The callowest young lawyer puts up a website in which he calls himself “The Law Offices of Maverick Ray” (he has one office), “An Experienced Houston Sex Crimes Lawyer Your Freedom Can Depend On” (he has been licensed for less than eight months and been hired on one felony sex case), “the Assassin of Suppression” (Harris County records show no granted suppression motions in drug cases), “Houston’s premier DWI Attorney” (I wonder what Gary Trichter or Troy McKinney, or Lewis Dickson, to name but three of Houston’s top DWI lawyers, with decades of experience each—[edit: not to mention Tyler Flood]—would have to say about that), “often opting to let a jury determine whether someone was truly intoxicated rather than the highly flawed Field Sobriety Tests, Breath Tests, or Blood Tests” (District Clerk records do not show him trying a single DWI case in Harris County during those eight months).Grits thought Mark was being a bit harsh on the youngster until he followed up with this post pointing out that Mr. Ray, though fresh out of law school, has been hired to represent a capital murder defendant in Walker County, where Bennett points out, “Huntsville is the county seat; think 'juries packed with prison guards and their families.'”
I cannot fathom the hubris required for such an inexperienced attorney to take on DA David Weeks, in Huntsville, in a capital murder case. Mr. Ray is gonna get creamed (as he did at a recent bail reduction hearing), and his client will be lucky if he doesn't wind up with a needle in his arm. The judge "had appointed a lawyer to represent Lewis who is approved to defend capital cases in Walker County, but Lewis chose to hire his own counsel."
Mr. Ray's story is as much an example of the utter and complete failure of the State Bar of Texas to regulate its members as it is of one young attorney's over-inflated self esteem. When Bennett contacted Ray about misleading claims on his website, he responded, “What do you mean deceptive? It was approved by Texas Bar and is no different than countless other attorneys websites.” Indeed, that's the real problem, isn't it? State bar approval of web advertising by lawyers is utterly meaningless if this example makes the cut.
Similarly, and more gravely, this example shows more stringent strictures are needed regarding who can represent capital murder defendants. A recent, detailed report (pdf) by the American Bar Association's Texas Capital Punishment Assessment Team recommended that:
Texas must better ensure that appointed counsel possess the knowledge and skills necessary to meet the uniquely complex and demanding challenges of capital representation. Texas should adopt statewide qualification standards that include an assessment of the applicant’s knowledge, skills, and commitment to zealous advocacy as set fort in ABA Guidelines and the State Bar of Texas’s Guidelines and Standards for Texas Capital Counsel. Texas should empower regional or county authorities to make selection and evaluation determinations with respect to list qualified appointed counsel. As with the appointing authorities established in other capital jurisdictions, these local authorities should be comprised of individuals with demonstrated knowledge and expertise in capital representation, and their membership should be, to the extent possible, independent of the elected judiciary.Ironically, if the defendant were indigent, he'd be entitled to a better lawyer. Art. 26.052 of the Code of Criminal Procedure insists that lead counsel in capital cases must "have at least five years of criminal law experience," they must "have tried to a verdict as lead defense counsel a significant number of felony cases, including homicide trials and other trials for offenses punishable as second or first degree felonies or capital felonies," they must have "trial experience" in "the use of and challenges to mental health or forensic expert witnesses and investigating and presenting mitigating evidence at the penalty phase of a death penalty trial," and they must have "participated in continuing legal education courses or other training relating to criminal defense in death penalty cases." Why shouldn't the state bar require similar standards for retained counsel in capital cases? And if they won't, shouldn't the Legislature step in to do so?
Attention also must be paid to monitoring the performance of capital counsel. What constitutes tolerable attorney competency in a non-capital case may be fatal in the capital context. To this end, Texas must adopt performance standards for capital counsel, with particular emphasis on required training and acceptable attorney workloads. Finally, Texas must implement mechanisms for monitoring the performance of list-qualified appointed counsel.
This blog has criticized the state bar for its failure to discipline prosecutors who commit Brady violations, but the truth is they're hardly regulating anybody. Their failures embodied in Bennett's first post are pathetic. Those in the second are profoundly disgraceful and bother me a lot more than does one young lawyer's ham-handed chutzpah.