KCBD INVESTIGATES: Justice on a Budget

DAWSON COUNTY, TX (KCBD) - It is a right guaranteed by the sixth amendment to the constitution: everyone is entitled to representation in a criminal prosecution.

And if you cannot afford to hire a lawyer, one will be appointed to represent you. That's called an indigent defense attorney.

Lubbock defense attorney Frank Sellers is challenging the indigent defense system in the 106th Judicial District. The 106th Judicial District is comprised of Garza, Lynn, Dawson and Gaines counties.

Sellers said the contracted indigent defense attorney in the 106th Judicial District is assigned too many cases, preventing him from providing effective assistance of counsel as defined by bar guidelines and case law.

Sellers is now representing Victor Vargas after he said Vargas' court appointed attorney, Artie Aguilar, allegedly dropped the ball.

"What drew me to Victor was he said, 'I had no choice,'" Sellers said.

We asked Sellers if the first time that most indigent defendants in the 106th Judicial District met their attorney was in court room at their plea bargain. Sellers responded, "Most of the time the only time they hear from him is in the courtroom."

Sellers said Aguilar, the contracted indigent defense attorney for the 106th Judicial District, advised Vargas that pleading guilty to a 2012 charge was his only option.

"The first red flag I noted, was there were no notes. There was no letters to the client about when court dates were or he had received discovery," said Sellers.

Sellers said Aguilar is juggling too many cases.

According to the Texas Indigent Defense Commission, in 2012, Aguilar worked 254 felony cases across the four counties involved in his contract. And according to records reported by Aguilar, those 254 felony cases were only 60 percent of his caseload.

The national caseload standards for public defenders is a maximum of 150 felony cases.

The Texas Indigent Defense Commission report says it would take 2.95 attorneys to do the work that Aguilar does if they are following the caseload limitations or the recommendations.

Sellers agreed, "Easily, easily. This appears to be a cost saving measure for the counties. And what they did is they included this index of here's what we would have to pay if we appointed lawyers on every case versus what we paid this single contracted attorney and then shows the cost savings to each county next to it."

Justice budgeted. But at what cost?

"For people who have appointed counsel in the 106th Judicial District, I'm afraid innocence is going overlooked. And that's a big problem for all of us," said Sellers.

But Judge Carter Schildknecht, who is responsible for indigent defense in the 106th judicial district, responded to the Texas Indigent Defense Commission in a letter. She wrote, "I never felt that the contracting attorney's [Artie Aguilar] representation fell below that which the court expects."

And the Judge's feelings will apparently matter more in the future than it has in the past. Schildknecht included this paragraph in her response to the Texas Indigent Defense Commission's report:

Late in 2011, this court felt harassed and pressured by Fiscal Monitor Carol Conner to add additional language about caseload limitations to our contracts. In response to that pressure, I added the language, "the ABA's recommended caseload limitations," to our contracts. That specific language will be removed from future contracts and more appropriate language will be added that requires the judge to monitor caseloads to determine if the quality and effectiveness of representation is compromised in any manner.

That suggests that from now on the only opinion that will matter is Judge Carter Schildknecht's, the architect of the existing system unless the appeals courts make a different determination.

We contacted Judge Schildknecht's office for comment. She did not return our call.

A system, Sellers said, was sold based on cost savings, not justice, "This appears to be a cost saving measure for the counties. And what they did was included this index. Here is what we would have to pay if we appointed different lawyers on every case versus what we paid this single contract attorney and then it shows the cost saving to each county next to it."

Philip Wischkaemper is with the Lubbock Private Defenders Office. One of his duties is to train appointed attorneys in Lubbock County. He said Aguilar is one of many public defenders who are overloaded.

"I have to disagree with Judge Schildknecht but I do believe in this case and probably other cases in the 106th district, the contracting lawyer's conduct fell below the standard," said Wischkaemper.

And when we asked Wischkaemper about Aguilar's caseload he responded, "Doing that many cases, almost a felony case a day, is difficult for anybody. and when that is only 60 percent of your practice, I think it's exponentially more difficult."

Wischkaemper emphasizes that in criminal cases where jail is a possibility, there is a constitutional obligation to provide legal representation for individuals, like Vargas, who cannot afford an attorney.

"This gentleman was sold short based on what I know about the case," said Wischkaemper.

"The counties in the 106th District are going to have to come to grips with the fact that to provide the representation that every indigent defendant deserves, they are going to have to spend a little more money," Sellers said.

We contacted Artie Aguilar for comment, he provided this statement. "In accordance with Texas Rules of Professional Conduct 1.05, I cannot comment or respond regarding any specific questions about Victor Vargas."

Aguilar's representation of any defendant in the 106th Judicial District has not been found inadequate by any court or appeals court as of this date.

Subsequent to our interview Sellers informed us that the Court of Criminal Appeals has refused to hear Vargas' case. Now, Sellers says he will file a writ of habeas corpus in an effort to overturn Vargas' conviction,

Both Sellers and Wischkaemper noted that these four counties are not unique in having an attorney whose case load exceeds recommendations for indigent defendants and that it appears to be a common problem in Texas rural counties.

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