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When asked if he bypasses The Wheel when assigning indigent defense cases, DA candidate Phil Sorrells said he “follows the plan.” Image courtesy of Facebook

An established criminal defense attorney recently took to Facebook Live to allege that a former criminal court judge assigned court-appointed attorneys to law firms owned by the judge’s personal friends. The lawyers, according to Tarrant County’s website, are supposed to be assigned randomly through a computerized system commonly referred to as The Wheel.

Don Hase said judges playing favorites when assigning lawyers to indigent defendants, who couldn’t otherwise afford legal counsel, creates an “ethical dilemma.”

Attorneys who do not have “a lot of clout,” he said, would not want to upset a presiding judge and would likely reason, “I’m going to go along to get along.”

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The U.S. Supreme Court ruled in 1963 that defendants have a constitutional right to legal counsel. In a criminal justice system that disproportionately targets poor and marginalized communities, that means that many defendants require public assistance to afford an attorney. Judges who abuse public funds to ingratiate personal friends undermine the credibility and quality of those legal assignments, so many states like Texas have passed laws that provide guidelines on how indigent defense cases should be assigned.

Hase named Phil Sorrells, who is running against Republican Matt Krause for district attorney in this month’s primary runoff, and Trent Loftin, who recently won the Republican nomination for the County Criminal Court No. 10 bench, in his public interviews. Hase alleges that Sorrells skirted The Wheel to bypass qualified indigent defense attorneys in favor of giving the assignments to Loftin.

Based on one 2006 state task force report, most indigent defense attorneys in County Criminal Court No. 10, where Sorrells presided at the time, were appointed by Sorrells and not The Wheel.

That pattern, based on my review of the report, was common throughout the other nine courts that year. In 2007, our magazine singled out Sorrells for assigning a disproportionate number of indigent defense assignments to Loftin. Hase alleges that, in the years following, while Tarrant County’s other criminal judges increasingly relied on The Wheel as mandated by state law, Sorrells stuck to his way of doing things.

Sorrells rejected allegations that he uses his court to pull favors for his friends who practice law. He told me in a phone interview that he strictly follows the county court’s plan to ensure that quality attorneys are appointed by county court administrators in a timely and fair manner.

After consulting the list of attorneys eligible for indigent defense assignments, he said, “you get the appointment, and then you go to the bottom and come back up,” Sorrells said. “It rotates through. Different lawyers are going to have appointments that are high in one year and low in one year. When [Loftin’s] name comes up on The Wheel, we’ll appoint him.”

Hase — who lost in the recent primary to Loftin for Criminal Court No. 10 — alleges that the insider dealing between Sorrells and Loftin continued through 2021. Allegedly taking advantage of the indigent defense system isn’t the only accusation of misconduct currently levied at Loftin. Two whistleblowers provided me with documents that appear to show Loftin violated Texas’ Code of Judicial Conduct. In April after winning the Republican primary for Criminal Court No. 10, Loftin signed an open letter endorsing Sorrells’ bid for DA. State laws bar judicial candidates from authorizing the use of their name to endorse political candidates of any kind.

Loftin said in an email that he never authorized the use of his name for political endorsements.

“I did not give anyone consent for anyone to use my name, and that is not my signature,” he said, referring to a copy of the letter in question that I forwarded to him. “I did not endorse anyone in any race.”

Personal favors when assigning indigent defense counsel were supposed to end with the state legislature’s passage of the Fair Defense Act in 2001. The law requires criminal courts across the Lone Star State to adopt procedures for providing promptly appointed attorneys to indigent defendants. Among other provisions, the law was drafted to ensure that indigent cases are assigned in a way that is “fair, neutral, and non-discriminatory.” The Fair Defense Act has a caveat, though, that allows judges to write in indigent defense lawyers for “good cause” issues. One example would be a Spanish-speaking attorney being assigned to a defendant who speaks only Spanish.

According to the social justice-minded nonprofit Texas Appleseed, “Prior to the Texas Fair Defense Act, low-income defendants in some parts of Texas were languishing in jail for weeks or months before getting a court-appointed attorney. In some cases, the appointed attorneys were grossly unqualified to handle the cases.”

When reached for comment, Hase said everything he has to say is on Facebook.

“The Fair Defense Act does not have real teeth, which is why Phil Sorrells gets away with what he does,” Hase said on the social network. “We don’t want situations where lawyers are beholden to the judge. The Wheel ought to be used 95% of the time.”

The Texas Indigent Defense Commission (TIDC), the governmental group tasked with overseeing and improving public defense throughout the state, maintains figures of indigent defense assignments. Based on my review of TIDC’s website, between 2014 and 2021, Loftin’s assignments from Sorrells’ court, Tarrant County Criminal Court No. 10, far exceeded Loftin’s indigent defense caseloads in the county’s nine other criminal courts. Loftin’s disproportionate number of assignments suggests that Sorrells was bypassing The Wheel to give assignments to his friend. If Sorrells evenly used The Wheel, Loftin’s appointments would track more closely with those of the nine other criminal courts.

In 2014, which is the first year TIDC began tracking statewide data, Sorrells assigned 28 public defense cases to Loftin while the nine other county court judges assigned Loftin an average of seven. The following year, Sorrells gave Loftin 35 court-appointed cases while the majority of county criminal courts allotted two or three public defense cases to him. Sorrells’ County Court No. 10 assigned an average total of 1,200 indigent defense cases both years. Loftin represented 19 indigent defendants from No. 10 in 2016 and 35 in 2017. From there, Sorrells’ assignments to Loftin dwindled with the exception of one spike in 2020: two (2018), 10 (2019), 23 (2020), eight (2021).

When I asked Sorrells if he has ever gone outside The Wheel to appoint his friend Loftin, the DA candidate dodged the question.

“I follow the plan,” Sorrells said. “We set up a plan. I follow the plan.”

I followed that question by asking if “the plan” allows judges to bypass The Wheel.

“It’s not as simple as you’re putting it there,” he replied. “The county system is put together to ensure that qualified attorneys are appointed.”

Loftin said that he is fully qualified and eligible to serve on The Wheel across multiple court systems: misdemeanor, felony, juvenile, and capital murder cases. Loftin did not directly address his disproportionally high number of assignments from Sorrells, but he maintains that his overall appointments are relatively low compared to other Tarrant County lawyers. Based on my review of TIDC’s website, his assertion is correct. On the upper end, several local attorneys were given 200 to 300 cases annually in recent years while others received zero, meaning perhaps Sorrells isn’t the only judge allegedly playing favorites. Loftin’s numbers rank him in the lower half of indigent defense assignments on average.

Tarrant County staffers reimburse indigent defense lawyers $50-300 per hour for misdemeanor cases and $600 per trial day for felony cases plus initial appointment fees that range from $200 to $300. For legal counsel who can handle near-daily caseloads, those annual earnings can easily exceed six figures per year. Tarrant County spent $15,951,307.71 on indigent defense cases in 2021, based on TIDC data. Tarrant County funds indigent cases on par with other large Texas counties, but the Lone Star State regularly falls within the bottom 10% of states when it comes to public spending on indigent defense.

Tarrant County’s website details county policies and procedures for assigning indigent defendants who meet set income guidelines — the defendant’s annual income must be at or 25% above federal poverty guidelines for misdemeanor cases and, for felonies, at or below living wage guidelines set by the Massachusetts Institute of Technology.

TIDC executive director Geoffrey Burkhart told me that, overall, Texas’ criminal judges have increased compliance with the Fair Defense Act over the past two decades, although there is more work to be done.

“One of the goals [of the law] was to remove impropriety and even the appearance of impropriety,” he continued. “You can achieve that through an indigent defense coordinator, managed assigned counsel, public defender’s office, or through a wheel — if the wheel is fairly used.”

Tarrant County’s criminal courts rely on the wheel system, but many counties across the state have begun handling indigent defense cases using public defender offices or managed assigned counsel systems that assign attorneys, provide them with access to investigators and other resources, and ensure that clients are adequately defended.

Loftin, who is running unopposed ahead of the November midterms, said Tarrant County’s misdemeanor judges are considering setting a flat fee for indigent cases instead of an hourly rate.

“It will be interesting to see if this new process works,” he said.

Loftin noted that Tarrant County lacks the types of public defender’s offices that serve Dallas, Harris, and other large Texas counties.

“In the end of the day, the most important aspect is to make sure the individuals needing an attorney have their constitutional rights protected,” Loftin said.

In 2020, TIDC staffers performed a fiscal review of Tarrant County that included anonymous feedback by local attorneys. Most Tarrant County defense attorneys, based on the report, said judges cut pay for attorneys who requested legal experts for defendants. Several lawyers said they were kicked off The Wheel without explanation.

“It appears to be done in secret,” one attorney wrote. “I know of many attorneys who have been removed from the felony court appointment list and have no idea why they were removed, and no one provides a reason or feedback.”

Judges have limited control of other budgets, so they act as budget hawks on the only entity they can control — indigent defense, another lawyer wrote.

“For this reason, most seasoned defense attorneys do less and less indigent defense,” the attorney continued. “It’s not worth it.”

Last year, Tarrant County’s attorneys weighed in on Sorrells’ performance during his last year in office. Lawyers with the Tarrant County Bar Association ranked his County Criminal Court No. 10 last out of 10 in the category of “follows the law.” Sorrells said he has not seen the poll and so cannot comment on the vote.

Tarrant County’s primary runoff is Tuesday, May 24. Sorrells said his campaign is focused on supporting the police, enforcing immigration laws, and putting the community first.

“I have a 25-year record of being a tough and fair judge,” he said.

This article has been updated to correct figures related to the average number of cases assigned by County Criminal Court No. 10.

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