Don't Lessen Qualifications for Lawyers in Death Cases

Texas' "sleeping lawyer" death penalty case has become an international laughingstock, and for years, lawyers like Ron Mock provided such shoddy representation to capital defendants, they gave the entire Texas criminal justice system a black eye.

So why would anybody want to weaken qualifications for lawyers in death penalty cases? You can find out by watching (live stream starting 2 p.m. CST) the Texas House Criminal Jurisprudence Committee this afternoon take up a bill by its chairman, Rep. Terry Keel, R-Austin. Perhaps he'll explain. His HB 268 would weaken qualifications for capital attorneys, when they need to be strengthened, and capital defense better funded.

Just think how much time and money is wasted when a defendant's conviction is overturned because of ineffective assistance of counsel, not to mention the discredit such cases have brought onto Texas courts! Keel's bill would push the state's dysfunctional capital punishment system even further down the wrong path.

ACLU of Texas lege team member Andrea Marsh will be testifying against HB 268 later today, and I thought I'd share some details from the fact sheet she's distributing to committee members. I think it makes some strong points. With the federal courts already engaging in ever-more-frequent smackdowns of Texas death penalty cases, we need to make protections for capital defendants more rigorous, not loosen requirements. Here's the meat of ACLU of Texas fact sheet on the subject:

H.B. 268 Weakens Texas Fair Defense Act (FDA) Qualification Requirements for Capital Trial Attorneys: This is a Step Backwards and Will Allow for Appointment of Unqualified Lawyers

Lowering the current FDA standards for attorney qualifications in death penalty trials (which were adopted after much consideration and input from stakeholders) represents a step in the wrong direction and jeopardizes the improvements to capital representation that are beginning to materialize under the FDA.

• It is unwise to allow ex-prosecutors to be immediately eligible to serve as lead counsel in capital cases. Given recent Supreme Court opinions regarding the critical role of mitigation evidence in these cases, lead counsel in capital cases must be skilled in investigating, developing, and presenting their clients’ social history and other mitigation evidence. Because prosecutors do not develop social histories, and likely do not have experience in developing mitigation evidence, the wiser course is to have ex-prosecutors develop this skill set by serving as second chair defense counsel in at least one death penalty case before being given lead counsel responsibilities.

• Allowing ex-prosecutors to immediately qualify for lead counsel appointments will render meaningless the requirement that lead counsel “exhibit proficiency and commitment to providing quality representation to defendants in death penalty cases,” for they will have had no experience in providing representation to death penalty defendants.

• The requirement that an attorney must handle a “significant number” of felony trial cases before receiving a first chair capital appointment was a carefully considered element of the FDA. Attorneys who have some, but not significant, experience in felony trials should not be permitted to serve as lead counsel in capital cases. The wiser course is to have these less experienced lawyers serve as lead counsel in additional serious felony cases before being given lead counsel responsibilities in a capital trial.

H.B. 268’s New Attorney Qualification Requirements for Capital Appeals Are Too Low

H.B. 268 eliminates most of the capital-specific qualifications currently required of attorneys seeking direct appeal appointments in capital cases, with the result that an attorney who has never worked on a capital case, either as defense counsel or as a prosecutor, may be eligible for appointment as lead counsel in a death penalty appeal. The bill specifically deletes the mental health/forensic expert witness experience and the mitigation evidence experience currently required. Weakening the FDA criteria in this manner will allow the appointment of direct appeal lawyers who have no experience handling two issues central to almost every capital appeal: mitigation evidence and forensics. These less-qualified lawyers should serve as second chair counsel before being given lead counsel responsibilities.

H.B. 268 Lists New Qualification Standards for Capital Habeas Appointments That Will Cause Unintended Consequences in Federal Court

H.B. 268 will have dire unintended consequences. By articulating objective attorney qualification standards, Texas would be the first state in the country to qualify for federal “opt-in” status under the controlling federal death penalty statute (AEDPA). This “opt-in” status would cause truncated federal habeas process – including cutting the filing deadline in half and allowing only one stay of execution regardless of the issues in the case. Texas is the only state in the country to have executed inmates (at least four) whose attorneys missed the current federal habeas filing deadline. Given the current pace of executions, Texas does not need to speed up the appellate proceedings further.

The New Attorney Qualification Standards Listed in H.B. 268 Will Not Improve Quality of Capital Habeas Representation

The standards will not cause a meaningful change in the quality of representation, as many lawyers who have historically not conducted investigations, missed capital habeas filing deadlines, exhibited other poor performance, or been subject to disciplinary sanctions by the State Bar will remain eligible to take these cases.

H.B. 268 Deletes the Current Requirement That There Be a Master List of Attorneys Qualified in Capital Habeas Representation, Which Will Result in Inconsistency

This statute does not require either the Court of Criminal Appeals or the Task Force to maintain a list of qualified attorneys – and, therefore, would allow individual judges to appoint attorneys of their choosing. This will create inconsistent enforcement of the standards across the state.

• Better Solution: Require attorney performance standards and mandate that the entity responsible for maintaining the list of qualified attorneys consider an attorney’s past performance when evaluating whether to place, retain, or remove an attorney from the eligible list.

H.B. 268 Fails to Address the Critical Issue in Capital Habeas Representation, Which Is Attorney “Competence”/Remedy

Under the current Texas Court of Criminal Appeals ruling, attorneys need not perform competently in capital habeas proceedings. This ruling thwarts the clear legislative intent behind the 1995 amendments to article 11.071, which was to provide counsel who would perform the duties articulated in the statute. The CCA’s ruling rendered those duties unenforceable. Currently, there is no remedy available at all even if an inmate can prove both that his lawyer was incompetent in his particular case and that but for his lawyer’s incompetence he would have filed meritorious claim.

• Better Solution: Provide a limited remedy for inmates who can prove by clear and convincing evidence that they received incompetent representation and that, but for the failures of their lawyer, they would have presented a claim that would have resulted in relief.