Hey Marty, I Got Your “Factual Errors”

I wrote last week about The El Paso Times’ newest star in the line-up, Marty Schladen. We talked about the fact that there were details that were left out of reporting on the El Paso County Commissioner’s Court meeting that I thought were important to the news story.



If you don’t remember the piece, scroll down to find “Marty’s Dilema”.

In this piece, Schladen doesn’t mention why PD Clara Hernandez said that the El Paso Times is biased, but says that Hernandez “detailed no factual errors, and she didn’t respond for comment after Monday’s meeting.”

That’s something else he left out of his story, the fact that Hernandez, and I’m paraphrasing here, said her office will only answer questions from the El Paso Times via email because she wants to make sure that her office is accurately quoted.

But nonetheless, he’s right; she didn’t detail any factual errors. Though I think the way he wrote the piece could give the reader the impression that she couldn’t site factual errors.

I’m sure the Public Defender can site factual errors, after all she’s a lawyer, but I thought I’d do a little check of Marty’s facts for myself.

And wudda ya know, I found a couple.

For example, if you go to this article he wrote the Sunday before last, Schladen says, “The public defender's office provides attorneys for about half the defendants who cannot afford them, and it handles many of the felony cases in which forensic testimony could be important. The office contracts with attorneys in private practice to handle the rest.”

Factual Error #1 – The PD Office contracts with private attorneys to handle cases.

Not true.

It was pretty easy for me to find out how the process works and it surprises me that he got this one so wrong.

The Public Defender doesn’t farm out the work to private attorneys.

They have nothing to do with private attorneys being assigned cases at all.

Judges are the ones that determine whether a defendant that can’t afford an attorney of his own is assigned an attorney from the Public Defender’s Office, or is appointed a private attorney. This is accomplished either directly by the court, or through the Court Administration office. That’s run by a guy named Mike Izquierdo.

The attorney submits a voucher, its approved by the judge, and the invoice gets turned in to the Auditor’s Office. At no point in the process does the Public Defender’s Office get involved in contracting with private attorneys.

This process is pretty much common knowledge if you follow El Paso politics. Judge Yahara Lisa Gutierrez made it a campaign issue when she defeated Alfredo Chavez for her seat. It’s commonly referred to as the Attorney Wheel.

I’ve written several pieces about the Attorney Wheel, and if memory serves, the most recent one was regarding the fact that in Judge Chavez’s court there were a couple of prominent El Paso lawyers that made big money off of appointments to that court, Theresa Caballero and Stuart Leeds. In fact in one period of time, Leeds made more than any other attorney in town except one, and the money he made according to county records is an amount more than the salaries of the Medical Examiner and the Public Defender…combined.

The reason we even have a public defender’s office that covers about 50% of the defendants that can’t afford representation is because of a class action lawsuit against El Paso County. In 1987 there was a settlement in a case in which the ACLU represented inmates in County Jail. The inmates maintained that they were sitting in jail for long periods of time without getting a lawyer or when they were appointed a lawyer, they would sometimes not even see the attorney.

In a few extreme cases, the DA had even allegedly declined to press charges and there was no one there to make sure the accused would be released from County Jail.

According to the settlement, the PD Office would eventually handle half of the cases and the other half would be handled by private attorneys through the appointment of a judge.

Factual Error #2 –
Well this one isn’t really as much as a factual error as a mischaracterization.

Schladen refers to a case in which Leeds and Caballero were the attorneys representing the defendant Victor Jimenez. He was on trial last year for murder. The prosecution said the victim was beaten to death. Caballero and Leeds offered an alternate theory, a cocaine overdose.

Shrode allegedly messed up and didn’t save enough of a sample to be adequate for toxicology testing, even though there was a request from the lab that the medical examiner’s office uses.

This is where the debate lies. Schladen writes, “Caballero and Stuart Leeds have been the only defense attorneys to challenge Shrode's credibility based on the false claims he made on his résumé. They and a few other attorneys have had success in contesting Shrode's conclusions.”

I guess that depends on what your definition of success in contesting Shrode’s conclusions looks like. The fact that Schladen uses the word “success” is interesting.

Caballero’s and Leeds’ client was found guilty in that trial.

Yes, the client received the minimum sentence, but the client was found guilty of the crime charged.

Had they had “success”, some might argue that Caballero and Leeds might have won an acquittal for their client. Others might say that even being found guilty of a lesser charge might be considered a “success”.

But alas, Caballero and Leeds weren’t able to manage either. Their client was found guilty of the crime charged. But maybe the defendant thinks the minimum sentence for murder is a consolation prize worth the price of their fee.

The point is, successful impeachment of a witness means the jury did not believe any, or at least some portion of the witness testimony as characterized by a not guilty verdict, or finding guilt of a lesser charge.

Caballero’s and Leed’s client was found guilty.

Despite every effort on the part of Caballero and Leeds, the jury nonetheless believed and affirmed the State's case, finding their client guilty.

Apparently when it came to Shrode’s testimony in that case, there was no finding of “factual errors”.