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November / December 2011
Volume 23, Number 6

Making a Case for Itself

Capital Public Defender Office Expands and Expands and Expands

By Maria Sprow

When 50-year-old Randal Lee Stephens was indicted for the murders of a Reeves County couple in May 2008, he appeared to be perfect for prosecution: the murders had been brutal. He had confessed to stabbing two people to death. He was a sex offender. And, he seemed to want execution.

Like every capital murder, it was first and foremost a tragedy where justice needed to be served. But justice, especially when it results in execution, is expensive, and taxpayers must pay not only for the prosecution, but also for the defense and the appeal – something that could have cost Reeves County taxpayers hundreds of thousands of dollars.

Fortunately, Reeves County is located in the seventh judicial region, and its commissioners court had signed on to be a member of the West Texas Regional Public Defender for Capital Cases, which billed itself as a type of “murder insurance.” The idea, born in 2007 by Lubbock County and supported by the then-named Task Force on Indigent Defense, was to create a regional defense office for capital cases for the rural and mid-sized Panhandle and West Texas counties, where attorneys qualified to represent defendants in capital cases are hard to come by. The regional office would be funded first by a state grant and then by a cost-share plan between all the participating counties; the actual formula takes into consideration the county’s total population and 10-year history of capital cases. Counties across the two regions jumped on board, with 77 out of 85 eligible counties participating.

Because of the office and the payment formula established by Lubbock County, Reeves County knew how much the defense for a capital case would cost them, and had already budgeted for the expense. So Stephens’ team of attorneys, investigators and mitigation specialists had free rein to work tirelessly to keep him from the death penalty. They reviewed his history, his mental health, his motives.

“Stephens was really kind of a volunteer. He really kind of wanted the death penalty I think and had written a number of letters to the prosecuting attorney indicating that,” said Chief Public Defender Jack Stoffregen, who heads the Regional Public Defender for Capital Cases office, adding that when the office first took on the case, Stephens did not want to plea. “The people assigned to the case were able to spend a lot of face time with him, literally hundreds of hours sitting in a cell with him, talking to him, getting to know him, getting to know what made him tick, until they were able, by the amount of time they spent, to develop a good trusting relationship with him. They made him feel that his life had some value, and it was really the first time he had ever felt that way in his entire life.”

In the end, Stephens plead guilty and received Life Without Parole for his crimes.

Spending so much time and resources convincing a confessed murderer that his life has value may not seem like justice to many, but Stoffregen believes the plea was justice in action. It served the State, the victims and the defendant, he said.

“Had we not been able to work that case out and had it gone to trial, had our client been sentenced to death, not only do you have the cost of the trial itself, but you also have the automatic appeal, which can be pretty expensive, and you had some additional costs.

By working it out with a guilty plea, we waived our right to appeal, so there is no appeal, and the case is disposed of without the necessity of a trial, which is advantageous to everybody,” Stoffregen said. “(Stephens) was extremely happy with the outcome at the end of it, and I think the prosecutor was happy with it, and I know we were. I think it was the advantage of having an office like this that got that case disposed of to everyone’s satisfaction.”

The Stephens case is not an anomaly for the Regional Public Defender for Capital Cases office. Since opening its doors four years ago, the office has been appointed to 40 cases from a total of 19 different counties and, as of Sept. 30, disposed of 29 cases. Only one of those cases resulted in a death sentence. Many of the others were resolved via guilty pleas, or when prosecutors withdrew the death penalty as a possible punishment, meaning that the Public Defender’s office was no longer responsible for the defense. One case resulted in a not guilty verdict by reason of insanity.

As of Sept. 30, the office had 11 cases still pending, and its successes have been hailed and noted across the state.

In fact, early on, the office raised the eyebrows of county judges and commissioners whose counties were outside of the Panhandle and West Texas and were therefore ineligible for the program.

“When I first took office, I was familiar with the program being out in West Texas, and I had talked to some judges around here about trying to start our own program,” said Limestone County Judge Daniel Burkeen, whose county is in the second administrative judicial region, which covers parts of East and Central Texas. “We had seen what it costs for a death penalty case that other counties had gone through. It’s a phenomenal cost and it’s one of those things that, for a rural county, there is no way you can really budget for that because it may not happen for 10 years. But you know it will happen eventually, and when it hits, you’ve got to pay for it. So it just makes sense to pool our money in a program like the Capital Public Defender’s program.”

Fortunately for the counties in want of the program, the office did start to expand, first in 2010 to the fourth, fifth and sixth administrative judicial regions covering South and Southwest Texas and then again in October to the second and third administrative judicial regions, which includes Limestone County. And the office has high hopes of opening its doors to the last regions standing, the first and eighth up in North and East Texas, by 2013.

Though counties are given a one-year trial-type period in which they are eligible for the services but do not have to agree to become a participating member, Limestone County signed its inter-local agreement for participation at the first opportunity, Burkeen said.

“I think it’s been probably 20 years since we’ve had a capital case.

We haven’t had one recently, but we’ve got about eight murder cases pending right now, one or two of which may be death penalty cases, they haven’t made that decision yet, but we’ve just had a lot of murder cases, so it’s been worrisome for us not knowing when one might happen and it’s one of those things that you can’t control if something happens within your boundaries,” Burkeen said, adding that participation in the office will eventually cost the county around $20,000 a year. “That’s good insurance for a good capital murder defense program.”

The one-year trial period means that counties in the fourth, fifth and sixth judicial regions had until Sept. 30 to sign on to the program, though there is no official deadline for participation. Counties can sign on at any time, but they must pay dues for any years missed. Counties who are not in the one-year trial program and have not yet made a decision about signing on carry the risk that a capital murder case is filed without the public defender program’s insurance.

“The only provision is that if a county joins after a period of time has lapsed, they have to pay all of the back premiums, for lack of a better term. Their fees to participate are are not waived, so they have to go back and make a lump sum payment of all the years that they have missed,” Stoffregen said. “If they were to pick up a case before they had paid and signed the inter-local agreement, we would not cover that case, and that has happened in a number of instances.”

As of the Sept. 30 deadline, 34 of the eligible 52 counties in the fourth, fifth and sixth regions had signed inter-local agreements, Stoffregen said, leaving 18 counties vulnerable. Counties

ions have until Sept. 30, 2012 to sign their interlocal agreements. If a capital case happens before that date and before the inter-local agreement has been signed, the regional office will take the case on as long as the county signs the agreement. There are 55 eligible counties in those regions, and already, 18 counties have signed inter-local agreements, Stoffregen said, adding that he believes those numbers show a lot of faith in the office and its necessity.

“It’s a really good number. We’ve never had a county sign an interlocal agreement prior to the start date before, but as we have traveled around the state, the word has spread,” Stoffregen said. “The first year is free, so all 55 counties are in the program right now and need to know that, and obviously if they were to pick up a capital case now, we would cover it as soon as they sign an inter-local agreement, so they haven’t waived anything by not signing at this point, but if they wanted us to handle one, they would have to sign up and agree to participate in the program as we go down the road.”

While many other counties have bought in to the office, Lubbock County has maintained its leadership over the office.

“This is the only program in the country that is structured like this,” said Jim Bethke, the executive director of the Texas Indigent Defense Commission, which has helped fund the office and its expansion. “This is the only program that I am aware of that is locally controlled and locally run. We tried to expand it in a thoughtful and meaningful manner without delay or high levels of bureaucracy and by working with what staff we have and working with Lubbock County. This really would not have happened but for the leadership of the Lubbock County commissioners court.”

The Regional Public Defender attorneys, investigators and mitigation specialists work in satellite offices set up in the state’s different regions, but its budget does not include funding for rent or utilities. Still, in its original seventh and ninth districts, Stoffregen said counties were competing to house one of its satellite offices, and they easily grabbed space in Lubbock, Midland and Amarillo. When it opened in the fourth, fifth and sixth regions, Uvalde and Kleberg counties both offered up space for offices. But in the second and third regions, the office is still looking for room.

“Any cases that come up in that region right now, we will be staffing those cases from existing offices and working at a fairly long distance until we can get open,” Stoffregen said. Though the office still hasn’t determined exactly how much staff it will need to hire for the new regions and won’t know until inter-local agreements have been signed, the office has budgeted a payroll of $362,000 for about six employees. “We’re bringing up to six families into the community that will hopefully buy homes, pay taxes and spend their money there and go to school there and be good citizens. So that is really a pretty good benefit.” Even when the office goes statewide, not all counties will be eligible to join the program, and some that are eligible have actively opted out. The 14 counties that had a population of more than 300,000 when the office was created in 2007 are ineligible, mostly because those counties generally have a pool of qualified defense attorneys who are interested in capital cases, but also because opening its doors to large counties would have presented too much of a burden on the office, Stoffregen said.

Counties that have opted out have generally done so because the county doesn’t have a history of having any capital cases and commissioners do not believe they will need the office.

But some counties have found the office too expensive, due in part to the formula used to generate each county’s premium. The formula takes into account each county’s 10-year history of death penalty cases, and some counties just became eligible for the office too late.

That’s the case in Burleson County, said County Judge Mike Sutherland. Burleson County is located in the state’s second judicial region, meaning that it just became eligible to participate in October. But the county had just gone through two costly capital murder cases in which it had spent a devastating $300,000 on special prosecution and defense costs, and the two cases skewed the county’s participation costs to four times the premiums required for other similar-sized counties, Sutherland said, adding that he considers the two recent capital cases an anomaly, and not a trend.

One case was the retrial of the exonerated Anthony Graves, who was sentenced to death in 1994 for killing six Somerville residents, including five minors. A federal judge overturned the conviction in 2006 after co-defendant Robert Carter changed his testimony against Graves prior to his own execution. Carter said he acted alone.

In the end, the county wound up paying for a special prosecutor for the case. The prosecutor eventually decided not to retry the case, but only after the county had spent hundreds of thousands of dollars gearing up for a trial. The other case was that of Myron Phillips, who plead guilty in June 2010 to shooting his stepchildren’s grandfather and father, 62-year-old David Weichert and his 35-year-old son, DJ, outside their home in 2008. Phillips received Life Without Parole as part of his plea.

Prior to those two cases, Sutherland said it had been “a century” since the county had last seen a capital murder case.

“They were calculating the cost based on the fact that we’ve had two capital cases, even though you look at every other county that has the population size of ours and their cost was going to be one-fourth the cost of what ours was going to be,” Sutherland said, adding that the county probably would have made a different decision if it was getting the same bargain as other counties. “If it had been down in the same neighborhood as the other counties, then I could see it being worth it.

But the auditor and myself, we sat down and added it all up and it was going to get back up close to $100,000 (over the course of four years). … Economically, when you put the pencil to it, it just didn’t add up.”

Of course, Burleson County has until next September to make its final decision.

“If I get hit with another one this year, right off the bat, then, maybe so,” Sutherland said.