This story is a collaboration between The Texas Tribune and Texas Monthly.

I.

It was going to be his last shift at the Velvet Lounge, and all Marvin Wilford felt was relief. It was November 11, 2017 — Veterans Day — and as he got dressed for work, Wilford put on his scarlet-colored Marine Corps cap. The Velvet Lounge, a strip joint in North Austin, billed itself on Facebook as “the official afterparty for the city,” but Wilford couldn’t say he had fun: As a doorman, he collected cover charges from 10 p.m. to 6 a.m. and did a lot of standing, sometimes outside. That evening, the temperature was in the 60s. Over his T-shirt and jeans, Wilford pulled on a green hoodie.

It wasn’t that he felt ungrateful. Bald, with an athletic build, the 61-year-old was a year away from collecting Social Security, and his veteran’s pension didn’t quite cover the bills. The club paid $100 a night—not the kind of money he’d made running his own building-and-maintenance company once upon a time, but enough to supplement what his wife, Christine Wilford, brought in as a technician at Voltabox, a company that specialized in lithium-ion batteries.

In fact, Marvin Wilford felt lucky. After serving as a combat Marine in Vietnam, he’d gotten in serious trouble. In 1991, he’d been arrested after assaulting a police officer and was sentenced to prison for 20 years. He’d been released early, but then in 2006 he’d been arrested for assaulting an ex-girlfriend and was sentenced to another 10 years. A diagnosis in 2015 of post-traumatic stress disorder, and medications, had given him a new start, but no one wanted to hire an aging felon. His nephew, who owned the Velvet Lounge, had thrown him a lifeline.

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Still, after three months at the gig, Wilford was done. He’d had hernia surgery, and he was walking with a cane. Christine Wilford had been sick, too, wracked by a nagging cough. The club, with its drunken brawls, was too unruly a scene. “This is not working for me,” Marvin Wilford muttered to himself, throwing his cane in the car and heading west on U.S. 290. “There’s gonna be trouble.”

Marvin Wilford served as a combat Marine in Vietnam and was diagnosed with post-traumatic stress disorder in 2015.  Trevor Paulhus for The Texas Tribune

Sure enough, trouble came at around 4 a.m., when a fight broke out by the dance floor and a security guard, a 42-year-old named James Jones, escorted two women outside. Wilford, standing by the door, watched as Jones led the disheveled pair — one with no shoes — toward the parking lot. He and Jones had become friends, bonding over the troublesome revelers they had to deal with. Jones liked to call him Unc, out of respect.

“F— all you security guards!” yelled one of the women. She and her friend stumbled toward a car, vowing to return. Then they sped off.

Twenty minutes later, the same car screeched back into the parking lot. By this time, other patrons were spilling out onto the sidewalk. Though accounts of what happened next vary, multiple witnesses would later say they saw one of the women get out of the car, brandishing a tire iron, and lunge at the gathering crowd. Jones saw the woman strike Wilford. Wilford recalls trying to keep her away from other patrons. Someone hit the woman over the head with an empty vodka bottle. Someone else stomped on the hood of the car.

“She was trying to fight everybody,” Jones later recalled. Quickly, the security guard grabbed his pistol and shoved it into her hip. “Let go of the weapon or I will shoot you,” he warned.

Instead, the woman rushed back into the melee. Jones and Wilford heard gunshots from somewhere in the parking lot. “Unc, go in the club,” yelled Jones. Wilford ran inside as Jones pointed his pistol into the air, firing two warning shots. The crowd dispersed.

By the time the police arrived, just before 6 a.m., the fighting had ceased. Several officers interviewed those on the scene — Wilford, Jones, some additional security guards and the woman who had charged the crowd, whose head appeared to be bleeding. No one was arrested. When Wilford finally got in his car to drive home, it was light outside. “I’m through,” he told Jones before leaving. “Too much madness over here.”

The security guard nodded. “I don’t blame you,” he replied.

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Five weeks later, Christine Wilford was going through the mail when she opened an unsolicited form letter from a lawyer — she does not recall who — offering his legal services. Her breath caught when she saw why. There was a warrant for her husband’s arrest, read the letter. The charge: aggravated assault with a deadly weapon, a second-degree felony.

The charge didn’t make sense. As a felon, Marvin Wilford wasn’t allowed to own a gun, and didn’t. Neither he nor his wife had heard from the police. As Wilford skimmed the letter, his head began to throb. With his criminal record, a new conviction could earn him a life sentence. He felt his lungs constrict. He couldn’t breathe. Alarmed, Christine Wilford called the Veterans Crisis Line. Her husband was having an anxiety attack, she blurted into the phone.

Nine days later, on Dec. 29, the couple drove to the Austin Police Department headquarters downtown to turn himself in. Marvin Wilford had spent several days at a Veterans Affairs hospital because of his panic attack. Now, sitting with a detective in an interrogation room, he learned that the officers who interviewed him at the Velvet Lounge had not found him credible. The woman in the fight claimed that she’d been threatened with a gun by a man wearing jeans and a green hoodie; she later picked Wilford out of a photo lineup. According to a police affidavit, Jones told the officers that Wilford kept a gun in his car. (Jones denies this, and when the officers checked the car that night, they found only Wilford’s cane.) There was video evidence from a witness, the detective told Wilford, as he turned on a laptop.

Watching the chaotic cellphone footage, Wilford tried to protest. Yes, there he was, in his green hoodie. But, he pointed out, he was clearly holding a cane, not a gun. And Jones, he added, had recently learned of his warrant and willingly signed a notarized statement to support him, affirming that Jones, not Wilford, had pulled the gun and fired it. Surely the police were interested in that?

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The scene from a bond review docket at the Travis County courthouse in July. Trevor Paulhus for The Texas Tribune

The detective wasn’t persuaded. As Wilford was placed in handcuffs, his heart raced. He could not afford a lawyer. His wife’s job barely paid the bills, and their impending property tax payment that year — $4,500 for the home they’d inherited from his mother, in East Austin — loomed large. “I was really angry to be accused of something I didn’t do,” he said later. “Especially with the record I have.”

In 1963, the U.S. Supreme Court ruled in Gideon v. Wainwright that a person accused of a felony is guaranteed counsel even if the person can’t afford a lawyer. How exactly that counsel is provided, however, was left to states to decide, and in Texas, this “how” gets further relegated to the state’s 254 counties — meaning that each county decides how to appoint, and pay, lawyers for the poor. Last fiscal year, there were roughly 474,000 indigent cases in Texas. There are 19 public defender’s offices, which 39 counties rely on in some capacity, but the majority of counties contract with private lawyers, who are generally paid a modest flat fee per case. (This is the most common way that states fulfill their Gideon v. Wainwright obligations.) More than 150 counties also participate in a public defender programfor death penalty cases.

Travis County, where Wilford was booked, has a limited public defender program — it serves juveniles and some mentally ill defendants — but relies primarily on a system of managed assigned counsel, in which an independent office assigns cases to a rotating cast of more than 200 private lawyers. After being transferred to the county jail in Del Valle, on the outskirts of Austin, Wilford waited.

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He’d taken a few college classes on law after Vietnam, and he knew enough to feel hopeful. Surely his lawyer would look into his story. One evening in early January, he went to bed early — he was sleepy from the jail-issued anxiety meds — only to be shaken awake by a guard at 9 p.m. His lawyer, Ray Espersen, was there to see him.

A 58-year-old with strawberry-blond hair and thin glasses, Espersen was one of Austin’s most prolific lawyers: The previous year, he’d been paid for work on 331 felonies and 275 misdemeanors in Travis County, as well as 46 felonies in neighboring Williamson County — more cases than nearly any other Austin-area attorney. Such was Espersen’s workload, in fact, that in 2015 it had caught the attention of the public, when local TV station KXAN reported on the high number of cases appointed to him (the equivalent workload, by later estimates, of that of at least three and a half lawyers). After the report, the district attorney’s office had opened an investigation into apparent discrepancies between the number of jail visits that Es­per­sen had billed to the county and those recorded at the Travis County Sheriff’s Office.

Wilford did not know this. What he did know was that as he tried to explain — about the video, about the gun, about Jones — Espersen didn’t seem to be listening. The visitation room was tiny, and the two sat practically knee to knee, but “he was looking at the floor, scratching his head, looking everywhere but at me,” Wilford recalled. According to Wilford, Es­per­sen’s laptop remained closed, and he took no notes.

“Well, have your wife send me that video,” Espersen said at last, according to Wilford. (Espersen declined to comment for this story.)

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“Hey,” said Wilford sharply, “I was just woken up to come talk to you, and I’m trying to tell you what happened because you asked. Now you’re not listening.”

According to Wilford, Espersen asked him to press the button that opened the room’s door. Unsure of what else to do, Wilford complied.

He would not see his lawyer again for six months.

II.

Indigent defense in the U.S. is in crisis. More than 20 lawsuits filed in the past decade on behalf of poor plaintiffs — in CaliforniaLouisianaGeorgia and other states — point to this predicament, which has been acknowledged at the highest levels: In 2013, in a speech marking the 50th anniversary of Gideon v. Wainwright, then-U.S. attorney general Eric Holder bemoaned the number of unjust convictions and sentences borne by the poor. “This is unacceptable,” he declared, “and unworthy of a legal system that stands as an example to all the world.”

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The main reason for this crisis is funding. Because the Supreme Court did not, in its 1963 ruling, specify how states should pay for counsel, local policymakers facing other costs — for schools, roads, law enforcement — consistently shortchange indigent defense. This is why public defender’s offices are chronically understaffed. It’s also why court-appointed private lawyers are overloaded: The fees they’re paid are often so low that they are forced to take on a multitude of cases just to make a living. Some overburdened lawyers, in turn, contribute to so-called plea mills, in which, critics say, they encourage defendants to plead guilty because they are either too swamped to investigate claims or incentivized not to. (In Travis County, for instance, court-appointed lawyers are paid $600 for a felony case whether they secure a plea deal or get the charge dismissed.)

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