COVID, staffing backing up courts

There are roughly 6,000 pending cases in Ector County District Court right now, roughly double what there used to be and COVID-19 and staffing shortages are to blame, said Ector County District Attorney Dusty Gallivan.

Gallivan took over the reins of the district attorney’s office from Bobby Bland in January 2021, nearly a year into the pandemic and at a time when judges were unable to hold live, in-person court hearings.

At that time, the office had about 3,000 more cases than normal, he said. The courts returned to normal practices in May 2021, but things haven’t gotten much better, he said. He is supposed to have 22 prosecutors but only has 16 currently.

The office has a “rolling average” of about 6,000 cases and that includes roughly 60 homicide, intoxication manslaughter and criminally negligent homicide cases that are filed annually, Gallivan said.

“Unfortunately even though we’ve resolved some of those cases either through plea or trial, the number stays the same because we’ve had that number of new cases,” he said. “People didn’t stop breaking the law during COVID.”

Not only did COVID-19 slow the judicial process down, but having six open prosecutor positions and too few judges hasn’t helped either, Gallivan said. On top of that, he said law enforcement agencies, labs and forensic pathologists are also short-handed, so that slows down the process, too.

“Just speaking hypothetically, as far as numbers go, if we receive 10,000 cases a year and our plea rate is let’s say even 98%, that leaves 200 cases to try. Well, we only have four district courts and two county courts,” Gallivan said. “On a good year, we’ll try 25 cases total, so that’s just over 10 percent of what didn’t plead.”

Exacerbating the situation is defendants who have been released from custody pending trial have no incentive to enter a plea agreement, he said.

“It slows down your plea rate because people are like ‘why should I plead you’re never going to try my case?’” Gallivan said.

It’s even more true when defendants have prior convictions and are looking at prison time, he said.

“Very few people volunteer to go back to prison,” Gallivan said.

Gallivan, whose office also handles misdemeanor, juvenile and Child Protective Service cases because of a change in state law, said he and his prosecutors are doing the best they can under the circumstances.

“It’s one of those things where we’re constantly focusing on,” Gallivan said.

They work with Texas Tech, Baylor University, A&M and St. Mary’s University to recruit new attorneys and they do their best to get lower level criminal defendants through the process as quickly as possible while still ensuring justice is done, Gallivan said.

“Our job is to see that justice is done and that is in all cases, not just if somebody died, but if somebody stole your property, but unfortunately we have limited resources,” Gallivan said. “If we had 20 courts and enough staff to fill all of them our job is still the same, we have to manage those resources, and do the best job we can and as you might imagine working on those 60 cases takes more time than a possession of marijuana or theft case so we have to allocate our resources accordingly.”

Sometimes, Gallivan said that means lower level criminals may get a better offer than they otherwise would simply because they just don’t have the resources to dedicate to them.

Gallivan used possession of marijuana cases as an example. Although marijuana is still illegal, Gallivan said legislators made the crime more difficult to prosecute a few years ago so his office has been offering plea agreements where the crime is dropped to a Class C misdemeanor.

The district attorney said the commissioners have done a good job of increasing pay over the last few years, but younger, single people just out of college aren’t likely to find West Texas appealing.

“They want to go to Dallas, Houston, those kinds of places and I think that’s where our problem is,” Gallivan said. “Most of the people that we’ve got to come out here are older. They’ve been a prosecutor for a little bit or they want to change what they’re doing to be a prosecutor.”

According to the Texas District and County Attorneys Association website, on Thursday there were 73 jobs listed throughout Texas.

“It’s an employee’s market,” Gallivan said.

As for COVID-19, Gallivan said the past few months have been rougher than in the past.

“When I was downstairs (in the county attorney’s office) and COVID first started to affect us, we didn’t really have an outbreak. We had maybe one or two people catch it and were out. The courts weren’t able to function because of the groupings and all that, but we were still able to do everything else,” Gallivan said. “This recent outbreak over the last couple of months has knocked us on our butt. There was one week I think we only had maybe 10 people here, if that. Everybody else was out sick in this office. Now I think we have one person out so hopefully that person will be back next week and we’ll be good to go. We’ve been fortunate, we still have had court, we’ve still had trials, we’ve still done everything we do, but it’s been tough.”