Lege may still approve Office of Capital Writs

I may have been critical recently of Rep. Aaron Peña's leadership of the Texas House Criminal Jurisprudence Committee, but he can still help pass an important bill that Texas really needs - HB 1267, which would improve frequently dismal legal representation for indigent capital defendants.

The original House bill was pretty non-descript, requiring only that attorneys who provide indigent defense services be paid more promptly. But the Senate approved several amendments, the most important of which by Sen. Robert Duncan added the contents of SB 1655, which died on the House calendar Tuesday night. This language implements recommendations by a State Bar task force (pdf) to ensure that defendants sentenced to death get competent representation in habeas corpus proceedings.

Duncan's amendment creates a small office (~3 attorneys) to handle new state habeas corpus appeals in death penalty cases. Except in cases in which a conflict exists, this new "Office of Capital Writs" would replace the current system, under which judges appoint private attorneys from a list maintained by the Texas Court of Criminal Appeals. Funding for the office would largely be offset by redirecting money already earmarked for compensation of appointed lawyers under the existing system.

Recent investigative reporting by the Austin Statesman (see here and here) documented how incompetent lawyers — often with a very limited understanding of this complex area of practice — have repeatedly been appointed to death penalty habeas cases, only to fail their clients. The bill fixes a grossly flawed system that has routinely appointed incompetent lawyers when lives are on the line.

Texas law already promises death penalty defendants competent lawyers for what is arguably the most important phase of appeals: state habeas corpus. However, the system has broken down in large part because of an utter lack oversight and accountability for this important legal work. Lawyers who failed to meet their most basic responsibilities (such as meeting their clients or conducting a thorough investigation) all too often suffer zero consequences for their failures. Some have turned in appeals rife with gibberish, others cut and paste irrelevant sections from other appeals, often failing to raise important issues altogether.

Many states successfully avoid these problems by delivering habeas services through a small, dedicated state office. Such system ensure better training and oversight and provide a clear mechanism for holding attorneys accountable for the quality of their work (or lack thereof).

The prosecuting attorneys who handle state habeas corpus appeals in major Texas jurisdictions already are part of dedicated units in those district attorneys' offices. Such a system generally ensures greater professionalism and consistency in the quality work—both of which are clearly lacking in our current system of state habeas defense.

Jim Lampley from Peña's office said his boss intends to request a conference committee because several House members and the Governor have expressed objections to other portions of the bill. However, he said, so far nobody seems to have problems with Duncan's amendment and he thought it should be "safe."

Here's hoping that's right and Peña successfully defends Duncan's amendment in the conference committee.