucas.

Lucas had been charged with burglary of a vehicle. But when Willey went to see 
him in jail, Lucas told a different story. He claimed that he’d been biking to 
a convenience store to buy cigarettes when a screw from his bike flew off. He’d 
been looking around for the screw, he said, when police officers showed up, 
saying that a witness had reported to 911 that a man who fit Lucas’ description 
was jiggling the door of a car in a driveway. The officers said the witness had 
filmed it with his cellphone.

Willey set into the case’s details. It was strange that Lucas was charged with 
burglary, rather than attempted burglary, since nothing had been reported 
stolen. The police report mentioned the video, but after Willey requested it 
from the district attorney’s office, he never got it. Willey asked Ewing to 
appoint an investigator, who interviewed the witness. The witness said that all 
he’d seen was Lucas try to open the car door without success. The witness also 
denied taking a video.

It was clear there wasn’t much of a case for burglary. Willey persuaded 
prosecutors to let Lucas plead to criminal mischief, a misdemeanor that he 
could eventually get expunged from his record. Lucas, who was training to 
become a manager at a Jersey Mike’s sandwich shop, was thrilled. He’d been in 
and out of jail enough times as a juvenile. “I just wanted to get my life 
going,” he said.

Things would not be as straightforward for Willey as for his client. When the 
lawyer submitted a voucher for $1,320 for his work, Ewing approved only $511, 
citing “excessive out-of-court hours.” (Although Galveston County pays 
attorneys by the hour, the court “expects no more than 3.0 hours for appointed 
counsel to visit with defendant, secure offer from District Attorney’s Office, 
convey offer to defendant and appear in court for the plea or modification.”) 
Willey filed two appeals, after which he received the full amount.

But Willey soon found himself in a pattern. When he secured a dismissal in 
another case and asked for $528, Ewing approved $330. (This time, Willey’s 
appeal was denied.) When he asked for an investigator again, Ewing denied the 
request. Meanwhile, Willey also began filing lengthy motions on behalf of 
clients who had been assigned to Galveston’s jail docket — a system in which 
defendants who couldn’t afford bond were forced, as he saw it, to plead in a 
hurried, assembly-line fashion. Then, in May 2016, Willey found out that four 
cases he’d been working on had been assigned to another lawyer.

Willey tried for several weeks to get a clear explanation from Ewing. Finally, 
in mid-July, he sought the judge out in his chambers. Worried that Ewing would 
claim that he’d been an ineffective lawyer, Willey decided to record the 
conversation so he’d have evidence of their exchange. (It is legal in Texas to 
record outside the courtroom and without the other party’s consent.) “Whoever I 
feel I need to appoint, I’m going to appoint,” the judge told Willey. Willey 
couldn’t argue with that. But why, he asked, remove him in the middle of these 
cases? Didn’t changing attorneys midstream hurt a defendant’s ability to get 
the best representation?

Ewing grew impatient. In the year and a half he’d been a judge, he explained, 
Willey was “the only attorney that has, on almost every case you’ve had in my 
court, asked for an appointment of an investigator.” (Willey says he asked 
twice.) Normally, he added, attorneys in his court billed three hours for 
pleading out a case, for about $198.

“I applaud your wanting to help and get the best deal you can for these 
people,” the judge continued, but Willey’s bills were excessive. “I can only 
count and pay for what would be reasonable.” (When reached for comment, Ewing 
did not dispute the words from Willey’s recording. But, he stressed, context 
was important. He wasn’t the only one to deny Willey’s full requested payments; 
so had two other judges in Galveston County, and Willey had not contested 
those. As for the reassignment of Willey’s jail docket cases, Ewing pointed out 
that the lawyer he gave them to had, unlike Willey, 28 years of experience. 
Furthermore, according to Ewing, it is not uncommon for jail docket defendants 
with other pending cases to be reassigned to lawyers who are already 
representing them.)

Willey was stunned. He was caught in a system, he realized, that didn’t allow 
him to really represent his clients. The judge, forced to apportion scant 
resources, was caught, too. “How could things have grown this bad?” Willey 
wondered as he left the judge’s chambers. “How could nobody stand up?”

III.

Back in Travis County, Wilford tried to clear his head. Had he offended his 
lawyer? Did he still have a lawyer? Espersen had given him a business card. 
Before heading back to his cell, Wilford placed a call to his wife. The meds 
were making him fuzzy, he told her; he was worried he’d messed up, and he 
needed her to call Espersen.

Christine Wilford was used to calls from jail. She and Marvin Wilford had 
married in 2006, right as he began his second stint in prison, and much of 
their relationship had been defined by bars. A native of France, she wore 
small, chunky-frame glasses and kept her hair in golden-brown braids; a tattoo 
on her wrist featured her husband’s nickname, Blocko, in cursive letters. She 
told him not to worry.

The next morning, she reached Espersen, who briskly confirmed that he was her 
husband’s lawyer. But over the following few weeks, according to Christine 
Wilford, Espersen did not pick up or return her calls. Marvin Wilford called 
Espersen, too, with no success. The veteran tried to distract himself, doing 
push-ups in his cell and reading the Bible (“the book of Psalms, all the way 
through,” he said). Christine visited on Wednesdays and Saturdays, and the two 
became friendly with his cellmate, a former Army Ranger.

At least twice, Wilford was given a court date only to learn that the hearing 
was delayed. By late March, he had sat in jail for almost 12 weeks with no 
word, according to him, from his lawyer.

What neither he nor his wife knew is that this was exactly how things were not 
supposed to go in Travis County. More than three years earlier, on the 
initiative of a judge named Mike Lynch, the county had revamped the system by 
which it provided for poor defendants. Lynch, who was well known around the 
courthouse — he’d worked as a defense lawyer, a prosecutor and for 2 decades as 
a judge — had grown troubled by the role of judges in overseeing indigent 
defense. For one thing, no one had the time to assess defense lawyers’ 
performances. The judges convened over lunch twice a year to review which 
attorneys were qualified to take appointments, but the process felt arbitrary 
and time consuming.

There were also disagreements over pay and allegations of favoritism. Although 
judges were supposed to appoint attorneys from a rotating “wheel” of names, 
they often did not; in 2014, for example, courthouse records showed that judges 
made almost half of their appointments from the bench. (“Several of them were 
always assigning the same handful of lawyers,” said criminal defense lawyer 
Betty Blackwell.) This meant that some lawyers got an overabundance of cases, 
while others felt overlooked. Amber Vazquez, a lawyer known among defendants as 
the Queen of Acquittals, said she was removed from the wheel in 2012 after 
multiple disputes with different judges. “I was challenging everything, as a 
defense attorney is supposed to do,” said Vazquez. “Then the pushback started.”

With a committee to help him, Lynch searched for an alternative. A full public 
defender’s office was too expensive — some $33 million a year — and would 
likely meet with resistance for cutting into private attorneys’ income. So 
instead, Lynch turned to managed assigned counsel, a model pioneered in San 
Mateo County, California, that had also been adopted in Lubbock County. In that 
system, the government still contracted with private lawyers, but an 
independent office — rather than the judges — oversaw appointments and 
payments. Lawyers had strict caseload limits and easy access to investigators, 
they were paid not just for taking cases but also for filing motions and 
working outside the courtroom, and they received frequent performance 
evaluations.

Intrigued, Lynch drafted a proposal to create a similar model in Travis County, 
and in early 2015, an independent office known as the Capital Area Private 
Defender Service opened its doors in Austin. In legal circles across the 
country, the move — highly significant for an urban county in Texas — was 
hailed with cautious optimism. Austin Lawyer called it “the culmination of 
decades of uneven attempts” to establish fair representation for the poor, 
while a government study out of Michigan would eventually report that “CAPDS 
provides a high quality model for reform.”

The office, located for a time on the seventh floor of the Travis County 
courthouse, was tiny, with no windows, and its first two employees — executive 
director Ira Davis and his deputy, Bradley Hargis — had experience as 
court-appointed attorneys, though none in a public defender’s office. Still, 
things felt hopeful. The next hire, ­Trudy Strass­bur­ger, had recently moved 
to Austin after working as a managing attorney at the Bronx Defenders in New 
York. She brought the energy of an outsider, as well as expertise in “holistic” 
defense: the idea that effective representation of low-income people requires 
not just legal but also social support. She persuaded the office to hire an 
immigration lawyer and two social workers.

Almost immediately, bench appointments plummeted. And now that lawyers did not 
have to persuade a judge to pay for an investigator — they asked CAPDS instead 
— investigations increased, from fewer than 100 per year to more than 400 per 
year. (The number of case dismissals also increased.) Any lawyer who wanted to 
receive appointments had to apply with a review committee; an analyst crunched 
numbers on case outcomes. Frustrated families could call CAPDS if they were 
having problems. “All day long, the phone rings,” Davis told me.

Christine Wilford learned about CAPDS from a social worker. Desperate for help, 
she asked the social worker to call the office. Was Es­per­sen still even her 
husband’s lawyer? Yes, came the answer. But, according to the Wilfords, they 
still did not hear from him. A court date of March 29 came and went with 
another continuance.

Finally, in the early morning of April 12, Christine Wilford received a call 
from her husband’s cellmate, who said that Marvin Wilford was on his way to 
court. She drove downtown, arriving at the courthouse well before 9 a.m. She 
made her way past security, up eight floors, to the courtroom of Judge Karen 
Sage, where she’d been told she’d see Wilford. Before taking a seat, she found 
the bailiff.

“Do you know if Mr. Espersen is here?” she asked. She had no idea what he 
looked like. After a prosecutor pointed him out, in an area reserved for 
lawyers and court staff, Christine Wilford waited for him to approach her.

Espersen declined repeatedly to be interviewed for this story, though I called 
and emailed many times over several months and followed him around the 
courthouse for a week. (When I asked for a chance to explain my reporting and 
include his perspective, he replied, “I like surprises.”) By all accounts, 
however, he is well liked by Austin’s judges, who appreciate his knowledge of 
Spanish and his willingness to take on unpalatable cases, such as aggravated 
sexual assault.

“He’s got tough skin, and he’s competent,” said Judge Brenda Kennedy, who has 
appointed him in the past to deal with uncooperative clients. “He’s still able 
to represent and sometimes get results for them.”

He is known as much for plowing through his daily caseload — 11 court 
proceedings on average, he told the Austin American-Statesman in 2014 — as for 
his sense of humor. “So this, here, is like a sexual act,” he once declared in 
a courtroom about jury selection, according to a blog post by prosecutor Mark 
Pryor. “We’re feeling each other out, getting to know secrets about one 
another.”

So it was likely not out of character for Espersen to walk over to Christine 
Wilford and, after she introduced herself, smile at the sight of her long 
braids. “Oh!” she recalls him saying. “Are you related to Milli Vanilli?” 
Before she had a chance to answer, he did a little dance.

“Girl, you know it’s true,” he sang, echoing the chorus by the famously 
lip-synching ’80s pop duo.

Christine Wilford, who had never heard of Milli Vanilli, was so taken aback 
that she no longer remembers the rest of their exchange, except for the fact 
that her husband’s court date was again pushed back. Espersen did not 
communicate with Marvin Wilford, who sat in a holding cell at the courthouse 
before being taken back to jail.

When Wilford returned to court a month later, his wife found Es­per­sen again. 
She wanted to get the lawyer materials that could be helpful to the case, she 
told him: a list of witnesses who could corroborate Wilford’s account, his 
medical and military records, the statement from Jones. That night, after the 
case got another continuance, she texted the list of witnesses to Espersen’s 
phone, then headed to the Dollar Tree to buy an envelope. Carefully, she wrote 
the address of Espersen’s office on it, stuffed copies of Wilford’s documents 
inside and mailed it.

On June 22, Wilford had another court date. According to him and his wife, the 
couple had still not heard from Espersen, and to their knowledge, no one had 
contacted the witnesses or Jones. (In fact, Espersen soon informed Christine 
Wilford that he never received the documents). But that day, Espersen requested 
that the case be put on the trial docket — a potentially favorable move, in 
that it might force the prosecutor to look harder at the case and perhaps even 
dismiss it.

In the courtroom, standing with Espersen before Sage, Marvin Wilford felt 
confused — and weary. He eyed his lawyer. It was the first time they were 
seeing each other since that disconcerting night in jail, yet Espersen barely 
spoke to him. The judge asked for his response to the charges.

“Not guilty, Your Honor,” said Wilford.

IV.

As he left Galveston, turning his white SUV onto Interstate 45, Drew Willey 
fumed. In the weeks after Ewing first removed him from his cases, he’d been so 
upset that he’d filed a complaint with the Texas State Commission on Judicial 
Conduct, listing the canons of the Texas Code of Judicial Conduct that he 
thought Ewing was violating: “Most importantly, Canon 3, C. (4) by failing to 
exercise the power of appointment impartially and on the basis of merit.” Now, 
as he saw it, the judge had spelled out in his own words what Willey had 
suspected all along: There were poor defendants who were not getting a fair 
shake. Willey called his wife in Houston. “You’re not going to believe what 
this guy just said,” he told her, his voice shaking with anger.

He knew what some of his lawyer colleagues would say — that he was too 
idealistic. The state commission was notoriously opaque. And the Texas Indigent 
Defense Commission, which Willey also filed complaints with — over Galveston’s 
jail docket — couldn’t do much either. Technically, the TIDC could make 
recommendations, but judges were not compelled to follow those; the agency 
could also withhold state funding, but it had done that only once, in 2015, 
after it found that two attorneys in Hidalgo County received more than a third 
of all 1,900 juvenile indigent cases in one court. (2 years later, one of the 
attorneys was still receiving the second-most juvenile cases of any lawyer in 
the county.)

“It takes a lot of sacrifice, having that fight,” said Brandon Ball, a lawyer 
in the Harris County public defender’s office who has worked with Willey. “They 
beat you down. They beat you down. They beat you down.”

But the fight is what had attracted Willey in the first place. He’d grown up as 
a middle-class conservative in Arlington, the youngest of 4, with a love of 
math. Gifted and competitive, he was president of the student body at his high 
school. After majoring in business at the University of Texas at Austin and 
pursuing a master’s in tax accounting, he’d enrolled in law school to become a 
tax attorney.

A summer internship at the University of Houston’s death penalty clinic changed 
that plan. Willey was assigned to the case of Marvin Wilson, a 54-year-old 
mentally disabled black man from Beaumont who had been sentenced to death in 
1994 for the murder of a police informant. Wilson claimed he was innocent, but 
the clinic’s lawyers hoped to spare him death by focusing on his mental 
fitness. Willey was tasked with retyping the transcripts from Wilson’s trial, 
and as he worked through them, he grew troubled by what he felt were grave 
missteps by Wilson’s attorney. The state claimed, for example, that both the 
victim and the murderer were black. But a strand of Caucasian hair was found in 
the victim’s hand, a fact that had not been explored.

Willey had leaned generally in favor of the death penalty, but the consequences 
of shoddy defense work made him do an about-face. He took it upon himself to 
investigate Wilson’s case, even interviewing witnesses in Beaumont — an impulse 
that exasperated his bosses, who needed his focus on other matters. When Willey 
visited Wilson on death row, he was struck by Wilson’s positive outlook. 
“You’re not giving up,” Willey remembers thinking.

But by Aug. 7, 2012 — the day Wilson was to be executed — all of the appeals on 
his behalf had been denied. That evening, Willey drove to a Bible study he 
regularly attended. He’d become more connected to his Christian faith in 
college, and now he felt despondent. At sundown, as the study leader cracked 
open a Bible, all Willey could think about was how Wilson was strapped to a 
gurney, drawing his last breaths. He was staring at the floor, lost in thought, 
when the leader read the night’s passage, Proverbs 31:8-9. “Speak up for those 
who cannot speak for themselves,” it went. “Defend the rights of the poor and 
needy.”

The words hit Willey like a lightning bolt. His calling wasn’t tax law, he 
realized. It was to defend the poor. “My jaw was on the floor,” he said. “That 
message was my new guide in life.”

Willey signed up for a mentoring program through the public defender’s office 
and, after graduating from law school, worked a few months for a criminal 
defense attorney in Houston before getting on the appointments list in 
Galveston and Fort Bend counties. His ultimate hope was to work in Harris 
County, which he figured could use the help: Its lawyers were notoriously 
overburdened, and its judges had come under fire in the media for cronyism. In 
one famous example, the Houston Chronicle had reported in 2009 that attorney 
Jerome Godinich missed deadlines in death penalty cases and carried a high 
caseload. Six years later, Godinich still handled almost 500 felonies a year, 
including several capital murder cases. Most of his appointments came from 
Judge Jim Wallace; Godinich was one of Wallace’s top campaign contributors. 
(Godinich and Wallace did not respond to requests for comment.)

But Willey needed experience, so he focused on his work outside Houston. On his 
weekly drives, as he pulled away from his townhouse in the Montrose 
neighborhood, he thought often of Wilson, whose photo he kept in his home 
office. There had to be another way of doing this work, he mused.

In the fall of 2015 — as he was looking into the Wayne Lucas case — the answer 
came to him. A few defendants in Harris County had heard that he represented 
poor clients and called him from county jail; they wanted to know if he could 
take their cases because they weren’t hearing from their court-appointed 
lawyers. Willey turned them down. Without being appointed, he had to work pro 
bono, and he couldn’t afford to do so. Then, driving one afternoon, he had an 
idea: What if he could raise funds for the cost of defending cases?

On January 17, 2016 — just before Martin Luther King Day, a deliberate choice — 
Willey gathered friends and family at a restaurant and announced his plan: He 
was starting a nonprofit called Restoring Justice. To figure out an appropriate 
workload and how much money to raise, he would use the TIDC’s study on caseload 
limits. (For a first-degree-felony case, for instance, he figured he’d raise 
$5,000; this was far less than an attorney would charge a paying client but 
much more than most court-appointed lawyers receive.)

That spring, as his conflict with Ewing began to heat up, Willey threw himself 
into the nonprofit, filling out paperwork and enlisting board members. He also 
took on one of its first clients, a soft-spoken 27-year-old named Maurice 
Johnson, who was in jail for sexual assault of a minor. Johnson claimed that 
the victim, his girlfriend, had lied about her age, but he’d pleaded guilty 
after being told by the investigator that she and her father would testify 
against him.

Johnson’s court-appointed lawyer, Ruth Yvonne Burton, had not visited him in 
jail; they’d spoken only on days when he appeared in court. When Willey got the 
investigator’s notes, he realized that the investigator had never interviewed 
the victim or her father, that the victim had admitted to the police that she’d 
lied to Johnson about her age, and that the father had agreed to accept a 
lesser charge against Johnson — a fact that Johnson had not been told. At the 
sentencing hearing, the prosecutor asked for a sentence of 15 years. Willey 
persuaded the judge to give Johnson 3.

Burton was paid for work on 361 felonies in fiscal 2016. When I reached her in 
a brief phone conversation, she defended her caseload, pointing out that 
several investigators worked in her office. “I don’t encourage anyone to 
plead,” she said. “I will tell them what the facts are.” When it came to 
Johnson, she said, not knowing the girl’s age was not a defense. “That doesn’t 
make you not guilty,” she said.

As Willey saw it, though, having all the facts still made a difference. “It 
matters in how you negotiate for someone, in how you set punishment,” he said. 
“It matters a lot.”

Willey had known that Burton had a high caseload, but it wasn’t until months 
later that he realized just how high. He was at his desk one day, poring over 
the TIDC website, when he discovered that the agency not only issued caseload 
guidelines — as he knew — but also collected detailed data for all lawyers 
doing indigent defense.

Clicking around the database, Willey was shocked. He’d figured only a handful 
of lawyers didn’t have time for their clients, but there were scores of them — 
and not just in Harris County. Court-appointed lawyers all over Texas had 
workloads two or three times the recommended limit. “It was kind of a 
hallelujah moment,” recalled Willey. “I suddenly had this objective checkpoint 
on adequacy of counsel.” Now, it dawned on him, he didn’t have to rely on 
referrals or calls from jail. Thanks to the database, he could figure out who 
most needed help — and go after those clients himself.

He was still mulling this over when, in October 2017, the State Commission on 
Judicial Conduct voted to dismiss his complaint about Ewing. “In its 
discretion, the Commission determined that the judge’s conduct in this 
particular instance, while not necessarily appropriate, did not rise to the 
level of sanctionable misconduct,” ruled the agency. “The Commission remains 
confident that the conduct will not occur in the future.”

Willey shook off his disappointment. He would just move on, he decided, and 
double down on his nonprofit. So when, that same month, he received a phone 
call from Charlie Gerstein of Civil Rights Corps, Ewing was far from Willey’s 
mind.

Gerstein was calling for advice on a client, and as the two chatted, the 
conversation turned to indigent defense. Most lawsuits on behalf of the poor, 
said Gerstein, went after high caseloads and inadequate resources, but lately 
he’d been thinking about judges. If a lawyer faced resistance from a judge, 
then it didn’t matter if he had all the resources in the world. What if, 
Gerstein asked, there were a way to address judges’ retaliation against lawyers 
who tried to adequately defend their low-income clients?

“Wait a second,” Willey replied. “That happened to me!”

His and Gerstein’s minds began to race. Willey had been trying to bypass the 
system through his nonprofit, but maybe, it occurred to him, there was 
something bigger he could try.

5 months later, with Gerstein as his lawyer, Willey filed a lawsuit against 
Ewing.

V.

On June 24, 2018, Marvin Wilford sat on his bunk in the Travis County jail and 
pulled out a notebook. Every other week, Christine Wilford sent him money for 
the commissary, and he’d been intentional with his purchases: $2.50 for the 
notebook, 50 cents for a pen, 42 cents for a stamp and envelope. He began to 
write a letter to Sage, the judge in his case. He was firing his lawyer, and 
over three pages, he did his best to explain why: Espersen barely communicated 
with him; it appeared he’d misplaced documents from Christine Wilford. “He 
didn’t use none of the state money ... to get an investigator to question the 
witness on my behalf, not even the Security Guard who fired the gun,” he wrote.

The thought that he might end up in prison for many years overwhelmed him. 
“When I was in combat, and my life was on the line, I fought for my life,” 
Wilford recalled. “And I realized, ‘I gotta fight for my life now, too.’ I was 
trying to write the letter so she would ­understand.”

For two weeks, neither he nor Christine Wilford got a response. She called the 
Capital Area Private Defender Service phone number repeatedly — more than 20 
times, she thinks — and left message after message. Finally, in early July, she 
heard from director Ira Davis, who told her to attend her husband’s next court 
date, on July 13. More waiting, she thought. If CAPDS was supposed to be a 
recourse, it didn’t strike her as particularly effective.

The truth was, the staff at CAPDS was overwhelmed, too. The sheer volume of 
work — supervising more than 200 lawyers, handling their payments, coordinating 
investigators and social workers — was near impossible for such a small team. 
Not to mention the number of complaints they received. There was barely time to 
look into each defendant’s grievance, let alone a lawyer’s performance. Many 
complaint forms ended up half filled out, with no record of a follow-up.

Strassburger, the New York hire, was particularly frustrated. For all the 
promise of the managed assigned counsel model, she felt that CAPDS’ supposedly 
independent oversight was continually compromised. The use of investigators, 
while better, was not improving fast enough; by 2018, lawyers were requesting 
them in less than 5% of felony cases and less than 1% of misdemeanor cases. And 
while judges no longer assigned cases — this was left to court administrative 
staff — a lawyer could still show up for ad hoc appointments, circumventing the 
setup.

When CAPDS proposed a client’s bill of rights, declaring, among other things, a 
defendant’s right to see his lawyer, the Austin Bar Association refused to sign 
off on it. “Some lawyers were afraid that clients would use it to try and file 
grievances against them,” explained lawyer Betty Blackwell, who sits on the 
board for CAPDS.

Because judges had found it difficult to suspend poorly performing lawyers, 
CAPDS had formed a review committee of criminal defense lawyers to make the 
tough calls instead. But, as it turned out, lawyers found it just as difficult 
to sanction their peers. Committee members were loath to kick colleagues off 
the wheel, thereby depriving them of income; they also had trouble taking 
defendant complaints at face value. “People in the criminal justice system are 
unhappy,” explained Blackwell. “People are going to complain about their 
lawyers.”

Most exasperating to Strassburger, however, was that despite the county’s 
effort to wrest power from the judges, the judges were, in her view, still 
ultimately in control. The review committee actively solicited judges for input 
on lawyers. (Amber Vazquez, for example, who was booted off the wheel before 
CAPDS was created, still could not get high-level felony appointments in the 
new system; her application was denied due to unspecified “judicial 
complaints.”) The court staff that facilitated appointments also reported to 
the judges. Meanwhile, the judges refused to agree to stricter caseload limits. 
(The limit in Travis County is 100 misdemeanor cases and 90 felonies at any 
given time; Alex Bunin, the chief defender in Harris County, told me that 
lawyers in his office rarely go above 30 felonies at once.) Judges also, 
together with county commissioners, refused to increase lawyers’ fees, arguing 
that there wasn’t enough funding.

As a result, many lawyers still juggled big caseloads, racking up complaints. 
At first, Strassburger tried to keep detailed memos. In July 2015, for 
instance, she noted that several defendants had complained about Tom Weber, who 
that year was paid for 305 felonies and 104 misdemeanors. “All reported bizarre 
and unprofessional behavior,” she wrote. When she’d brought this to Weber’s 
attention, Strassburger also wrote, he had dismissed the credibility of his 
clients, calling them “monsters” and “scumbags” and “rapists.” (Weber did not 
respond to requests for comment.)

Three weeks after that memo, the KXAN report about Espersen’s workload aired. 
According to the investigation, over two years, Espersen had billed Travis 
County for 40 hours of jail visits that were unaccounted for. In one instance, 
Espersen claimed to have met with an inmate named Rodney Thomas five times, for 
a total of 13 hours. But Thomas told KXAN that the lawyer visited him once — a 
week before his trial — a claim corroborated by jail rec­ords. Espersen had 
also billed for a visit with Robert Rivera, who told KXAN, “I did not so much 
as receive one visit from Mr. Espersen while incarcerated at Travis County 
Correctional Complex in Del Valle.”

In response to the KXAN report, the district attorney’s office opened a 
criminal investigation into Es­per­sen and a few other lawyers — including 
Weber — for the alleged overbilling. When the CAPDS review committee convened 
early the following year to decide which lawyers could take appointments, 
Strassburger, Davis and Hargis recommended in a joint memo that Weber not 
represent people with mental illness. He’d allegedly told one client to “go 
ahead and kill himself,” they wrote. They urged the committee to “seriously 
consider whether he should be defending indigent people at all.”

They also warned about attorney Phil Campbell, who was paid on 134 felonies and 
300 misdemeanors in fiscal 2015. “Staff observations of Mr. Campbell and 
complaints from other attorneys indicated an attorney who was not truly 
advocating on behalf of his clients but merely conveying an offer and advising 
them to take it,” they wrote. (Campbell declined to comment for this story.) 
Later, they brought up Espersen. Some of his clients had learned of the DA’s 
investigation and written to CAPDS to complain. “I deserve a fair trial,” wrote 
one. “Please help.”

The review committee agreed to remove Campbell and Weber from cases involving 
people with mental illness. But that was it. Weber continued to receive 
appointments on high-level felonies until he was hired by the DA’s office. 
Campbell’s caseload, meanwhile, increased; he went on to take cases in nearby 
counties. (In 2014, he was paid for 106 felonies and 252 misdemeanors; by 2018, 
his misdemeanor caseload had grown to 428.) As for Espersen, the committee 
decided to delay action until the DA’s office concluded its investigation, 
which is still pending four years later. (The DA's office denied a public 
information request for records related to the investigation.)

As long as judges had this much say in the matter, Strassburger realized, 
little would improve for Travis County’s poor defendants. Her despair only grew 
when, in the fall of 2017, several judges approached CAPDS with a question. Was 
it fair, they asked, to look at a lawyer’s number of cases rather than clients? 
Given that some clients had more than 1 case against them at a time, why not 
instead suspend lawyers who had too many clients?

Strassburger was dumbfounded. This would have the effect of raising the 
caseload limit, and caseloads were terrible enough. In yet another memo, she 
outlined her concerns. “We are encouraging attorneys to quickly resolve cases 
and, in effect, punishing those attorneys who handle complicated cases,” she 
explained. In bold, underlined font, she added, “The attorney with the highest 
caseload (748) has not been suspended for exceeding caseload limits in the last 
12 months.” A few months later, disheartened, Strassburger quit.

On July 13, Marvin and Christine Wilford appeared for his court date. They were 
joined by Espersen, who, per Marvin Wilford’s request, had agreed to remove 
himself from the case. Standing before Judge Clifford Brown — who was sitting 
in while Sage was at trial — Wilford listened attentively as the judge approved 
Espersen’s motion. Wilford sighed with relief. “Finally,” he thought.

VI.

“I’m a taller white dude with black cowboy boots,” said Willey. It was November 
2018, and he was describing himself on the phone to Hattie Shannon, one of the 
most overloaded court-appointed lawyers in Harris County; the previous year, 
she’d been paid for work on more than 430 felonies. Willey was hoping to meet 
her at the courthouse.

In the eight months since filing his lawsuit, Willey had been busy: He and his 
wife had welcomed their first baby, a boy, and he was raising funds in earnest 
for Restoring Justice. He’d moved his office to a tiny room on the first floor 
of a house in the Heights neighborhood and was taking on more clients — by the 
end of the year, he’d have 19 active cases. It wasn’t a huge number, but as he 
liked to point out, the nonprofit had saved defendants a combined 49 years of 
incarceration.

He now mined the TIDC database regularly, cross-referencing the data with 
active cases listed on the website of the Harris County District Clerk. This is 
how he’d found his newest target: a 30-year-old woman arrested for PCP 
possession who had been sitting in jail for six months. Her lawyer was Shannon.

The woman’s bond had been set at $10,000, which struck Willey as exorbitant, 
since it was a nonviolent charge. Shannon had filed a few motions, but none 
were to lower the bond, so Willey visited the woman in jail and proposed taking 
her case. When Shannon did not object, the woman was thrilled. (Shannon did not 
respond to requests for comment.)

On the phone, Willey arranged to meet Shannon the next day in the courtroom of 
Judge George Powell to finalize the handover. Immediately afterward, he called 
the woman’s mother, who confirmed that the family could afford to pay a reduced 
bond. She had called Shannon several times, the mother said, but had reached 
her only on the night before her daughter’s court date. (Jail records show 
Shannon visited the woman once.) Her daughter, she continued, had made some bad 
choices, but she’d grown up in church and wanted to be a paralegal. Now 
Thanksgiving was around the corner. “I want her home for the holidays,” replied 
Willey.

He hung up and smiled. His lawsuit against Ewing had made national headlines, 
including in The New York Times, and he’d been receiving messages and donations 
to his nonprofit from all over the country. Lawyers around Texas had written to 
share their own run-ins with judges. A teacher in Florida had mailed him some 
framed quotes from the Gideon v. Wainwright case. They sat in his office now, 
near the photo of Marvin Wilson. “Every case I take over, I see the person has 
potential,” said Willey.

On its face, the lawsuit was a long shot. Judges, like prosecutors, enjoy broad 
immunity for their actions, on the principle that they should be free to make 
judgments without undue fear of retribution. In Texas, after two lawyers filed 
suits against judges — one in Travis County in 2006, another in Tarrant County 
in 2007 — for removing them from cases and appointment lists, both cases were 
dismissed. In Ohio, when a public defender sued a judge in 2012 for removing 
him from dozens of felony cases, the 6th U.S. Circuit Court of Appeals sided 
with the judge.

But the lawyers in those cases sued on the basis of lost income. Willey’s case 
was deliberately different. He was suing not for damages but for the right to 
advocate for his clients. Willey’s lawsuit argued that government contractors — 
which court-appointed attorneys are — have the right not to be fired from their 
jobs for speaking up. In addition, Willey was asking for declaratory relief, a 
statement from the courts acknowledging that if Ewing retaliated against Willey 
again, he would be in violation of the law. The novelty of the approach gave 
the case a chance of success — and offered a possible precedent for how to 
force change in Texas.

The next morning, a chilly 35 degrees, Willey got in his SUV and headed to the 
courthouse. In a small, trapezoid-shaped room that was serving as a makeshift 
courtroom for Powell after Hurricane Harvey, Willey waited for Shannon. When 
she didn’t show, he approached the judge on his own to make his case for 
lowering the woman’s bond: Her parents wanted her back, and she’d served 6 
months. The prosecutor, a young-looking man in a checkered blazer, objected, 
reading out the woman’s previous criminal charges — controlled substance 
possession, a couple of DWIs, possession of marijuana.

Willey pressed again, irritating the judge, who raised his voice. “At this 
point, you’re not even attached to the case,” said Powell. “Let’s handle that 
first and then get back together on it, all right?”

Outside, Willey rolled his eyes. “That’s the culture,” he fumed. “He basically 
said to get the hell out of his face.” He debated going back, then thought 
better of it. He didn’t want to make the judge angrier. He’d wait.

His bet paid off. A week later, Powell agreed to a personal bond. Willey was 
elated — his client would be home for Thanksgiving.

When I called Powell to ask about the case, he explained he’d grown testy in 
the courtroom because it wasn’t clear to him that Willey had filed the 
paperwork to take over. “The fact that he was discussing the case with me was 
an ethical issue,” he explained, “so I just shut things down.”

Powell said he hadn’t given much thought to why the woman had sat in jail on a 
$10,000 bond for several months with one lawyer and gotten out on a personal 
bond after a few days with another. “Ms. Shannon is a good attorney, and she 
works very hard,” said Powell. But he hadn’t known her caseload — or that 99 of 
the 430 felonies she’d been paid for the previous year were in his court. “I 
wasn’t aware,” he told me after I recited the numbers. “That’s interesting. 
Tell me the numbers again, please?”

VII.

“Are we ready on Wilford?” asked Sage. It was Nov. 30, 2018, and through a gray 
door, Wilford entered the Travis County courtroom, a sweater peeking out from 
under his jail uniform. His new lawyer, a 42-year-old with a scruffy beard 
named Andy Casey, patted him on the back. After replying softly to a few 
questions from the judge, Wilford was taken to jail one last time, for 
processing. With that, he was free.

After almost a year of waiting, it was an anticlimactic ending. Not even his 
wife was there to celebrate. She’d caught the flu and was stuck at home. To 
Wilford, the lack of fanfare was perfectly emblematic of how simple his case 
could have been. Casey had called Christine Wilford as soon as he was appointed 
to the case. It had taken a few months, but he’d examined the evidence, witness 
list and video, then negotiated a deal with the prosecutor: If Marvin Wilford 
pleaded guilty to a misdemeanor assault for being involved in the scuffle, the 
felony charges would be dropped. The maximum sentence was a year, which Wilford 
had already served. “The one thing you do see him carrying in the video is a 
cane,” Casey told me.

A month later, I went to visit Wilford at home in East Austin. For Christmas, 
Christine Wilford had bought him a ring to wear next to his wedding band, a 
symbol of all they’d been through together. Marvin Wilford had applied for a 
small business loan to start an online hat shop; his mother had loved hats, and 
he planned to name the venture after her: Marie Antoinette and Sons Hat Shop. 
He could not speak about Espersen without getting agitated. “How old does a 
black man have to be,” he said, “before y’all stop trying to destroy his life?”

When I met with Sage soon afterward and asked about Espersen’s caseload, she 
noted that the numbers can be misleading. Sitting in her office, she pulled up 
a spreadsheet from her own courtroom. “As of Jan. 2, I have the most cases [of 
any judge],” she declared — specifically, 1,200. “That’s not for the whole 
year. Just right now.” But one defendant on her list, for instance, was facing 
a whopping 20 charges. Handling 20 cases for one person, Sage stressed, is very 
different from handling the cases of 20 people.

It’s true that caseload numbers come with caveats. Casey, for example, is 
overloaded, yet he still managed to give Wilford the necessary attention. (It 
should be said that Casey’s caseload is not nearly as high as Espersen’s.) But 
it’s also true that Sage doesn’t deal with 1,200 cases by herself; she has a 
team of prosecutors who have their own staff, including investigators and 
assistants — resources that most defense attorneys do not have. In addition, 
it’s rare for a single person to face 20 charges; on average, one defendant in 
Travis County has 1.6 pending cases.

I pointed out to Sage that the caseload for a lawyer like Espersen reflects 
this average: In 2015, for example, his clients in Travis County numbered 384 
and his cases 424 — not a huge disparity. Could she really make the case, I 
asked, that a lawyer with almost 400 new clients a year could serve all of them 
well, or even adequately? Sage spun back and forth in her chair. “That’s a lot 
of cases,” she said. “Lawyers have a personal responsibility. They know what 
they can handle. Do we really need to tell a lawyer, ‘Don’t do that’?”

That question would swirl around Austin for most of the spring. In a series of 
heated exchanges, criminal justice reform advocacy groups, supported by 
Democratic county leaders, argued publicly that the managed assigned counsel 
model had not solved either excessive caseloads or judicial interference — and 
that the only solution was to expand the county’s public defender’s office 
after all. But resistance from defense lawyers and judges was fierce, and it 
took until late May for Travis County to submit a proposal to the TIDC.

The proposal asks the state for about $24 million over five years and commits 
the public defender’s office, if expanded, to strict caseload limits based on 
TIDC recommendations. (It also asks for more resources for CAPDS.) The TIDC, 
which received a funding boost from this year’s Legislature of about $14 
million a year, must now decide whether to fund the requested state grant; a 
decision is expected at the end of August.

Of course, for longtime observers of Texas’ criminal justice system, it’s 
precisely this piecemeal approach — a few extra public defenders here, some 
added funding there — that dooms poor defendants to inadequate representation. 
“The only way to do this correctly is to have a statewide system with standards 
that’s properly funded,” said Jeff Blackburn, an Amarillo-based lawyer who 
founded the Innocence Project of Texas. Class-action lawsuits are forcing this 
issue elsewhere: In New York, for example, after a historic settlement with the 
New York Civil Liberties Union, the state will spend $250 million a year on 
indigent services, a burden once shouldered almost entirely by its counties.

It’s likely that no such class-action suit will take place in Texas anytime 
soon — the idea of a statewide public defender system does not have broad 
constituency in a place this large and diverse — so until then, change at the 
state level will require action by the Legislature. And as a practical matter, 
that won’t happen without approval from judges, as former state Sen. Rodney 
Ellis found out 20 years ago. “Judges who will remain nameless still try and 
tell me that the judge picking the lawyer is better,” said Ellis, who is now a 
commissioner for Harris County, “because they pick people who are capable. How 
do you say that with a straight face?”

Even the TIDC is an example of this complicated dynamic. Though by law it has 
the power to set maximum caseloads for lawyers across the state, it has never 
done so. Only the agency’s board can approve such a move, and the board is led 
by Sharon Keller, the presiding judge of the Texas Court of Criminal Appeals. 
“We really do think that people in the local jurisdiction know best,” she 
explained to me. When I mentioned that caseload data shows some lawyers doing 
what the TIDC’s own study says is the work of at least five lawyers, she 
replied, “I don’t even know if that’s wrong. The guidelines are a point of 
reference, and they’re not absolute.”

In the meantime, it may be that lawsuits at the individual level, like 
Willey’s, are the surest way to force incremental change. In April, the Houston 
lawyer saw his efforts resolve quietly when his suit against Ewing ended with a 
settlement and both parties agreed “not to cause or ask others to violate the 
Texas Fair Defense Act.” It wasn’t exactly a bold finish — “Nothing in this 
settlement should be considered as an admission by Judge Ewing of any 
wrongdoing,” read the files — but Willey saw it as a limited victory.

“There’s a federal judgment now, dictating that he must agree to follow the 
law,” he said.

Meanwhile, Harris County had seen its own changes: After a sweep of Democratic 
judges came into office in November, the public defender’s office budget nearly 
doubled, to $21 million a year. Its juvenile division — whose attorneys had 
been receiving an average of 141 cases per year, versus the 300-plus cases per 
year given to some private attorneys — had started receiving enough cases to 
hire three more lawyers. The county was also exploring managed assigned counsel 
for its court appointments, including — in a radical move — a proposal that 
lawyers adhere to TIDC caseload recommendations. (When the print edition of 
Texas Monthly with this story went to press, Harris County’s felony judges had 
not agreed to such a proposal.) “Travis County did it backward,” explained 
chief public defender Bu­nin, who was feeling hopeful about these changes. “You 
need a public defender and then a managed assigned counsel.”

When I last saw Willey, in June, his fundraising for Restoring Justice was 
going so well that he’d hired an executive director; he’d also secured a 
partnership with the Houston Texans. But the change in Harris County judges had 
also spelled change for him. Suddenly, he was getting court appointments in 
Houston and being asked to host fundraisers for friends who were now in the 
judiciary. That month, he’d been given work in the misdemeanor courts of judges 
Genesis Draper and Franklin Bynum, both former public defenders.

Willey was glad for the appointments, of course, but he was also developing a 
nagging sense of discomfort. He showed me a message he’d received from a 
supporter after the news of his settlement with Ewing.

“I hope you didn’t settle because you are going to become like them and forget 
about justice for all and the underserved community,” texted the supporter. “I 
hope you don’t become a good old boy.”

For a minute, Willey stared at his phone. He would save the message, he said. 
So that he wouldn’t forget.

A lawyer responds: Bill Ray explains his workload in Tarrant County

Despite efforts to reach a number of the state’s most overloaded lawyers, few 
agreed to speak for this story. One lawyer who did, however, was Bill Ray, who 
in fiscal 2018 was paid for work on more than 200 felonies, 80 misdemeanors and 
five capital murder cases in and around Tarrant County, home to Fort Worth.

Ray, like many lawyers and judges in Texas, insisted that caseload numbers can 
be misleading. A few of his five capital murder cases have been going on for 
several years, he explained, and the work he gets paid for on these in a given 
year isn’t always intensive. (For instance, he might file one motion for a new 
DNA test.) Not all of the felony cases are work intensive either — many, in 
fact, are probation revocations, in which he represents people accused of 
violating the terms of their probation. “I usually have one appearance for 
those,” he said. “I have a half-hour visit to the jail. That’s it.”

Still, said Ray, “I probably have more cases than many other lawyers could 
handle.” There is no caseload limit in Tarrant County. “I don’t ask for these 
appointments,” he continued. “I tell the judges I’ll do them. I didn’t ask for 
the capital murder case I got last night. I’m gonna do it.”

Tarrant County has no public defender’s office whose outcomes might provide a 
baseline for measuring the work of a court-appointed attorney. But in 2009, one 
probation revocation case involving Ray did raise some eyebrows. A woman named 
Sandra Wilson alleged that, as her lawyer, Ray had ignored clear indications 
that she had severe mental illness and had tried to kill herself. Her 15-year 
prison sentence could have been lowered, she claimed, if Ray had brought up her 
mental illness.

A federal judge agreed, writing that she might not have gone to prison at all 
if Ray had brought up her limitations. The lawyer’s “conduct fell below an 
objective standard of reasonableness, and was outside even the widest range of 
reasonable professional assistance,” wrote the judge. Ray declined to comment 
on this case, noting that the judge’s opinion should have been sealed. (It is 
easy to find online.) Tarrant County judges have continued giving him 
appointments.

When Ray and I spoke in December 2018, he told me that he did not have any 
paying clients; the bulk of his workload was reflected in the TIDC database. 
But he did have side gigs. In fact, as we were talking on the phone, he was on 
his way to see a witness in a case in which the district attorney had recused 
himself. The judge had appointed Ray — not to defend but to prosecute.

Want a public defender? Take it up with the judge

In many Texas counties, interest in creating more public defender’s offices is 
growing. To be effective, however, these public defenders will need both 
resources and strict caseload limits — as in Harris County, where lawyers 
recently decided to take on no more than 128 felonies a year, down from the 
current limit of 150. In Dallas County, by contrast, public defenders can be 
just as overloaded — often more so — than their court-appointed counterparts. 
(In fiscal 2018, more than two dozen public defenders in Dallas each took on 
more than 300 felony cases.)

Crucially, public defense models will also require buy-in from judges, which 
has not always been easy to come by. In Harris County, for instance, juvenile 
public defenders received fewer and fewer appointments over several years, so 
that in 2017 they each had an average load of 140 juvenile cases, which is 
below the office’s imposed limit of 200, while a handful of private attorneys — 
some of whom happened to be generous contributors to judges’ campaign coffers — 
got more than 300. In interviews, two of the county’s juvenile judges insisted 
that they knew nothing of these numbers and that their court coordinators were 
in charge of appointments. But since last fall, when these judges lost their 
reelection bids, juvenile public defenders have been reporting an increase in 
their caseloads.

In the Texas Panhandle, where there’s long been a dearth of qualified lawyers, 
a clinic at Texas Tech University Law School began representing clients from 
across the region in 2012 who had been charged with misdemeanors. For the first 
2 years, it did so at no charge to counties that participated; after that, 
counties had to generally pay only $100 per case. The clinic’s law students 
took 4 misdemeanor cases to trial, winning 2 outright — both of them DWI cases 
— and a 3rd, on theft charges, on appeal. In the fourth case, the client was 
convicted of marijuana possession but was sentenced to time he’d already served 
— a few days — and charged a small fine. He’d been facing a sentence of 6 
months.

The clinic seemed like a success, but it stopped receiving appointments from 
Knox County in 2013 after students won one of the DWI trials. The clinic also 
no longer gets appointments in Garza County, where the theft case was won on 
appeal.

The judge who presides over misdemeanors in Garza County, Lee Norman, said he 
stopped using the clinic because of “scheduling issues.” (Patrick Metze, a law 
professor at Texas Tech, said that the clinic is staffed year-round.) Stan 
Wojcik, the judge who presides over misdemeanor cases in Knox County, said the 
decision to stop using Texas Tech was made before he was elected, but he’s 
upheld it in part due to distance: The clinic, in Lubbock, is more than 100 
miles away. “We do like to use our local attorneys,” he said. “It is easier on 
clients to have someone local at their disposal. It’s better for them, 
actually.”

Both judges insisted that anyone who needs a lawyer in their counties gets one. 
Still, Wojcik acknowledged that more lawyers are needed in the Panhandle. “We 
do have a limited number of attorneys to pick from,” he said. “Someday, we 
might need to rethink our use of Texas Tech.”

The executive director of the clinic, Donnie Yandell, hopes that this will be 
the case. “Commissioners are always concerned about how money is being spent, 
and the taxpayer is always concerned about how money is being spent. We’re 
charging 100 bucks, and we can’t get appointments. As a taxpayer, I’d be 
livid.”

(source: Neena Satija is a former reporter for The Texas Tribune and currently 
a reporter for The Washington Post. This reporting was supported by the 
International Women’s Media Foundation’s Howard G. Buffett Fund for Women 
Journalists----Texas Tribune)