Monday, February 16, 2009

Movie 'Writ Writer' to be screened at Texas capitol: How could the Lege help writ writers help innocent people get out of prison?

Quite a few of exonerated clients of (my employers at) the Innocence Project of Texas , most of whom have been freed based on DNA evidence years or decades after their original conviction, were ironically labeled "writ abusers" by the courts for their frequent, post-conviction habeas corpus appeals challenging their final conviction.

Those engaged in legislative oversight, legal advocacy or even adjudicating habeas writs should take advantage of an opportunity next week to see the film, "Writ Writer," if you haven't already. Learn more about the post-conviction writ process from the perspective of prisoners filing the documents and the in-prison writ writers who assist them. Via email I'm told that:
Representative Elliott Naishtat and the Austin Film Society are presenting a special screening of "Writ Writer" on Friday, February 27th, at 2:00 p.m. in the Texas Capitol Extension Auditorium, Room E1.004.

There will be a Q&A afterward, attorney Steve Martin (former chief counsel to the Texas Department of Corrections) will be joined by attorney Scott Medlock of the Texas Civil Rights Project, poet and prisoner rights activist Antonio Renaud, and of course Susanne Mason, the director and producre of "Writ Writer." We will discuss current prison issues with emphasis on prisoner litigation and reentry. Rep. Naishtat has invited legislators and their staffs, so if you haven't yet seen "Writ Writer" this is a great opportunity, and it's free.

For more information about the film, please visit
I've not yet seen this, so I'm definitely going to attend. The documentary focuses on storied Texas writ writer Fred Cruz, now deceased, whose quixotic career as a writ writer behind prison bars helped spawn a fascinating and rarely examined legal subculture.

Whenever I think of a pro-writ writers' legislative agenda, I think of Brandon Moon, a DNA exoneree from El Paso now living in Missouri; the forensics in his case were botched by the DPS crime lab in Lubbock. Once in prison, he took up the writ writer's mantle, telling the Senate Criminal Justice Committee when he got out that:
First, Texas prisoners have no right to receive information about their case, or anything else, under the Texas public information act, so Moon couldn't get access to the information he needed to combat the prosecution's claims. ...

Second, inmate writ writers just aren't taken seriously in the courts, he said, and Moon couldn't get hearings on most of his motions before Sen. Ellis' new law allowed the new DNA testing. The New York Times quoted Moon on this point (if a bit out of context): "I had no method of enforcing procedures," he said. "I could file all the motions I wanted, but I couldn't get heard."
While many guilty people file similar writs of dubious merit, and surely it's difficult for judges to separate the wheat from the chaff, it's also true that within the flood of pro se habeas writs headed to the Texas Court of Criminal Appeals each year, some proportion of them, as was the case with so many of the "writ abusing" DNA exonerees, are actually innocent but cannot to a certainty prove it, or have already used up their appeals.

The Legislature has never seriously considered Moon's primary suggestion to the Senate Criminal Justice Committee in Houston now four years ago: Give prisoners open records access to information about their own cases. Presently prisoners have no rights to request information under Texas' Public Information Act, about their own cases or anything else.


Anonymous said...

Saw this on Independent Lens here a while back. Interesting story. I wasn't nearly as impressed by this as Tulia, Texas, but it has a good point to it and is worthy of watching.

Anonymous said...

So it's free to the public?? Sounds like an extraordinary topic to explore

Anonymous said...

They could fund positions at State Counsel for Offenders for attorneys dedicated specifically to 11.07 habeas work.

Anonymous said...

Rev. Charles here:

Gary Gardner with the assistance of Alan Bean basically wrote the writs that freed the Tulia 35. NAACP LDF put the writs into legalese, CCA said we need to hear more, the dream team came into action, and the rest is history.

Anonymous said...


I am not 100 % sure of this, but I believe that the now infamous Ruiz-Estelle lawsuit against TDC (Texas Department of Corrections), which opened the door for the DOJ and WW Justice's rule over Texas Prisons System for many years was brought about because of Mr. Ruiz' skill as a prison writ-writer. If that is accurate, then his writ-writing skills ultimately resulted in the Texas Legislature being forced to spend millions of dollars that they would likely never have spent voluntarily on the prison reform efforts under WW Justice's orders. Might be one reason for the Legislature's hesitancy to support anything that could give writ-writers more bullets for their legal guns.

Gritsforbreakfast said...

To 3:16- Yes, it's free to the public. And the auditorium is pretty good sized so there ought to be plenty of room.

To 4:00 - that's a really good point, and an excellent suggestion.

Rev. Kiker, it's true - Gary G is one of the only free-world amateur writ writers I've ever heard of, and boy, did it make the professional lawyers (who came in later) mad! :)

JTP, I think you're right about the Ruiz case, but with so many exonerated men labeled "writ abusers," not to mention stories like the Tulia case, more recent history perhaps casts post-conviction writs and those who write them in a different light. Cultural products like this film are part of how society rethinks history's lessons, including at the Lege.

Anonymous said...

Grits, I know it made one (who will remain unnamed) really mad. But this same one did not want to go the writ avenue, but rather the civil suit. But it was the writ which freed the defendants. And he got his crack at the civil suit later. So later the one who got mad got glad.

Rev. Charles

Anonymous said...

The legislature could totally change structure of the current Staff Counsel for inmates. It is now and almost always has been a joke. As long as the legislature allows the prison to hold the purse strings and control over that public defenders office those well meaning lawyers will continue to have their hands tied. That office should be run by an independently appointed board of directors totally outside the arms of the prions, and should be allowed to engage in civil litigation against the prison.

Today my opinion is that office is a wreck. Talk about an example of the fox guarding the hen house. That's the current Staff counsel, and that's what is happening now.

Bill Habern

Anonymous said...

To Bill Habern and all others interested:

I am one of those "well meaning" attorneys working at State Counsel for Offenders (you couldn't be more arrogant). First, I don't know where you get off being an expert on our office Bill when you have never, to my knowledge, worked there. Two members of your firm have, some five years ago, but you hardly have any knowledge of what goes on there now. You have been on a campaign to bad-mouth this office on TCDLA and now Grits.

In the interest of full disclosure, you should add to your post that it would benefit your firm greatly to have SCFO dissolved, given that you are located in Huntsville and do as much prison work as possible. One of your partners campaigned heavily to have SCFO priviltized, the presumption being he (and I guess now, your office) would pick up the contract.

SCFO has its problems, as does any law office and any public agency. However, my hands have never been tied when it comes to representing my clients. I can personally attest that I, and every other lawyer engaged in trial work at SCFO, would leave that office if we felt our work was being controlled by TDCJ. SCFO's situation is not so different from a public defender's office whose budget is controlled by the county, or by an appointed lawyer who must beg and scrape before a judge for funding. We do not sue TDCJ - no different than any other firm that limits the type of law it practices.

I don't know why you have set out on this smear campaign, but you can drop the crap Bill. Sorry if this post has misspellings or is not well organized but I'm mad as hell. We work very hard to represent people in very difficult situations. We give them everything we have.

Anonymous said...

I'm certain that the above commenter's statements have some basis in reality, perhaps the governing structure of State Counsel could be better. But I also know some of the attorneys there, all of whom are unquestionably and tirelessly dedicated to representing already convicted felons against all odds and in oftentimes hopeless factual circumstances.

Their hard work and sacrifice deserve better than to be written off as a joke. I am confident that if the Board of Pardons and Paroles got in the way of their defense of cases -- which is what the commenter seems to suggest -- they would happily tell the Board to go to hell.

Anonymous said...

As an attorney with State Counsel for Offenders, I thought that I should add my thoughts to narrow the broad stroke painted by Bill Habern.

I have worked at the office for a couple years in felony criminal representation, civil commitment defense, and the appellate section and cannot think of any times I have been told I cannot do something I believe is required by my representation. If I ever do get told I cannot represent my client -- I would be more than willing to fall on my sword and face the consequences from the Board of Criminal Justice. Hopefully, this is what every attorney in the office would do. That includes those who worked there in the past such as Scott Pawgan and David O'Neil -- two fine attorneys who moved on to Mr. Habern's office. Hopefully his attorneys did not ever take employ as foxes guarding the hen house.

Are there changes that could be made to the structure? Probably. I also think there are changes that could be made to the appointment system where the elected judge has incredible control over the purse strings to cripple the appointed defender. I also think there are changes that could be made to the various county public defenders offices where a wild county commissioner can hamstring an office.

Does that mean that the entire system is a wreck and the attorneys are just foxes guarding the hen house? I think that's an extra cynical view of the system. I am able to fight for my clients just like you do Mr. Habern. If it's a joke -- I'm glad that on occasion the prison system isn't laughing. Our office has had some great victories from the well-meaning lawyers who must be fighting with their legs and feet like something out of Monty Python.

Our attorneys are proud not just of the not guiltys, the reverse and renders, and the times we get split verdicts or low-end punishment range verdicts. We are also proud of representing each of our clients whether we win or lose and fighting for their rights with the same vigor every attorney ought to fight for theirs. And no, I don't think our hands are tied.

Perhaps a reorganization as you suggest would help broaden our influence. But for now what we have is attorneys doing everything from writs to civil commitment defense to felony defense and more. And each time we proudly represent with the same vigor and freedom from restraints just like you and your attorneys. If not, I can guarantee you I wouldn't sit there with my hands tied.

Anonymous said...

As one of the "well-meaning" lawyers at SCFO who happens to handle issues on various writs and motions NPT, I don't think Bill Habern's analysis is in the least accurate. While we are certainly limited in number and we don't really handle actual innocence claims, (we refer those onto the Innocence Project) we do plenty of interventions in jail-time and sentencing issues. We have the advantage of pursuing overall strategies and picking and choosing which writs to file, when. If Mr. Habern feels we inadequately deal with inmate post-conviction issues, he is of course able to provide pro-bono services and attempt to right any injustices he sees.

The easy answer is to blame SCFO, not the overly aggressive and conviction-happy, broken Texas Criminal Justice System.

Gritsforbreakfast said...

I see Grits has a few readers at the State Counsel for Offenders! Hi, folks!

Anonymous said...

Hmmn. Well, while not directly related to the opening post, but more to the question raised about "motivation" and competency, let me say that I think that there are Lawyers, and then there are "law-yers". I have worked with many lawyers over the years. Many who worked for federal agencies doing free or low cost legal work for the underdogs, who could not afford the "big guns". Many lawyers who start out in the field take such job opportunities to build a resume, however, many more do it because it is what called them to law. Something called "Justice for All". Once upon a time, I remember a proceeding in which Jeff Blackburn was representing the accused. I don't recall if it was a pro-bono case or not. It doesn't matter, because paid or not, he acted like F. Lee Bailey, railing against any injustices he thought went against the accused. Even the TYC Ombudsman, Will Harrell, (though not practicing law), seems to have this same honorable motivation of seeking justice for the underdog. My point is that even though "law-yers" can pull in big money, not all members of the profession are in the practice of Law for that reason, and that is something that is admirable, even for a short time.

Anonymous said...

Yes, Scott. You have quite a few attorneys from SCFO that follow Grits For Breakfast. We are called to defend those that most in society find indefensible. Many of us have at one time made lots of money and could work elsewhere. Others of us are new lawyers and figured out early on that we all have a passion for public interest work. Budgets constrain anyone and the sheer number of people in TDCJ limits the amount of cases we can take. However, we do the best we can with what we have. We are a group of defense attorneys that work hard and care about our clients. I handle very complex and serious cases everyday and have never felt like my career choice is a joke. I enjoy your blog. Keep up the good work.