Two public defenders asked that more be done to protect El Paso inmates from COVID-19. Their boss’s response threw the office into turmoil.
The El Paso County Public Defender’s Office has been roiled in recent weeks by what many in the office saw as an effort to reprimand two attorneys for saying the county wasn’t doing enough to protect jail inmates from COVID-19.
The controversy started after deputy public defenders Octavio Arturo Dominguez and Brian Livingston published an op-ed in El Paso Matters July 14 that urged judges and the sheriff to take more steps to protect against exposure to COVID-19 in jail, including a reduction of people booked for misdemeanors. The column had a disclaimer that made clear they weren’t speaking for the Public Defender’s Office or the county.
After judges and others officials objected to the op-ed, Interim Chief Public Defender William Cox said their decision to write the commentary was evidence of a need for a “detailed personal conduct policy” for people working in the public defender’s office. Many attorneys in the office — who represent indigent clients accused of crimes — responded with emails harshly criticizing Cox. They said he was undermining free speech and implying that Dominguez and Livingston acted improperly by advocating for their clients.
Three weeks after the commentary was published, one of Dominguez’s clients incarcerated at the jail died of COVID-19. County administrators now acknowledge that Cox mishandled the response to the op-ed. Last week, El Paso County Commissioners Court hired a new chief public defender, bypassing Cox.
In the op-ed, Dominguez and Livingston commended judges, the sheriff and others for efforts made to protect inmates, but said more needed to be done.
Judges, the Sheriff’s Office and others were concerned that the op-ed didn’t present the full picture of extensive efforts to reduce inmates’ risk of being exposed to COVID-19, said Joel Bishop, the county’s executive director of justice support and community service.
“I think a lot of the stakeholders that had really poured their heart and soul into this were very proud of what they had done. So it’s kind of like when you poke a pin in a balloon. I think it kind of had that effect,” Bishop said of the op-ed.
The day after the op-ed was published, Bishop sent Cox a message saying “judges and the Sheriff are really upset about this.” He suggested that Cox write a letter to the Justice Leadership Coordinating Committee, made up of judges, members of Commissioners Court, the county attorney, district attorney and sheriff.
Cox sent the letter on July 17, three days after the op-ed was published, saying his office needed to develop a personal conduct policy. He shared the letter with attorneys in the Public Defender’s Office. Many of the lawyers erupted, saying Cox was attempting to silence two colleagues who were exercising their First Amendment rights and advocating for their clients.
“If we cannot criticize the county, the authorities, the government, for gosh sakes, without fear of being silenced — or what? Fired? A disciplinary action? — then in my mind we are not functioning in a free society at all,” Deputy Public Defender Todd Morten said in a July 17 email to Cox, which Morten shared with the office.
Using the Texas Public Information Act, El Paso Matters obtained text messages, emails and letters to and from public defender employees in the days after the op-ed from Dominguez and Livingston was published.
Cox, Dominguez and Livingston declined requests for interviews. Livingston has filed a complaint with the county, saying Cox created a hostile work environment.
COVID-19 at the jails
Through the first few months of the COVID-19 pandemic, policies adopted by El Paso courts and Sheriff’s Office had been successful in preventing outbreaks at the Downtown county jail and the East Side jail annex. At the end of May, only two active COVID-19 cases were reported among inmates at El Paso’s jails. By the middle of June, there were still only four active cases.
The county’s success stood in contrast to a state-run jail next to the county’s jail annex, which had more than 280 cases of COVID-19 by early June.
But at the end of June, COVID-19 infections began to explode across El Paso, particularly among people in their 20s and 30s. Some of those people wound up getting arrested and booked into county’s jails. By June 30, 43 El Paso County inmates had active COVID-19 cases. On July 6, El Paso’s jails had 174 inmates with active COVID-19 cases, and Sheriff Richard Wiles ordered mass testing of all inmates.
The number of active cases in the county’s jails peaked at 230 on July 13, according to daily reports filed with the Texas Commission on Jail Standards. Dominguez and Livingston’s op-ed was published the next day, shortly after 10 a.m.
At 11:44 a.m., Dominguez sent an email to Cox alerting him to the op-ed. “Just wanted to give you a heads up that Brian and I had an op-ed published today on the incarceration numbers we were talking about last week,” he said, including a link. “We made sure to be clear that we were writing in our personal capacities and not representing the office or the county.”
Cox responded: “Thanks for the heads up.”
Swift reaction to the op-ed
At 1:24 p.m. District Judge Selena Solis emailed Cox and other county officials a link to the op-ed, without comment. Cox responded that he was looking into it. Solis sent another email at 3:29 p.m., asking Cox to call her.
Cox met with his office division chiefs that afternoon to discuss the op-ed.
Cox also alerted Bishop — who is his supervisor — about the op-ed in the early afternoon. Cox has been the first assistant public defender since 2014 and served as interim chief public defender since Jaime Gandara resigned in the fall of 2019. Cox was one of three finalists in the search led by Bishop for a permanent leader of the office, but the selection was delayed for months.
Betsy Keller, the county’s chief administrator, sent an email at 2:41 p.m. July 14 to Commissioners Court and other officials: “Judges and others are talking about this article that I believe came out today and is written by 2 of our public defender employees.”
On the afternoon of July 15, Cox sent a message to Bishop that he had talked to Solis and County Court-at-Law Judge Ruben Morales, as well as County Attorney Jo Anne Bernal and one of her assistants. That’s when Bishop suggested that Cox write a letter to the Justice Leadership Coordinating Committee. Cox replied: “Interesting idea.”
That night, Cox sent a draft of the JLCC letter to the senior division chief in the Public Defender’s Office, Rebecca Spencer Tavitas. On July 16, he sent the final letter to Tavitas and division chiefs Daniel Marquez and Edythe Payan, asking them to join him in signing it. All agreed.
County documents show no indication that Cox or other officials talked with Dominguez and Livingston about the op-ed in the three days following publication.
The letter is sent, followed by immediate backlash
At 8:05 a.m. on July 17, three days after the op-ed was published, Cox emailed the letter to the JLCC. He copied Bishop and Michael Cuccaro, executive director of the El Paso Council of Judges. At 10 a.m., Cox sent the letter to the staff of the Public Defender’s Office.
Cox’s letter explained that public defenders fight for their clients, including advocating for their release from pre-trial detention, one of the main requests Dominguez and Livingston had made in their op-ed. What he wrote next immediately inflamed his office.
“The Public Defender’s Office has observed the guidance and boundaries set by the County’s personal conduct policy to this point, however, the approach which was taken in publishing this opinion editorial makes it clear we must establish a detailed personal conduct policy for all of our team members. Moving forward we will draft our office’s personal conduct policy to be sure that team members understand how individual choices and actions can reflect on our team as a whole, and create challenges to effectively execute the sacred trust that thousands of clients place in our office and its talented team of investigators, social workers, legal secretaries and lawyers every year.”
In the following hours, at least 12 attorneys in the Public Defender’s Office wrote emails or text messages to Cox or other supervisors in the office, objecting to the letter. The records provided to El Paso Matters don’t contain any emails or texts from attorneys supporting the letter.
“They provided facts and clarified that this piece contained their own personal opinion. Their piece provided for zealous representation of our clients. And, if this piece of zealous representation somehow evidenced a need for a ‘personal conduct policy,’ how can that be reconciled with our ethical obligations?” Deputy Public Defender Maya Quevedo said in an email to Cox.
Dominguez emailed Cox 14 minutes after the JLCC letter was shared with the public defender staff.
“The implication in your letter is that somehow a county policy or hypothetical personal conduct policy was violated by the publication of this op-ed. I would appreciate a meeting sometime in the future to discuss the issues raised,” Dominguez said. “Frankly, I am disappointed with this response.”
Five minutes after the letter went out to public defender staff, Livingston texted Marquez, one of the division chiefs who signed the letter, asking if he and Dominguez were going to be fired. Marquez said no. “I have to say, Dan, that I’m a bit disappointed to see all four of those (division chief) signatures on the letter. Everything we said in that op-ed is the absolute truth,” Livingston said in the text exchange.
Livingston also told Marquez that Tavitas, the senior division chief, had known about the op-ed in advance and told Dominguez they could write it. “This was run by our senior division chief before publication, and we were told we were free to write the op-ed. Now, we are publicly pilloried? I am beyond livid, Dan.”
At 12:35 p.m on July 17, 2½ hours after Cox shared the letter with staff, Livingston wrote an email to Keller, the county’s chief administrative officer, accusing Cox of creating a hostile work environment. He said Tavitas knew of the op-ed plans in advance and “expressed that she did not believe there would be anything prohibiting us writing the piece as long as we expressed that our opinions were our own and not those of the office or the County.”
Bishop later confirmed that Tavitas had provided county policies to Dominguez and approved them writing an op-ed as long as they complied with policies.
Cox did not mention in his letter to the JLCC that Tavitas had approved plans by Dominguez and Livingston to write an op-ed about the jail situation. He did not mention Tavitas’ involvement in any of the emails or text messages provided to El Paso Matters by the county.
When asked if Tavitas had told Cox of the op-ed plans before publication, Bishop declined comment because it could involve a personnel issue.
The Justice Leadership Coordinating Committee met on the afternoon of July 17. The conversation focused primarily on whether the committee should issue a response to the op-ed highlighting efforts to protect inmates from COVID-19. “They said no,” Bishop said.
Text messages indicate that Cox met with Dominguez and Livingston on July 21, a week after the op-ed was published, but the outcome of that meeting isn’t discussed in records released by the county.
The numbers of COVID-19 cases at the jail have come down in the month since Dominguez and Livingston wrote the op-ed. El Paso County reported 35 active cases among inmates as of Aug. 17, as well as six active cases among jailers.
On Aug. 3, 59-year-old inmate Vicente Rodriguez became the first El Paso jail inmate to die of COVID-19. He had been jailed since 2018 on child sex abuse charges. His trial was delayed because of the pandemic. Dominguez was his attorney.
On Aug. 10, Commissioners Court unanimously approved a recommendation from Bishop to hire Kelli Childress, a veteran Illinois public defender, as the next chief public defender, effective Sept. 15.
At the meeting, County Judge Ricardo Samaniego thanked Cox for serving as interim chief and made a cryptic comment acknowledging concerns among staff. “I know it’s difficult when you’re going through a transition as employees and things happen that, you know, have to be addressed simply because there is no, you know, defined person at that particular time.”
In his interview with El Paso Matters, Bishop said Cox should have spoken with Dominguez and Livingston after hearing of concerns about the op-ed. “I think if he would have met with them, that none of this would have happened. I think it just would have just brought clarity to the situation.”
He said he understands concerns by public defender staff that the letter created an impression that Dominguez and Livingston were being punished for advocating for their clients. “I can tell you that that was not the intent at all. I’m quite sure of that,” Bishop said.
He said Childress, the incoming chief public defender, has the skills to heal divisions in the Public Defender’s Office. Bishop also said that even before the conflict over the op-ed, the county had hired a consultant who was a psychologist and attorney to improve management practices at the Public Defender’s Office.
“I understand it now in hindsight, and it’s really unfortunate that this happened at this time. I think there are going to be challenges in overcoming. But we’ve done a lot of work, an unprecedented amount of work, to try to assist and enhance the leadership and executive training,” Bishop said.
Disclosure: Deputy Public Defender Octavio Arturo Dominguez and District Judge Linda Chew, a member Justice Leadership Coordinating Committee, are members and financial supporters of El Paso Matters.