Friday, November 28, 2014

Panetti dissents lament failures of habeas corpus for the indigent

The Texas Court of Criminal Appeals ruling that made the biggest national headlines this week was their decision to kill mentally ill capital murderer Scott Panetti. Nearly all the attention focused on Judge Tom Price's surprising John Paul Stevens impersonation - an on-the-way-out-the-door declaration that the death penalty should be abolished after personally authorizing hundreds of executions on the court. Talk about living with regrets!

I'll leave the death penalty pro and con debate to others (and would thank commenters to do the same). Instead, the most interesting part of Price's dissent to me was his discussion of innocence cases, DNA exonerations and the lack of funding for attorneys to file habeas corpus writs for indigent defendants. Price wrote:
Perhaps more importantly, society is not less convinced of the absolute accuracy of the criminal justice system. A 2012 study by the University of Michigan and Northwestern University law school ranks Texas number three nationally in wrongful convictions over the last twenty years, behind Illinois and New York. ... In my time on this Court, I have voted to grant numerous applications for writs of habeas corpus that resulted in the release of dozens of people who were wrongfully convicted, and I conclude that it is wishful thinking to believe that this State will never execute an innocent person for capital murder. ... There is no rational basis to believe that this same type of human error will not infect capital murder trials. This is true now more than ever in light of procedural rules that have hastened the resolution of applications for writs of habeas corpus and limited subsequent applications for habeas relief. This Court has seen too many initial applications for writs of habeas corpus that were filed by ineffective attorneys, and yet applicants have not been permitted to file subsequent applications to challenge the ineffectiveness of those attorneys. The lack of a guarantee of effective counsel in an initial application for habeas relief, combined with this Court's refusal to consider a subsequent writ that alleges the ineffectiveness of initial counsel, increases the risk that an innocent person may be executed for capital murder based on the procedural default of a possibly meritorious issue. I conclude that the increased danger that a wrongfully convicted person will be executed for capital murder that he did not commit is an irrational risk that should not be tolerated by our criminal justice system. (Citations omitted.)
That critique should by no means be limited to capital cases. The same procedural defect prevents lots of legitimate innocence (and other valid) claims. Most habeas corpus writs, particularly non-capital ones, are submitted pro se by inmates without the benefit of counsel. Then later when a lawyer gets involved, there are many claims precluded by failures in the first, pro se writ. Happens all the time.

Maurice Chammah at the newly minted Marshall Project wrote a piece that framed the case in terms of ambiguous standards applied to whether a defendant is incompetent to execute, declaring that "the fact that Panetti is facing a lethal injection despite a 30-year history of documented mental illness demonstrates that the ambiguities of the legal standard of 'competency' ... are far from resolved." His points are well taken, but to me, the theme of the two dissents was more about the failure of the habeas corpus process to provide an adequate remedy for systemic failures and constitutional violations for the indigent. (The majority per curiam opinion was non-substantive.)

Judge Alcala's dissent emphasized the odd position in which Panetti finds himself thanks to the same lack of funding for indigent habeas corpus writs lamented by Judge Price above: "Appellant's motion requested funds so that he could make an initial showing of incompetency as required by Article 46.05. Despite the lack of any statutory provision that would provide funding for the appointment of mental health experts prior to the filing of such a motion, Article 46.06 requires an indigent defendant to make a threshold showing of incompetency." (Citations omitted.) From that description, the issue isn't so much "what is the standard for competency?" but "how can an indigent defendant meet the standard without funds to hire expert witnesses?"

The Court of Criminal Appeals receives thousands of habeas corpus writs each year and I've been told they take up more of the judges' time than direct appeals. Price and Alcala were discussing capital cases, but keep in mind that those are reviewed more stringently on appeal and in the habeas process, by far, than most other murders or other serious, "3g" offenses. Non-lawyer inmates author most non-capital habeas writs without the benefit of investigators, expert witnesses, lab work, or any of the other sorts of things that a competent appellate attorney might do, all of which costs real money. Many inmate writs are hand-written; some are barely literate. Then, because in the era of mass incarceration the volume of habeas writs has skyrocketed, the court installed strict limits on "subsequent writs" after the first one that effectively deny prisoners' ability to revisit even provably valid claims save for a handful of exceptions.

The issues surrounding the lack of indigent counsel in the habeas process isn't limited to capital murder cases, and often I wish society could discuss such topics outside the frame of hot-button culture war issues like the death penalty. These are questions of justice, not partisan tropes. Still, I'm thankful to the judges for highlighting a serious flaw in post-conviction jurisprudence that contributes significantly to the public's lack of confidence in the justice system. Cases like the San Antonio Four, Anthony Graves, Michael Morton, Fran and Dan Keller, and dozens of Texas DNA exonerees have demonstrated that a) flaws exist and b) they can only be rectified through a combination of luck and quality legal counsel advocating for them through the habeas corpus process.

Nobody ever raises this issue in the political arena because it would cost so much to provide counsel for habeas writs, people think a penny pinching Republican-controlled Legislature would never go for it. But as Judge Price said a decade ago, "Even Republicans want there to be fair trials," and perhaps today he might add, a fair appellate review. The fact that it's politically unlikely the Lege will solve a problem doesn't mean it can't or shouldn't be openly discussed, even if in Judge Price's case it's sort of a last hurrah.


Anonymous said...

While I never get involved in too many death penalty cases, executing Scott Panitti will put any integrity the death penalty has in Texas at risk for future use. Governor Perry should look at reducing Panitti's sentence to life in prison due to his mental status.

Anonymous said...

My own personal experience is the criminal justice system will use the constitution as a checklist to violate your rights. Defense attorneys, paid or not will do little to fight for any of these rights, the courts refuse to look at the facts on constitutional issues and we may as well invite the redcoats back. At this point all this constitutional banter is pure lip service by politicians and the systemic denial of factual issues of these rights makes it easy to spill over into ignoring factual issues of actual innocence.

Barring a death penalty case, the only prayer is to learn the system and go pro se.

Anonymous TDCJ graduate

Anonymous said...

I agree. Regardless of the type of crime in which one finds oneself, you are pushed through as if on a conveyor belt....with or without a private attorney. I should know after going into debt and being forced to sign a promissory note to the Public Defenders office after getting a loan from a bank to pay a private attorney. He then goes I can't do anymore on your case without more money. Okay then. So off to the PD who said we can't take your case so we will pay your Attorney and you can pay us. This is the system criminalizing poverty and ensuring poverty if you try to fight it.

Attorneys are loathe to actually do the heavy lifting. Such as find the law, argue the law and force the state to actually prove their case with evidence. Cross examine the States experts, challenge their role (as in the infamous Stephen Hayne) and demand Judges to truly be unbiased individuals whom are there to hear all sides of the case

Anyone trying to challenge the State finds a wall created of bullshit created by Attorneys to ensure that their bottom line is protected not those they serve.

Prosecutorial misconduct is an epidemic, imagine if the Bar Association actually did something about that!

Read some of the bullshit "BLAWGS" by defense attorneys that rant on lamenting the lack of justice for certain cases.. meanwhile doing NOTHING to change it.

The system is broken. We need to change it by working with some of the existing groups that truly see the system for what it is - a sham

Anonymous said...

The comment I'm about to make probably will be of little use and is nothing more than my observation but, a previous commenter wrote:

"Attorneys are loathe to actually do the heavy lifting. Such as find the law, argue the law and force the state to actually prove their case with evidence. Cross examine the States experts, challenge their role (as in the infamous Stephen Hayne) and demand Judges to truly be unbiased individuals whom are there to hear all sides of the case

Now for my comment: Truer words have never been spoken. After a bout with a corrupt Texas criminal justice system myself, at 41 years of age, I went to law school. In the short couple of years I have been practicing I have been amazed at how lazy and incompetent a typical lawyer can be. I haven't really ventured into criminal defense but what I've seen on the civil side is downright scary. Right out of law school I could argue circles around much more experienced attorneys just because I took the time to do some research and actually learn what the law was on a particular issue. Way to many attorneys never do any research and simply fly by the seat of their pants thinking their dazzling personality and brilliance will carry the day. I hate to say it, but, in some cases, a criminal defendant may be better off going pro se than relying on some of the attorneys I've seen. Don't get me wrong, I have also seen a few truly brilliant, hardworking, and dedicated attorneys but they are the exception rather than the rule.

Now, unfortunately, this phenomenon isn't limited to those in the legal profession. I saw it in other fields I worked in also. Just pure laziness and wanted to make a buck the easiest way possible, whether it was the right way or not. I guess that's a symptom of our sick society. Or maybe its just human nature. I dont' know. Like I said, my comment really has no purpose or usefulness.

Anonymous said...

It has immense use to me. Thank you for your supportive and most importantly honest words.

As I have found myself at the end of a broken chain of two systems - the criminal and the medical one - I found it better to at least on the civil end go alone after I watched two supposed highly acclaimed Attorneys utterly botch my case. One went to Harvard which I have always suspected as a school on reputation alone. These two men sat on the sidelines and utterly allowed the Prosecution and a Judge who should be judging dog shows he was so clueless to allow me to lose.

As I watched my civil rights go out the window along with my savings I could not believe what I was watching. I had been warned that the PD was a useless tool of plea bargaining but this is our system... arrogant, ignorant and yes lazy.

Lazy is the definitive when it comes to both systems. Education is the third in that Bermuda triangle and on that I can say I also have experience.

It is embarrassing to think that law schools are plowing out these idiots at a rapid clip, with immense debt to the point that our system is clogged with more underemployed lawyers that could actually do something useful. And they elect to not. Why? Money, I assume.

I have paid the same lawyer now with the current PD debt I just assumed that he "negotiated" for me over 25K. The other lawyer I tried was 3K. I make 25K a year. I will file bankruptcy once the appeal is done but he walks away free and clear regardless of the outcome. I am not sure I can say the same.

He is an utter asshole and I have no respect for him or the member of his "tribe" whom I have encountered on this road to ruin. But your words restored my belief that some people are honest. Thanks for that.

Atticus said...

The Great Writ isn't so great when you shine more light on our system. But the majority of the exonerations and occasional reversals would not have happened without what? Oh yes, an attorney who listened and spent hours of uncompensated time fighting for their client. And often, it also involves a Judge who agreed with their argument and rendered a decision that could then find its way to our highest criminal courts. It's easy to dogpile the criticism on the entire profession but there are some good guys -- and gals -- without whose work & devotion, these nuggets usually would not have been found.

Anonymous said...

Atticus - the point is, these cases should never have had to go to appeal. They should have been handled properly in the first place.

He's Innocent said...

I too agree with 11/29/2014 07:00

My spouse was pushed along on that conveyer belt too. We coughed up 20k for a "reputable" lawyer in Austin who touted his former law enforcement career as a sign that he understood how the law can run amok. Not so. He stated a price for services through trial, but when we actually wanted a trial (imagine THAT!), he demanded another 10k and then removed himself. Poof! 20k gone!

Is it a surprise to anyone that his court appointed attorney wanted only to plea it out? He literally did zero research, including how to choose a jury! He had no idea how to do it! My spouse was forced into pleading out, literally at the last moment before trial began to head off further wrath from the court. And of course, he spent all of his sentence of 3 years inside, no parole. Now, he's on 10 years probation. Does the public know there are outrageous fee to be on probation? $70/mo in Bastrop County, plus $140/mo in fines. State laws recommend $25/mo for probation fees.

All for what? RETRIBUTION and MONEY. He is no danger to the community. The CJ system is not meant for imposing justice. It is meant to instill permanent poverty and subjugation living on the fringes of society. Not just for the convicted, but his family members as well due to their inability to obtain meaningful employment.
I call this Social Death. What's the justice in that?

VOTE people! Tell your lawmakers this is too much! BILLIONS of dollars are spent on incarceration in Texas alone each year, despite a falling crime rate for years. Wouldn't you prefer that money be spent on education? Health care? Pregnancy prevention? Oh wait, if we fund those, there will not be any for TDCJ in the years to come!