Wednesday, September 18, 2013

Writ denied: But why?

The American Bar Association's Individual Rights and Responsibilities section has issued a book-length 500 page report (pdf) on the death penalty in Texas. Find an 18-page overview here (pdf). Looking through the summary, the topics raised appear mostly related to innocence issues with implications far beyond the death penalty, like eyewitness ID procedures, recording interrogations, and ensuring high-quality indigent defense. There's a ton of detail and Grits may soon come back to examine other aspects of the report, but for now I wanted to highlight an interesting observation about habeas corpus proceedings that I'd never considered before:
Most capital habeas petitions are dismissed in a two - or three - page summary order issued by the Court of Criminal Appeals, whereas appellate courts in other death penalty states issue detailed opinions in capital post-conviction cases. Perhaps as a result of this practice, the Court of Criminal Appeals has failed to address claims that later led to relief in federal proceedings. This also creates a problem for death row petitioners and habeas lawyers attempting to research their cases, as there is little case law developed on capital habeas proceedings despite the frequency of death sentences imposed and executions carried out. 
Like most of the other issues discussed, that observation applies equally to non-capital habeas writs, which are typically dismissed with at most a bare-bones explanation and usually not even that. I'd never thought about how that failure to justify denials undermines the Great Writ,  but it's an excellent point.

MORE: See a Dallas News editorial based on the report and coverage from the Austin Statesman.


Anonymous said...

One can only agree with the concern about the lack of reasoning set out in (most) habeas denials. As a lawyer, I can also add that the difficulties for defense counsel in obtaining funding for the statutorily mandated investigation in habeas cases is a major problem - the trial court judges simply do not take the need for investigation seriously. The reversals in habeas cases are almost always on largely factual, not purely legal, grounds. If we lawyers don't get the resources for investigation, we simply can't do our jobs. Moreover, the quality of the lawyers on the capital habeas list remains questionable - there are too many who still do not even attempt to investigate in any meaningful way, and some of the writ applications filed are very weak. IMHO, counsel should not be allowed to take these cases unless they at least attempt to investigate thoroughly: perhaps the Office of Capital Writs could draft an investigation protocol to be enforced by the CCA? i.e. you don't get paid unless you've done that work.

Anonymous said...

Awe yes, the 'I' – word and its close proximity to the Denial Letter Game that includes the Full Pardon – for / based on innocence lone one sentence denial. Too bad, that ‘it's’ a point of concern on the back end vs. prior to filing Ready for Trial notices. But for a lawyer to come out and be honest is very refreshing.

Why? The crying shame part comes in when Everyone and I mean Everyone knows damn well that no one is Investigating shit. *If you comment saying you Investigate, then prove it. Put it on your website, business cards and on your business’s front door. Better off, chastise those that don’t & simply don’t take criminal cases where the client pleads Guilty. Let the new wave of Slackers aka: Professional Pleaders (that includes Divorce & Estate specialist allowed to dabble in the CDL niche) have the Guilty clients. As it is now, no one can tell the difference between fighters and pleaders in initial consultations and it results in lumping the bad in with the good. The CCA knows that a slacker will cut corners and take the denial, pass it on and not lose any sleep since they got paid up front.

The game is rigged folks and you know it. The ABA, is a fraternal joke, just as the CCA is a waste of taxpayers’ funds, just ask any ‘real’ lawyer.

Anonymous said...

If we lawyers don't get the resources for investigation, we simply can't do our jobs.

Hmmm. Let's see what we can do to address this.

There are plenty of Law students, P.I. students in Texas that would be willing to assist in return for Letters of Recommendation and / or being able to have a Resume showing Legal studies experience in lieu of actual pay checks.

*If you think you need to pay high prices for Expert witnesses to tell a jury or the CCA what it needs to know in order to arrive at a proper decision, you are simply setting up your own brick walls. Tell the truth and show all of the cards not shown to the trial jury and let them do their jobs. Publish the Denial Cases and let the public know what’s going on if you think your client was wronged again.

Dilemma solved, now it's up to you to do the right thing for the right reasons vs. it being an old school in house motto of the corrupt. Be all that you can, Mentors and Role Models or get out of the legal biz.

Anonymous said...

Why? The ignored side-effects of refusing to Investigate prior to taking felony cases, during pre-trial & the trial itself has resulted in 95% or higher criminal cases being disposed of via legal advice to either stop a jury trial in progress in order to plea bargain (or avoid one by changing ones original plea to nolo contendere, where one later learns that it is simply Latin for Guilty). When no one is required to record official Plea Changing reason(s) provided in Open Court, you get vague Court Reporters notes in the margins as Not Guilty is crossed out that make one assume that the defendant took matters in his / her own hands.

The CCA is basically a state sponsored smoke & mirrors illusion meant to make it appear that cases of confusion will get a final vetting.

Anyone know the CCA’s Denial and Agree rates and who is filing for post conviction relief with the CCA?

Anonymous said...

I might not know Why” but anyway you look at it, as a real life sized victim of the criminal justice system, take it from me -

when the arresting agency fails to Investigate / Vet the arresting officer's reason(s) for arrest and Detectives fail to Investigate the arrested person's version or statement and the hired / assigned lawyer fails to Investigate / vet their own clients' prior to filing 5 Ready for Trial notices, it should not be a surprise to learn that the lawyers over at the CCA use that weak link to Deny the majority of the time.

Yes, the game is rigged and Everyone definitely knows it.

Adam said...

Wow a 500 page report on the death penalty, someone must have had a lot of free time.

Anonymous said...

Texas just ass. It's a high school game where truth takes a back seat to the conviction rate score card. The trial court system is the Jerry Springer show and So You Think You Can Dance rolled into one. The court of appeals is where the law is supposed to be applied by the letter. And just like a kid with a game boy who goes online and figures out the cheats you have d.a.'s (lower case intended) who load up the cost of non conformity using the plea "bargain" cheat to convict based on plea to get community service in place of going to jail for ten years. Yes, innocent people plead guilty because the cost of non conformity is too high. Then you take these bastards that don't do their job and play Texas hold 'em with someone's life only - hey, they don't have a dog in the hunt. No repercussion if you railroad an innocent, you as a part of the Criminal Injustice cancer can't be held responsible. The defense attorney flys by the seat of someone else's pants, takes the dough and lives on the billable hour till the money is all gone and then don't know you. If you have an issue of law with a trial judge then you lose. Unless the money you can pay in a musical chairs game of counsel is endless.
It is unconstitutional for a plea bargain or a sentencing agreement to include the waiver of appeals chip. Wait, I can screw this up so bad that the client loses life liberty and happiness and then we go all in when they have no chips and waive the basic right to hold me accountable , all I have to do is tell them no court will grant an appeal. No lawyer would take it? I walk away with all the money and yell out next victim?
No plea bargains. Your rights to fair trial and review are too high. Overhaul the CJS and if it is a victimless crime then don't create a victim. Make EVERYONE accountable. Just because you are a cop and you go to the wrong property in combat ready mode does not mean you can shoot my dog and not be accountable. Soft on crime? There is no softer place for crime than at the bar screwing up lives and walking away unscathed because you didn't investigate or you had a bad day or your life sucks. No bargain. Trial, appeal, writ, re writ. That's the way law works. Internet cheat codes are still a lack of charature and if you cheat at solitaire you are a cheat. Judicial and prosecutorial review should not be how many convictions you gained, it should be how many innocents you saved, Franklin said better for 100 guilty go free than convict one innocent. One more thing, don't sit there saying it will never happen to me. First they came for the Jews....

john said...

But it ALL relies on plea bargains, and that's partially why the number & availability of courts is kept tiny. Folks losing hourly wages will always just pay up front. How can a clerk take your payment when you've had no trial? The rationalization is if you volunteer you are guilty, and anyone can accept the money.
Courts hinge on expedience, not constitution or law; the precedence is also expedience. They follow any part of the law that aids the court. Courts also stall, like cops on overtime stall; while the citizen is losing hourly wages, etc.
Why give opinions that might single you out as a target, when there's no oversight, already?
Better yet, obfuscate at the Grand Jury level, so it will "investigate" the wrong people for the wrong reasons. Rubber stamp that prosecutor.
But you're locked up even for even unjailable offenses, and paraded in front of jury and court in an orange jump suit so they'll presume you must be guilty. Your body will be unavailable no matter what papers you turn in.
I don't know if things are worse in felony cases, but if so, it could also be due to more money available--so the law industry can afford to take more time and look better.
Worst of all, complaints do no good, as those reviewing them are in on the scheme. Fixed, indeed. Again like politicians, the worst judges remain until they've destroyed the maximum number of private lives. It wasn't supposed to be this way; justice was supposed to be blind objective, not blind drunk ego rich.
The ABA is no joke; it is the only successful union. Like and with politicians--the oldest profession--it has recognized upon which side its bread is buttered. And that makes private-sector citizens the toast.

Grandmom said...

I want to know how many convictions were upheld by the CCA when exonerations came to pass eventually due to actual innocence.

Anonymous said...

The problem with the equation you seek is the avenue for exoneration is so narrow and most importantly, the sentencing agreements contain controversial language forfeiting the right to revue.
If you are innocent and you are under stress from a false conviction and the lawyer advising you realizes he violated a precept of his guild he can further himself by advice benefiting everyone but the accused. Agreements at sentencing are most egregious because you are not left with time , information and opportunity to make an informed decision.
If all the factors are for covering everyone else's ass they waive pre sentencing investigations, waive the right to any review, take as much money as you have promising to help post conviction and then when you are sure of gross error on your part for accepting a life changing decision with no chance of relief, you can't do it. Nobody knows your name in most law firms after they get the signature and the check.
The only jurisdiction I can speak of with personal knowledge is the courts in Tarrant County. The county next door, that little town called Dallas, seems to be much more adept at criminal justice as opposed to "cowboy" justice.
So if you are trying to get a feel for exoneration you would get the same quantities answer by standing in the prison yard and asking everybody that's innocent to please raise their hand( tongue in cheek)

Anonymous said...

Quick Q.

Anyone know about the plea bargain regarding a felony and the exact time one has to appeal ones decision to take it? (specific Rules of Court, etc…)

Asking because when I was tricked (by a hired but yet very fake CDL) to stop a jury trial to plead nolo contendere, I was not informed that I had the right to. Imagine how it felt to hear someone years later say that I had 30 days to file.

Thanks for clearing this up for me.