RACIAL JUSTICE THEN AND NOW: The Origins and Legacy of TRLA’s Public Defender Division
*AS OF OCTOBER 1, 2023 - the Public Defender Division has split off as a new entity, Texas RioGrande Public Defender (TRPD).*
fall 2021 justice in action
The unequal measures of justice in South Texas lay bare and raw long before violence erupted in 1971. A street protest, and law enforcement response, only deepened existing wounds.
David Hall, right, speaks to Efrain Fernandez in the courtroom, from the 1971 ABC News documentary “Strangers In Their Own Land.”
Shortly after 20-year-old Alfonso Flores stepped out of a barbershop in his hometown of Pharr, Texas, the cycle would start anew.
Outside the barbershop, the crowd gathered by protest organizer Efrain Hernandez had swelled to about 300 people, all railing against the longstanding and well-documented history of police brutality toward Mexican-American residents. They were met by about 100 law enforcement officers, many of whom Pharr officials had marshaled from neighboring cities.
By the time Flores left Ramos’ Hair Styling Center, firefighters had already turned their hoses on Fernandez and the demonstrators. Soon, tear gas and bullets flew into the crowd. Just minutes after Flores walked onto the street, a deputy sheriff shot him in the head. He died the next day.
There was no justice for Flores. A Hidalgo County jury acquitted the deputy sheriff charged with shooting him. And for his efforts to organize a peaceful protest against ongoing injustice, Fernandez was charged with the destruction of property and “engaging in a riot.”
“I quickly perceived that Mexican-Americans were woefully underrepresented, and traditionally it had been that way.”
But justice would finally arrive for Fernandez and dozens of his fellow protestors, however — and that fight would launch a five-decade journey to ensure that the most disadvantaged defendants get the robust legal defense that the American justice system promises but rarely delivers.
Protest outside Pharr police station, 1971. The sign refers to the then-mayor and police chief.
TIMELINE
1971: Pharr police riot
1971: Protest organizer Efrain Fernandez acquitted
1977: Landmark case Castañeda v. Partida, 430 U.S. 482 (1977), holds the grand jury system in Hidalgo County is unconstitutional
2001: Texas Fair Defense Act passed to overhaul and help fund a system of representation for indigent defendants
2006: TRLA first starts representing criminal defendants
2007: Willacy County public defender office opens
2009: Bee County Regional Public Defender Office opens, serving three counties
2018: Public Defender program operates four regional offices covering the counties of Bee, Duval, Goliad, Jim Hogg, Lavaca, Live Oak, McMullen, Refugio, Starr, and Willacy
2019: In fiscal 2019, TRLA public defenders handle 2,417 cases, including 1,385 misdemeanors, 989 felonies, and 40 juvenile defendants
2020: TRLA adds public defender services for Atascosa, Frio, Karnes, and Wilson
The protest, violence, and criminal charges had caught the attention of a young lawyer in the Rio Grande Valley named David Hall, the first executive director of TRLA. Hall stepped forward to represent Fernandez and dozens of protestors charged with criminal offenses. The ACLU joined the case, and prominent criminal defense attorney Warren Burnett came on board to help win an acquittal for Fernandez.
Inspired by Burnett's courtroom adage about needing “a friend on the jury and an error on the court,” Hall began researching how grand juries were chosen in Hidalgo County. He soon found that Mexican-Americans were woefully underrepresented and always had been, Hall said in an interview this year.
As was the custom at the time, Hidalgo County relied on a "key man" selection process, where judges named a commissioner to recruit a panel of grand jurors. Often called the "pick-a-pal" system, the commissioner's friends and networks served on the grand juries that decided to indict individuals. That meant Anglos and a handful of wealthier Mexican-Americans dominated Hidalgo County’s grand juries.
Hall's research would prove pivotal in the landmark Partida case he won at the U.S. Supreme Court in 1977. Based on his statistical evidence, the justices held that the method of selecting grand juries in Hidalgo County in the 1960s and 1970s discriminated against Mexican-Americans.
Despite the ruling, Texas would not end the “pick-a-pal” system of selecting grand jurors until 2015, when the Legislature passed a law that requires judges to seat jurors by random selection.
By then – in fact, even before the court issued its Partida ruling in 1977 – Hall had joined TRLA, which worked solely on civil cases.
"That case was my last hurrah on the criminal docket, but I always wanted the flexibility of working both sides of the docket," Hall said. "It became really apparent to me back in those early days (at TRLA) that … if you were going to advocate on behalf of a community of poor people, you had to advocate in all the courtrooms, civil and criminal."
That need was especially acute in rural counties, which comprise much of TRLA's 68-county service area.
Texas is one of a handful of states that still relies mostly upon court-appointed or court-assigned private attorneys to represent indigent defendants. Court-appointed attorneys often get paid at a less-than-market rate – and defendants are the ones who suffer.
TRLA launched its Public Defender Division in 2006 to fix that imbalance and ensure access to and equity of representation for anyone accused of a crime.
Before it could do that, however, it needed yet another change in Texas policy. Fueled in part by Hall’s efforts, the Texas Legislature passed the 2001 Fair Defense Act, which helped reduce the corruption and cronyism that had long pervaded the appointment of private attorneys to indigents charged with crimes.
Critically, it also created the Texas Indigent Defense Commission (TIDC) to help counties fund public defenders. TRLA's Regional Public Defender Division has relied on that funding to alter the landscape for low-income people who can't afford a criminal defense attorney.
In South Texas, where public defender offices did not even exist before the TIDC was founded, TRLA now provides criminal defense for impoverished people in 14 counties. It’s a crucial service for the area, where fewer households have health insurance and county-level poverty rates exceed both the Texas and nationwide rates, in some cases by large margins.
“What is important in this data is that all of these metrics have an impact on the delivery of public defender services,” according to a 2020 audit of the division conducted by the National Association for Public Defense (NAPD). “TRLA PD is providing public defender services to some of the poorest places in Texas. The need is great.”
Abner Burnett agrees. The son of Warren Burnett, with whom Hall defended Fernandez and other Pharr protestors, Abner has a unique perspective on how critical these services were then and are now.
"In the counties where we're serving, the percentage of indigent criminal defendants who actually got a court-appointed attorney was minuscule," said Burnett, the director of TRLA's Regional Public Defender Division. "Now virtually everyone who asks for and qualifies for an attorney gets one."
According to the NAPD audit, those efforts have resulted in less jail time, with cases being “vigorously investigated, defended, and tried when necessary.” The report noted that the PD division’s advocacy also extends, crucially, to misdemeanor charges – the types of accusations that, for decades, have crushed indigent defendants under a cascade of fines and warrants.
More than 50 years ago, that was the twisted nature of the criminal justice system for indigent defendants. The likes of Alfonso Flores received no justice and, too often, were forgotten by history.
Not enough has changed. The details of Flores’ death echo in the recent instances of police violence. Familiar, too, are massive protests against police abuse and racial injustice, often accompanied by unjust prosecutions like that of Efrain Fernandez.
Ultimately, though, Hall's work on Fernandez's acquittal led to something more than a favorable ruling. It planted the seeds for TRLA's public defender program, which has helped tens of thousands of indigent defendants get the highest-quality representation — beyond what they are constitutionally entitled to.