Poor defendants deserve
competent appellate lawyers E-mail
The Texas Court of Criminal Appeals fails regularly to ensure that death row inmates get competent lawyers to handle their appeals. That finding, well documented in a study released this week by the Texas Defender Service, confirmed what many have long suspected about the quality of legal representation for defendants who are too poor to hire appellate attorneys: Incompetent attorneys often get the appointments.
Texas lawmakers tried, but evidently failed, to fix that in 1995. They made progress a year ago by creating a system to provide poor defendants with competent lawyers at the trial level.
The Legislature now should confront the issue of fairness in death row appeals cases. At the very least, the Legislature should set minimum standards for state court-appointed attorneys who handle such appeals because the Court of Criminal Appeals appears unwilling to do so. In most cases, the appeal -- writ of habeas corpus -- is literally a life or death matter.
The defender service, a nonprofit group that represents capital murder defendants, examined all initial habeas corpus applications available between 1995 and 2001: 251 of 263. It concluded that death row inmates "face a one-in-three chance of being executed without having the case properly investigated by a competent attorney or without having any claims of innocence or unfairness heard."
To be sure, the study presents a troubling portrait of a system meant to weed the innocent and undeserving from the guilty. It seems only logical that a defendant, even one who is guilty, can't receive a fair trial if his lawyer is asleep, high on drugs or flat-out incompetent, when prosecutors suppress evidence, or when witnesses lie.
The criminal high court seems unwilling to do the job the Legislature assigned it in 1995: appointing competent appeals lawyers and doing meaningful appellate review in habeas corpus cases. Instead of being a check on trial courts, the high court has become a rubber stamp for the prosecution. In blatant examples, the study details that the criminal court of appeals is failing to adequately determine competence of attorneys.
Here are some of the results of that system, according to the defender service study: * In 39 percent of the cases, appeals lawyers made no apparent effort to investigate the cases against their clients to determine whether the defendants were improperly convicted or possibly innocent. * Texas wrongly convicted and sentenced to death at least seven men, including Randall Adams, Clarence Brandley, Federico Martinez-Macias and Ricardo Aldape Guerra. All would have been executed by the state without access to the courts for meaningful appellate review. * Of 251 habeas corpus applications reviewed, 76 (30 percent) were 30 pages or less. Some 22 applications were 10 pages or less. In the case of Toronto Patterson, who as a juvenile was charged with capital murder and executed this summer, a six-page habeas corpus application was filed by his lawyer. That is troubling, considering that procedural requirements for habeas corpus petitions usually consume five pages alone. * Incompetent and inexperienced lawyers were routinely appointed to handle cases, including one with a cocaine problem and another with bipolar disorder. In the case of Leonard Rojas, executed Wednesday, his lawyer admitted that he was under three separate probations from the State Bar while representing Rojas -- all for mishandling other clients because he was on medication for bipolar disorder. One lawyer on the court list is dead, the study found.
As troubling as those findings appear, more startling is the posture of the high court's presiding judge, Sharon Keller. Keller's refusal to acknowledge the existence of bad, incompetent and inexperienced lawyers leaves little doubt that the court will not correct the problem on its own. When asked about the study, Keller responded: "Generally speaking, the lawyers that are appointed are very well-qualified, very capable people and do their job well."
Her failure to recognize and confront problems in the face of hard evidence only perpetuates the appearance that the court is more interested in efficiency and moving people through the system than in justice. (Keller did offer to remove the dead attorney's name from the list.)
We urge the Legislature to carefully weigh the facts in the study and use it to craft a better and fairer appeals process for all.
AUSTIN AMERICAN-STATESMAN Thursday, December 5, 2002
Study: Innocent at Risk in Texas System
By JIM VERTUNO
.c The Associated Press
AUSTIN, Texas (AP) - Innocent death row inmates are at risk of being executed in Texas because of shoddy representation on appeal by court-appointed lawyers, according to a report released Tuesday by a group that represents capital murder defendants.
The report from the Texas Defender Service examined hundreds of cases since the introduction of habeas petitions in 1995, when the state began allowing new claims of innocence, trial misconduct or ineffective counsel to be raised.
The petitions differ from direct appeals, which are based only on the trial record.
The report, called ``Lethal Indifference,'' says a ``high number of death row inmates are being propelled through the state habeas corpus proceedings ... with unqualified, irresponsible, or overburdened attorneys.''
In more than a third of the cases studied, the court-appointed lawyer presented no materials to support claims raised in their habeas petitions. And in another 28 percent of the cases, they raised only claims that cannot be addressed by the courts in habeas proceedings at all.
Either would be like filing ``a blank piece of paper'' on behalf of their defendant, said Jim Marcus, executive director of the Texas Defender Service.
