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ALPINE, Texas — Monday mornings, two or six or 10 people, nearly all of them men, stand in the federal courthouse in Alpine. These are the past weekend's arrests, making their initial appearance in this redbrick building in rural West Texas. They are shackled at the wrist, waist and ankle, and their baggy uniforms proclaim where they were detained for the past 24 or 48 hours, most often the orange and white stripes of the Presidio County jail or the simple black of the Brewster County jail. If they don't speak English -- and most of them cannot -- they are fitted with a small black earpiece through which they can hear the translation of the proceedings against them.
One day in June, Ricardo Sanchez, a 19-year-old graduate of Presidio High School, was among them. He wasn't quite sure what to do. He had never been in serious trouble before, but he sure was now: He was charged with making a false statement to law enforcement and alien smuggling, both felonies. When Magistrate Judge Dwight Goains asked whether he could pay for a lawyer, Sanchez requested that the court provide him with one. If possible, he added, he would like it to be Liz Rogers. One of the Border Patrol officers who arrested him, the nice one, had told him about her. She'll take good care of you, he said.
Thanks to the 1963 Supreme Court judgment Gideon v. Wainwright and the 1964 Criminal Justice Act, public defenders are mandated to provide free counsel to indigent defendants in criminal cases.
Sanchez's case turned out to be one of the last to be handled by Rogers, the former chief defender of the Alpine office in the Western District of Texas. Rogers, a 30-year veteran of the public-defender system, was one of four lawyers and two other staff members in the district who took a buyout this August -- a small sample of a recent nationwide exodus from the federal defender system. Rogers was the senior lawyer in her office; by opting for early retirement, she was able to free up some crucial funding for an office that, like many others, is facing an extreme budget crunch at a time when prosecutions are skyrocketing. Her departure means that the other staffers in her office don't have to worry about being laid off -- this year. Rogers hadn't planned on retiring. "I would've kept going on, but I could help my organization (by retiring now), and I was glad to do it," she says. "I don't want to work for us when they're gutting us, when they're nickel-and-diming us, when we can't hire experts we need."
United States criminal court cases are run according to a philosophy of competition: When a strong prosecution team is pitted against an equally strong defense during judicial proceedings, the truth will win out. That’s the theory, at least. Thanks to the 1963 Supreme Court judgment Gideon v. Wainwright and the 1964 Criminal Justice Act, public defenders are mandated to provide free counsel to indigent defendants in criminal cases. These days, about 90 percent of federal criminal defendants rely on court-appointed lawyers, and federal defenders take on the bulk of those cases.
In practice, however, the mere presence of a lawyer hardly guarantees a fair trial. "Even a competent lawyer may not be able to mount an adequate defense against the state, with all its resources, if he has next to nothing for investigation and effectively works for starvation wages," Anthony Lewis, author of the Pulitzer Prize–winning "Gideon's Trumpet," wrote in a 2003 New York Times op-ed. He was primarily talking about state- and county-run programs for indigent defense, which have famously struggled with lack of funding, inadequate training, high caseloads and incompetent counsel. In contrast, the federal public-defenders program has long been considered a success story. Rogers says, "Federal public defenders are some of the best and brightest lawyers in the country. It's the state systems that are underfunded historically ... (Federal defenders) have good training, we have good salaries, which is why we can keep people."
And those resources tend to pay off. On the whole, federal defenders have more success on behalf of indigent defendants than their private-sector counterparts. But today's federal-defender system is, in many ways, worse off than it was a decade ago. In an attempt to cut budgets down to the bone, training programs have been canceled, salaries have been cut, and money for essential services (trial transcripts, expert testimony) has dried up.
The Quail Master
Liz Rogers is not only a public defender; she is also a Texas Master Naturalist, a Quail Master and a member of the Philosophical Society of Texas. She has a husky voice and a no-nonsense manner, and her roots in the area are deep. Her paternal grandmother used to ride sidesaddle around the family ranch in what is now Big Bend National Park, hunting cougars and javelina. Rogers seems to know everyone in town and their families too: "His grandfather was a famous barrel racer," she tells me after one client leaves the room we're in at the Brewster County jail.
Because Rogers and her fellow defenders are responsible for a large section of West Texas -- they often have to visit clients incarcerated in Sierra Blanca, 130 miles from their home office in Alpine -- she tries to see multiple clients during every jail visit.
Reviewing charges with the five clients she'll see today, she switches easily from English to Spanish and compliments one young man on his bleached-blond hair. "Who did that? Maybe I should get my hair done like that," she says. Despite the fact that Rogers has just told him he can expect a 12-month sentence, her client grins.
Sanchez is Rogers' last client of the day. He's a tall, soft-bodied young man whose wire-rim glasses slip down his nose. He grew up in Presidio, a dusty border outpost 90 miles from the nearest hospital and 250 miles from the nearest airport. The small town (pop. 4,394) regularly boasts the highest temperatures in Texas. Not much happens in Presidio. Ojinaga, its Mexican counterpart just across the Rio Grande, is a much larger city, one that Presidio residents regularly visit. But when his friends invited him along on excursions to Mexico, Sanchez always declined. When his made-up excuses wore thin, he finally told his friends the truth: He was undocumented. Not only could he not travel to Mexico; he couldn't really go anywhere outside Presidio, since there are Border Patrol checkpoints set up on all major roads within 100 miles of the border. He'd left the area only on trips playing horn with the school band, since the Border Patrol didn't stop official school vehicles. Once, when he needed a new pair of prescription glasses -- something he couldn't get at home -- a teacher borrowed a school van to drive him to the nearest city. "I know a couple other people who are (undocumented)," he says. "No one really asks. Everyone's known me since I was growing up. They know that I'm just me."
Sanchez tells Rogers that he was brought over illegally by his father when he was 4 and that although his mother lives less than 25 miles away from the house he shares with his father, on the other side of the border, he hasn't seen her in 15 years. He has a number of half brothers and sisters (he’s not sure exactly how many because he's never met them) living in Ojinaga as well.
The previous week, Sanchez tells Rogers, he was waiting on the outskirts of town to give his girlfriend's brother, who was arriving from Mexico, a ride to his mother's house when he was stopped by the Border Patrol. They seemed preoccupied with his GMC Yukon — how did he have such a nice car if he wasn't involved in drugs? Sanchez told them he bought it with the money he'd made working construction over the past three years, jobs that paid $7 to $9 an hour. The agents found no evidence linking Sanchez to drugs, but because he admitted to agreeing to give his girlfriend's brother -- another undocumented immigrant -- a ride, he was charged with alien smuggling, a felony. The agents also claim that Sanchez lied about his immigration status (which he denies), so he faces a second felony charge for lying to law enforcement. They seized his car and put him in handcuffs, and one of them told him about Rogers.
Despite the week he's spent behind bars, a place he says he never imagined he'd end up, Sanchez smiles when Rogers presents him with some good news: The DREAM Act paperwork he'd filed himself nearly a year before, using a school library and help from a teacher, had finally come through. Rogers thinks she might be able to use it to help get his charges dismissed.
In Far West Texas, where green-striped Border Patrol cars are ubiquitous and border policing is one of the largest industries, Rogers and her team of defenders realize that they are playing the role of underdogs. In some ways, it's this sense of injustice that seems to fuel Rogers. "Why do we always have so much money for punishing people who aren't dangerous? And they're telling us to cut our budgets," she says. "It drives me crazy!"
At the same time, caseloads are on the rise. Increasingly, the federal defender program is at risk of resembling its state-run counterparts. "So many state public defender systems are completely dysfunctional and overwhelmed, and there's a huge crisis in the courts because of it. It would be a shame to see the federal system go that same way, which is to say inadequately funded, lack of resources and poorly managed," says Karen Houppert, author of "Chasing Gideon."
The strain on the system is especially evident in defender offices along the U.S.-Mexico border. The Western District of Texas spans 700 miles of that border and is the size of the entire United Kingdom. Defenders in the Western District have the second-highest caseload in the country, second only to Arizona, another border area. While the character of the offenses in these regions hasn't changed over the past decade or so -- "My whole career has been drugs and immigration," Rogers says -- prosecutions have risen dramatically in recent years. In 2005 the four lawyers in the Alpine office closed 317 cases. Last year they handled 1,179.
The Alpine office is a microcosm of a larger trend: In 2002 there were 3,192 prosecutions for illegal entry (a misdemeanor) and 9,337 for illegal re-entry (a felony) nationwide; in 2012 those numbers had skyrocketed to 48,032 and 37,196, respectively. Immigration crimes now outnumber all other federal offenses, including ones related to drugs and violent crimes. Despite the exponential rise in prosecutions, defenders' offices haven't seen a comparable increase in staff; the Alpine office hasn't added a lawyer since 2002.
In 2005 the four lawyers in the Alpine office closed 317 cases. Last year they handled 1,179.
The increase in prosecutions isn't due to an increase in border crossings; in fact, border apprehensions of illegal migrants are at their lowest level in 40 years. The Obama administration has insisted that prosecution efforts are focused on dangerous criminals. The facts on the ground, however, paint a different picture.
"As prosecutions have gone up, the criminal histories of people who've gotten prosecuted have actually gotten much less serious," says Grace Meng, a researcher with Human Rights Watch. From 2002 to 2012, the number of illegal-entry cases in which the defendant had a prior conviction for a serious offense (crimes of violence, for example) rose by 113 percent, and the number of cases in which the defendant had no prior felonies or serious misdemeanor charges rose by a staggering 418 percent. As a consequence, Rogers and her fellow borderland defenders have found themselves defending people who never would have been arrested a decade ago.
"Ten years ago, people brought in on felony illegal-re-entry (charges) would be tougher guys, repeat offenders who'd done a lot of time, some of them with bad prior records," Rogers says. "Now (the people arrested on the same charge) have no criminal record. They're doing the oil-field work in Odessa. They're people who want jobs -- who need jobs -- and there are jobs for them. But instead, they're going to prison."
And these trends don’t show sign of reversing anytime soon. The immigration bill passed by the Senate mandates doubling the size of the border patrol, which would almost certainly result in an even higher number of criminal prosecutions. And the vast majority of those defendants would rely on federal defenders.
Some of the current pressures faced by defenders both in Alpine and nationwideare a result of the sequester. Before the across-the-board budget cuts went into effect on March 1, 2013, there were dire predictions that government employees from air traffic controllers to meat inspectors to FBI agents would be furloughed. In all those cases, congressional action or rejiggered budgets meant that furlough days were avoided; not so for the federal defenders, who faced up to 20 days away from their desks. (Meanwhile, the US attorneys -- the defenders' courtroom opponents -- were not given any furlough days.)
Defenders in the Alpine office were hit with a 10 percent pay cut. Other offices laid off employees, cut back on translation services and turned down complex cases because paying for court transcripts would break their budgets. Some court systems accommodated this new reality by not holding court on furlough Fridays, but even when court wasn't in session, the cases kept piling up. Meanwhile, the prosecutions showed no sign of slowing down. According to The New York Times, the Justice Department didn't merely increase the number of cases brought to court, it also hired new staff. The sequester cuts further exacerbated an existing imbalance: The U.S. attorney's budget is about twice that of the Federal Defenders' Office.
The rise in prosecutions means that, despite their best intentions, defenders often aren't able to devote substantial time to their cases. Chris Carlin, another federal defender in Rogers' office, estimates that his initial meeting with a client accused of a felony immigration offense lasts about 20 minutes and the subsequent review meeting probably clocks in at 30 to 60 minutes. In that time, he'll review the case against the clients, advise them of their rights, explore potential defenses, determine criminal history, calculate the guidelines and determine how the clients want to proceed. (More than 99 percent of cases in the Western District are decided via plea bargain.)
Misdemeanor defendants spend even less time with their lawyers. In an average week, defenders in the Alpine office will take on 15 or 20 new misdemeanor cases. These defendants usually get interviewed as a group in about an hour. In the past eight years, Carlin has found a couple dozen clients who were eligible to apply for US citizenship (usually because one or both parents were citizens). But cursory meetings sometimes mean those questions don’t get asked: a recent study found that only 1 percent of defendants reported that their lawyers asked them about their family backgrounds.
But having federal defenders assigned to misdemeanor cases is the exception, not the rule, along the border. For years, the federal defenders' office in El Paso has passed misdemeanor cases on to private lawyers. There were just too many to handle, and defenders' skill and expertise were better spent on more serious, more complex felony cases. In recent weeks, federal defenders' offices in Laredo and McAllen have also announced that they, too, may no longer have the resources to take on misdemeanor cases. The Alpine office is the only one in the Western District that still handles both felonies and misdemeanors. In rural areas, where there isn't a large pool of private lawyers to choose from, the public defenders are even more essential, according to Rogers. "A lot of us believe that on our worst day, we're better equipped to handle these cases than any private lawyer around here," she says, explaining that along with language skills, defenders have years of experience negotiating drug and immigration cases.
Because the courts are inundated with so many similar cases, Carlin says, there's a pressure to move clients through the system as quickly as possible. "If we had fewer cases and we didn't have a system where the pressure was to get through as many cases as quickly as possible, we might slow it down. We might ask for more consideration of the facts before the court. We might hire experts. We might do some things that would be more beneficial to our clients," he says. "I don't see us doing a lot of those things right now. We don't have the resources to do them, and the cases keep coming in. They're not slowing down."
In one of her last actions as a federal defender, Rogers got the US attorney to agree to a pretrial diversion for Sanchez. In other words, as long as he doesn't come to the attention of law enforcement for the next year, the felony charges against him will be dismissed. If he gets in any trouble at all, however, he'll lose his DREAM Act authorization and may face both criminal prosecution and deportation. Even though he spent a total of three weeks in prison, lost his car and had his immigration status endangered, Sanchez is grateful that things aren't worse for him. Not long after being released, he moved to the oil-field boomtown of Midland, Texas. Thanks to his DREAM Act paperwork, he could finally leave Presidio legally, and Midland, he'd heard, had plenty of high-paying jobs. Not to mention that he didn't want to stick around Presidio, where everyone knew what had happened to him.
These days, he lives with his uncle's family in a trailer decorated with paintings of horses and roosters. He's working as an overnight stock person at Wal-Mart, though he hopes to get a job on an oil rig soon. "I feel OK about it, because I'm still here," Sanchez says. "It's not OK that I still can't go see my mom, but I'm going to go as soon as I can."
As assembly-line prosecutions continue and budgets are cut to the bone, defenders are finding it harder to give cases the individual attention that Rogers gave Sanchez. Now that she has retired, the remaining three lawyers in the Alpine office are splitting her caseload. Carlin currently has 90 open felony cases, the most he's ever had; he'd be comfortable with around half that many. (National standards recommend that one lawyer handle no more than 150 felony cases per year.)
Some experts argue that the current roundup of nonviolent immigration offenders resembles the early years of the drug war. Federal defenders find themselves in the uneasy role of trying to resist assembly-line justice while playing an essential role in the process. "Everybody in my organization will go above and beyond to try and support a case. We just all feel strongly about that," Rogers said, shortly before she announced her retirement. Her office was piled high with papers, and the ringing phone kept interrupting. "They can keep pouring it on us, and we're just going to try to stay afloat."