It was by accident in 2012 that the Texas Department of Public Safety stumbled upon a troubling discovery affecting the validity of nearly 5,000 drug cases across Texas: One of its analysts at a Houston crime lab had intentionally falsified lab results.
Soon, after further review of the analyst's full body of work since 2006, DPS cautioned district attorneys across the state that nearly 4,900 cases — all of those that the analyst, Jonathan Salvador, had tested — could be in jeopardy due to his fabrications. Four hundred of them were in Harris County, leading the district attorney's office to ask the Harris County Public Defender's Office to help represent potentially hundreds of defendants in new trials, according to a 2014 memo obtained by the Houston Press.
Two years later, however, because of a dispute that arose between State District Judge Mary Lou Keel and the public defender's office about how, or even if, public defenders were allowed to help those 400 people get new trials, Keel has since then refused to work with any public defenders. In at least two years, she has appointed only one in her court. And today, she accuses the public defender's office of lying to her, saying they were not trying to help those defendants in the interest of justice, but only to “make themselves look good.”
“They think, 'oh, we're doing all this great work. We're gonna be the hero,'” says Keel, who is running in the upcoming election for the Texas Criminal Court of Appeals, the state's highest criminal appellate court. “They certainly wanted to take on all these easy cases — it makes their stats look good. If they can get a bunch of these slam-dunk writs where almost everybody's going to be granted relief, yeah, they got carried away — but not out of the goodness of their heart.”
It is an accusation that the public defender's office strongly denies, saying that Keel blew a simple misunderstanding out of proportion, severing their otherwise productive relationship (even Keel says she used to be their "best customer"). “We were trying to make sure that justice was done, so I don't know how that's self-serving,” said Chief Public Defender Alex Bunin. “And it wasn't really our idea. If you talk to anyone at the DA's office, they'll say they asked us to do this.”
The Texas Court of Criminal Appeals started granting relief and reversing convictions in cases arising out of the Jonathan Salvador snafu in 2013. It wasn't long after that Harris County found itself entangled in yet another crime lab scandal affecting a huge amount of convictions — and again in need of help from public defenders. Due to massive backlogs in drug testing at the former Houston Police Department crime lab, hundreds of defendants pleaded guilty to drug possession in order to get out of jail — even though months or even years later, the lab results finally came back as negative, proving their innocence. As of this summer, nearly 300 people have been found wrongfully convicted (so far).
Here's where the public defender's office came in, in both of these scandals, according to the 2014 memo written by Bunin: Normally, in order to obtain post-conviction relief, judges must appoint attorneys on a case-by-case basis, reviewing the facts of each individually. But because of the magnitude of the scandals, with every case having similar defects, Bunin says the district attorney asked them to step in and represent the defendants in blanket fashion, since prosecutors had already agreed in most cases to grant relief. Plus, Bunin wrote in the memo, if they didn't reach out to the defendants to offer assistance, few would "have the wherewithal to contact the court and ask for representation" themselves. (We asked DA's office spokesman Jeff McShan to verify Bunin's account of the DA's office's actions, but he did not respond.)
According to Keel, however, public defender Bob Wicoff, who specializes in post-conviction writs, took the DA's office's instructions a step too far, overstepping her authority as a judge.
After the DA's office began directing defendants from the Salvador batch his way, Wicoff got in touch with the defendants and, believing they were due relief, started filing writs of habeas corpus in various courts, including Keel's. Keel's problem: Wicoff never got her permission or official appointment before filing them, and she never determined whether the defendants were indigent first. (Public defenders generally only represent poor defendants after a judge's finding of indigence.)
“There was no authority whatsoever for them to take those cases,” Keel says. “And this is the thing that kills me: They tried to double-talk their way out of it and pretend like there was some arrangement that gave them the authority. And they have still not come clean on it.”
Today, Wicoff says that he regrets how the dispute unfolded. Firstly, he says, he misunderstood Judge Keel's primary complaint the first time she confronted him. Even though no other judges appeared to have a problem with public defenders proactively hopping on these potential wrongful convictions and filing the writs, Wicoff says, in retrospect, he wishes he would have simply asked Keel before filing them. After Keel's complaint, Wicoff says he and other public defenders stopped filing writs without official appointment.
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Still, Wicoff maintains that the idea that he would do this for personal gain is a wrong assumption on Keel's part, and that he was only assisting the potentially wrongfully convicted defendants because, well, the DA's office put down his name in its letters to them.
“I respected Judge Keel for many years, and it simply pains me that she has reacted like this," Wicoff says. "She was under some assumption that this would solidify our standing in the criminal justice community, or it would work to our benefit. That never entered my mind. What entered my mind was I was happy to help.”
Keel is running on the Republican ticket for Place 2 on the Court of Criminal Appeals. She hopes to replace Democratic incumbent Larry Meyers, the only Democrat on the high court's bench and only Democrat in Texas's 29 statewide elected offices. Asked if she had anything to say about her race, she said, "If I get elected to the Court of Criminal Appeals, the PD won't have to worry anymore about me catching them."
And the public defenders will probably get their appointments back.