Tuesday, June 28, 2016

Elsa Alcala's voice in the wilderness on Texas' lack of IAC recourse

Like a black-robed, Latina John the Baptist, Texas Court of Criminal Appeals Judge Elsa Alcala has been openly calling out her colleagues and the Legislature for failing to ensure remedies exist for "ineffective assistance of counsel" claims - in other words, when one's lawyer didn't do their job.

In a series of dissenting opinions, including Ex parte Garcia, Ex parte Pointer, and Ex parte McCuin, Alcala lamented the structural reasons why a) defendants cannot raise ineffective assistance claims on direct appeal and b) when they can raise the claim for the first time in a habeas corpus writ, they are not entitled to a lawyer. To Alcala, this creates a Sixth Amendment crisis. Judges Yeary and Keller have  taken on the task of rebutting Alcala on behalf of a narrow majority. (In this instance, Judge David Newell sided with the government-always-wins bloc on the court, giving them five votes.) TDCAA's case summary described the situation as:
a dispute among the members of the court over how it should deal with applications for post-conviction writs of habeas corpus filed by pro se defendants. Such applications are often incorrectly filed and could be easily corrected by appointed habeas counsel—hence, the dispute that can be more fully explored in several opinions authored by Judge Yeary on one side of the dispute and several opinions authored by Judge Alcala on the other side. The dispute is actually quite compelling but probably only to post-conviction attorneys. For the moment, Judge Yeary’s position is largely prevailing, but stay tuned to the next session of the Texas Legislature to see if that changes.
Grits thinks TDCAA underestimates whether this issue is compelling "only to post-conviction attorneys." In essence, Alcala is calling out a fundamental flaw in Texas' provision of Sixth Amendment right-to-counsel for every indigent defendant under its yoke. Thanks to crises in Louisiana and elsewhere, most of the recent attention paid to indigent defense and public defender offices has related to funding for those services. But ensuring quality is at least as important, and Alcala is complaining that poor defendants whose appointed lawyer did a crappy job effectively have no recourse. She's 100% right.

Here's what's going on: The CCA appoints counsel upon request to inmates filing habeas writs only after the court has voted to grant them a hearing at the trial court level. But defendants have no right to counsel to help write and file the writs in which they seek to convince the CCA to grant such a hearing. So inmates frequently file "pro se" writs with the court, meaning they write them themselves, often by hand on lined yellow legal pads, with no attorney to help them. The court receives thousands such applications every year and, as TDCAA noted, they "are often incorrectly filed and could be easily corrected by appointed habeas counsel." But the CCA majority fears that would open up floodgates and boost their workload.

Who knows, maybe that's a legitimate fear? Texas courts have tolerated (encouraged?) a lot of crappy defense lawyering for quite a while. If all those cases were properly vetted, that would indeed boost their workload in the near term. OTOH, their workload may reduce to the extent that the work goes faster when writs filed by lawyers are "clean," from a legal perspective, and in a word-processed brief format with footnotes instead of a handwritten hodge-podge

Regardless, seriously incompetent lawyering deserves redress. Texas state Rep. Gene Wu, an attorney and former Harris County prosecutor, said to me once that engineers, doctors and lawyers are three categories of professionals who can seriously hurt someone, or even a lot of someones, if they don't do a good job. That observation applies in spades to indigent defense.

There's a sense in which this subject tangentially relates to the funding issues being discussed nationally. In Texas, lawyers making their living representing indigent clients must take excessive caseloads (see here and here) to earn enough to cover their student loan debt, an office, and basic living expenses. Most counties don't have public defender offices and the ones which exist handle a fraction of the total volume of indigent cases. And so most counties underpay appointed lawyers, then they get what they pay for.

Judge Alcala is watching all this occur from the very back end, after the guy with a colorable claim that his lawyer was incompetent has been finally convicted and is sitting in prison with no more appeals available to him. He scrawls out his plea for justice on that yellow legal pad and she can tell that, if the guy had an attorney and had filed the writ correctly, the facts would justify granting the writ. But the inmate wasn't a lawyer so he screwed something up, didn't make all the right arguments, didn't file it right, or on time, or whatever, and the writs are denied without ever considering the merits. Worse, the CCA rules bar the defendant from filing "subsequent writs" on the same topic, so in most cases the fellow's just screwed.

Federal courts have already recognized this problem and now allow Texas inmates to bypass the CCA regarding habeas writs alleging ineffective assistance of counsel. As Judge Alcala wrote in Ex parte Garcia, "Given its recognition that an initial state habeas proceeding undertaken without effective assistance of counsel would effectively deprive Texas defendants of any meaningful review of their ineffective assistance claims, the Supreme Court crafted a federal equitable remedy that would permit such claims to be raised and adjudicated for the first time on federal habeas review." In other words, right now defendants can bypass the CCA in ineffective assistance claims and appeal directly to the federal courts. Alcala's right to take that as a snub - an indication federal courts don't think Texas can handle its business. What's unfortunate is that only she and Judge Johnson, who is about to leave, seem to think the CCA should rectify the problem.

Calling out like a voice in the wilderness, Judge Alcala has boldly and accurately insisted that this stance leaves defendants with no redress at all in Texas courts when their appointed counsel performed incompetently. As with any latter-day John the Baptist, she gets little contemporary credit for this stance. And there are those who would see her head on a platter (picturing Michael Keasler as Salomé's mom). But until that day, she seems intent on speaking her truth and standing up for fairness on these questions, even on occasions when she must stand alone. Bully for her.


Shannon E said...

(FYI, John Stride retired years ago. Those commentaries are provided by other prosecutors now.)

Gritsforbreakfast said...

Thanks, Shannon. Fixed it in the post.

Anonymous said...

Okay, time for a little crowd sourcing. Can anyone advise as to the fee collected by appointed counsel representing an indigent for a misdemeanor case? A felony case? If the case isn't pled, what does the payment rise to for the trial work and time? I expect it to vary from county to county but have no idea. I heard under a hundred dollars for a misdemeanor in Harris and Ft. Bend but don't know if that is accurate. Also any idea as to who determines the fee. Courts or county commissioners. My thanks in advance.

Anonymous said...

Alcala is a breath of fresh air, but unfortunately that's not enough to clean out the Augean Stables here. Indigent defense in Texas is still tragically deficient. Look, for example, at Irving Garcia, WR-83,681-01, whose case was decided on April 6 by the CCA - a Mexican national who was (a) denied consular access and (b) denied an interpreter because his attorney was incompetent and deliberately keeping his client in the dark about what was going on. Consider all the cases running through the CCA where counsel failed to file a notice of appeal, failed to advise their clients about the possibility of discretionary review and so on. Consider all the cases where counsel has been found to have performed deficiently but the inmate fails to get relief because the courts claim they could not prove prejudice caused by their attorney's failing. And that's just the tip of the iceberg because those are cases that made it to a public, published opinion - the real bodies are probably buried in the clerk's offices of every county throughout the State.

Anonymous said...

Anonymous seeking information about attorney fees - the rates should be published on the website of the Texas Indigent Defense Commission. That website - like all the Texas court administration websites - seems to have been made deliberately difficult to use .... but look for "local plans" and then select the name of the county you are interested in.

Anonymous said...

Anon 9:48

My thanks for the link. Interesting how many don't have the full data posted such as Fort Bend & Harris County and their misdemeanor fees. Again my thanks.

Unknown said...

Does anyone know the case citations on exparte Garica Pointer McCuin...Ty

Jennifer Vargas said...

Does anyone know the case citations on exparte Garica Pointer McCuin...Ty