Sluggish Travis County court delays justice for victims, defendants

Investigations

Stuffed with Christmas leftovers, Ebony Sheppard walked from her brother’s east Austin apartment the night of Dec. 26, 2017. It was cold and drizzling, and she insisted on getting her car warmed up and pulled near the door for her mother and 4-year-old son.

Minutes later, as her family waited inside, they heard a “big pow,” said Sheppard’s mother, Janet Harris. She ran outside and saw her 30-year-old daughter lying on the wet concrete near her car.

“She sounded like she was snoring, like she was asleep,” Harris said. “Blood was spurting from her mouth and nose.”

Sheppard, shot in the head, died an hour later at Dell Seton Medical Center.

Xavier Lewis. (Austin Police Department)

Police said Xavier Oneal Lewis, 19 years old at the time, confessed to being high on drugs and shooting Sheppard during an attempted robbery. Lewis was already out on bond, after being charged with robbing a Sonic in north Austin at gunpoint and shooting a store manager in the leg more than a year before.

Harris says her despair over her daughter’s murder is made worse by the thought that perhaps the wheels of justice in Travis County could have turned faster and prevented it from happening. Perhaps, if Lewis’ earlier September 2016 felony case for aggravated robbery with a deadly weapon concluded in fewer than 15 months, he wouldn’t have been able to go on his alleged Christmas crime spree.

“Why did he have to shoot her?” Harris asked.

Lewis’ case is just one of thousands grinding their way through a Travis County felony court system that is, according to a National Center for State Courts analysis, operating well below maximum efficiency.

A ‘C-minus’ efficiency rating

Using data KXAN obtained from the Travis County District Clerk’s office, the NCSC applied its nationally-recognized metrics to check felony court efficiency. Overall, NCSC’s analysis found Travis County operates below average compared to similarly-sized courts in the United States.

“I would say C-minus,” said Brian Ostrom, a principal court research consultant at NCSC, about the age of Travis County’s pending felony caseload.

Ostrom, who says he has been called a generous grader, said the “good news” is an analysis of pending cases shows marked improvement in the past two years.

“People really want just a few things from their courts. They would like the outcomes to be fair, timely and cost-effective,” Ostrom said. “The press of caseloads, as well as everyday operational problems, can be pretty overwhelming and kind of just all consuming. It’s in that kind of context that performance measurement can really help judges and managers.”

When cases linger, Ostrom says it costs taxpayers money, and, “as more time goes on … it does increase the opportunity or chance that there may be an additional criminal offense,” as allegedly happened in Lewis’ case.

In response to the data analysis, Travis County felony court leaders said the system is better than most in Texas, and it is being improved. Meanwhile, local defense attorneys said the goals of getting people through the system more quickly appear unrealistic because procedural constraints and speeding up dispositions could negatively affect defendants.

How the system works and why it’s hard to pin down a holdup

To handle felonies, Travis County has eight district courts and a magistrate court. Each felony court is presided over by an elected district judge, who controls the docket in his or her courtroom.

District Judge Brenda Kennedy said ultimate control of a case does not sit solely with judges but is spread among several interacting entities: the District Attorney’s office, the defense, investigators and scientists providing testing. Each contributes to how quickly (or not) a case moves through the system.

“Our judicial interests are focused on achieving justice and fairness for all, which cannot always be done as swiftly as we all would like, however, we do not, as just one part of the equation, have ultimate control over that in many instances,” Kennedy said in her prepared statement.

You can read Kennedy’s entire statement here

Kennedy also said she could not “verify that the methodology used to extract the data is accurate” because the district courts did not work directly with NCSC on that extraction or interpretation.

Measuring Travis County

The NCSC, a nonprofit based in Williamsburg, Virginia, created “CourTools” to provide standardized performance measurements of criminal and civil courts. There are 10 different measurements that analyze everything from the integrity of case files to effective use of jurors and cost per case. KXAN focused on three measurements: time to disposition, age of pending caseload and clearance rate.

Those three measurements “give a nice balanced perspective on overall timeliness,” Ostrom said.

For time to disposition, CourTools suggests a felony court system should strive to resolve 90 percent of its cases within 180 days and 98 percent within a year.

In recent years, Travis County has resolved 33 percent of its felony cases within 180 days, 58 percent within a year, according to the NCSC analysis.

While the “time to disposition” looks backward at disposed cases, the second measurement – “age of pending caseload” – examines the management of cases pending before the court.

This data does have a caveat that favors the courts: it includes inactive time — when a case stalls for reasons outside the court’s control, such as a suspect jumping bail. Ostrom said that would probably not have a drastic effect on the outcomes of the analyses, but the court’s measurements would improve if the inactive time were excluded.

For “age of pending caseload,” NCSC found 54 percent of felony cases were pending at least 180 days, and 27 percent were pending at least a year, as of March 16, 2018.

 “There is improvement in the criminal case processing in the Austin district courts,” Ostrom said. “Age of pending cases suggests cases are now being resolved in a more timely fashion than they were, you  know, just a year or two ago.”

The NCSC’s calculations also include the pre-indictment timeframe, which is the time between a case’s filing and indictment when a grand jury decides there is enough evidence to support criminal prosecution.

The District Attorney’s office has perhaps the most control over a case during that preindictment phase, and Travis County DA Margaret Moore said her office has been working to lower the average number of days between filing and indictment.

Why did he have to shoot her?

Moore took office Jan. 1, 2017. At that time, the DA’s office had a backlog of 400 unindicted cases that were over a year old. At the end of 2017, the backlog was lowered to 15 cases, she said.

“No felony can be prosecuted without an indictment, so it can’t get into court unless it is indicted, unless a defendant waives the indictment for a plea,” Moore said. “In those instances where a defendant can’t make bond, they are going to be in jail at the taxpayer’s expense. So, we are constantly examining the jail population to expedite jail cases.”

The closure of APD’s DNA lab and scientific testing facility has thrown more hurdles in the way of quickening case processing.

Despite those obstacles, Moore said her office reduced the average number of days before indictment from 91 days down to 85. Prosecutors also presented 1,000 more cases in 2017 than the previous year.

The analysis shows the county has a positive clearance rate of 120 percent from February of 2016 through February of 2017. That means the system is clearing a backlog by disposing, or resolving, more cases than it is filing.

Still moving through the system

Nevertheless, some cases linger. KXAN found dozens of burglary and assault cases have spent years pending in court.

For instance, on Thanksgiving day of 2015, 23-year-old Roy Edward Hill allegedly drove a Cadillac through a red light on East St. Johns Avenue, struck a hearing-impaired pedestrian and fled the scene. The victim broke several bones and needed reconstructive facial surgery, according to a police affidavit. Hill was arrested in January 2016 and his case has been pending since February 2017.

In another case, police say Federico Antuna-Medina, 23, burglarized a north Austin apartment in November of 2013. Police matched a palm print in the apartment to Antuna-Medina in 2015. He was indicted in January 2016, and his case remains pending.

Lewis, the man suspected of killing Ebony Sheppard, received several charges after his 2016 Sonic robbery arrest. The day before Sheppard’s murder, police say Lewis robbed a group of people near Dottie Jordan Park and shot two of them as the fled. Later that day he was suspected of carjacking a woman and running over a pedestrian, according to police records. He had been indicted but was out on bond and was wearing an ankle monitor during the alleged Christmas crime spree.

‘Rushing something through is not beneficial’

Unraveling and working through such complicated cases can take time, according to local defense attorneys.

Defense attorney Claire Carter, a board member of the Austin Criminal Defense Lawyers Association, said the CourTools disposition goals seem largely unrealistic, and it is most often not beneficial for the defendant to have his or her case rushed through the system.

“In our estimation as defense attorneys, cases need time to percolate, for the facts to crystalize, and rushing something through is not beneficial,” Carter said. “It is a laudable goal, but it is not necessarily practical.”

“The waiting game is as bad on the victim’s family as it is on the person sitting in jail “

Carter cited drug cases as one example. APD has its own drug testing lab that can get results back in 10 days, but if a person in Central Texas is arrested by any other agency, the drugs are sent to the Texas Department of Public Safety for testing that could take six to nine months to complete.

“You aren’t allowed to plea anything until the lab tests come back,” she said.

Overall, it rarely benefits a defendant to have a case move quickly. After an arrest, a case often still needs more investigating. And if the case will go to trial, the DA’s office needs more time to prepare, she said.

Carter also expressed concern that speeding up dispositions could lead to coercion of defendants to accept guilty pleas.

“We have a huge volume of arrests. We have the hardest working police department I’ve ever seen, and you know everybody is doing their jobs, but the numbers are just crushing,” Carter said. “It puts every agency and every faction of this business in a situation of conducting triage. What is the oldest case that needs to be tried? What is the most pressing case that needs to be tried?”

The costs of a slow system

Outside the courthouse, it is the Commissioners Court and County Judge Sarah Eckhardt that oversee the budget for Travis County’s criminal justice system. Eckhardt, a former prosecutor, does not handle criminal or civil case in this role but said she is interested in improving court efficiency.

“If cases take too long, and they’re too expensive, and we’re using the wrong resources — the wrong tool for the job — then we’re not advancing the goals of justice,” Eckhardt said. “What we miss out on, as taxpayers, is that we pay more for justice.”

Eckhardt said the county needs to rethink how things have been done and innovate. She pushed to get a dashboard on Travis County’s website that tracks court metrics.

Statistics, however, can’t capture the emotional impact of court decisions as they ripple out through communities affected by crime. No data can convey the pain and tension and suspense felt by Ebony Sheppard’s family.

“We’re not the only family in this situation, when it comes to the courts speeding up the process or actually just being on time with what cases they have,” said Andrea Brown, Sheppard’s aunt. “The waiting game is as bad on the victim’s family as it is on the person sitting in jail or the person in jail’s family. We realize they have families, too; and all of this, it’s just a big waiting game.”

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