Monday, April 20, 2009

Poor representation in capital cases rewarded with new appointments

With judges now fully empowered, according to the 5th Circuit, to exclude attorneys they don't believe are qualified, there seems to be little excuse for tolerating the kind of attorney performance described by Lise Olsen in a Houston Chronicle piece this morning, "Death row lawyers get paid while messing up," April 20):
Texas lawyers have repeatedly missed deadlines for appeals on behalf of more than a dozen death row inmates in the last two years — yet judges continue to assign life-or-death capital cases and pay hundreds of thousands in fees to those attorneys, a Chronicle records review shows.

Missing deadlines means their clients can be automatically denied constitutionally mandated reviews before their execution. Houston lawyer Jerome Godinich missed three recent federal deadlines, the Chronicle reported in March. One client was executed in February after the federal appeal was filed too late. In March, the 5th Circuit Court of Appeals chastened Godinich for using the same excuse — a malfunctioning after-hours filing machine — for missing another deadline for a man still on death row.

A recent review of the Harris County Auditor’s billing records and district court records shows Godinich remains one of the county’s busiest appointed criminal attorneys, billing for $713,248, including fees for 21 capital cases. He was appointed to handle 1,638 Harris County cases involving 1,400 different defendants from 2006-March 2009, court records show.

He refused comment.

Godinich is not the only attorney to miss death row deadlines. A San Antonio lawyer failed to file four state appeals on time, according to opinions last year by the Texas Court of Criminal Appeals. A Fort Worth lawyer has missed both state and federal deadlines in at least five recent cases, though he sought and was granted more time to prepare on four of them, according to court records reviewed by the Chronicle.

The failure to file such appeals, called writs of habeas corpus, means death row inmates risk missing their last chance to submit new claims of innocence or evidence that could alter their conviction — or death sentence. State judges can be flexible, but federal judges follow tight and sometimes confusing deadlines.

Only one of three Texas lawyers who repeatedly missed such death row deadlines has faced fines or been forced to forgo fees by judges.

There's little doubt representation in capital cases has improved in Texas since the passage of the Fair Defense Act, but accountability mechanisms for excluding poor attorneys clearly haven't yet matured to the point where judges have clear guidance for when it's appropriate to reject or remove attorneys from the appointment list.

RELATED: Gideon has more.


Anonymous said...

Pperhaps some of these problems will be addressed this session- SB 1091 would create a capital writs office in FY11 to handle the majority of death penalty writs. The remaining cases would have to be to attorneys on a list approved and maintained by the presiding judges of the nine administrative judicial regions, rather than by the Court of Criminal Appeals as is the case now. The bill has passed the senate and is up in House Criminal Jurisprudence on Wednesday.

SB said...

The true meaning of friends of the court.

Anonymous said...

A few comments: (a) one of the main problems with the existing regime has been the presumptive cap on funding of 25,000, which simply is not enough for a solo practitioner with overhead to do the comprehensive job that a proper state habeas writ necessitates. Anything above the initial 25K comes out of local funds, and has to be approved by the same district court judge that tried the case initially - scarcely a surprise that many judges refuse further attorney fees, or anything like the necessary funding for reinvestigation of the case. Yes, 25k may sound like a lot of money, but when overheads are deducted this is a very unprofitable area of work, not to mention the fact that it may involve challenges to the performance of trial counsel, the prosecution, trial judge and jury - not a way to make onesself popular. Inevitably, some of the people on the existing CCA list of approved counsel are bottom feeders.

b) Although the TX bar provided guidelines for the conduct and duties of counsel in capital cases a couple of years ago (and hats off to you if you can even find them on the state bar website!) The CCA has done nothing to ensure those standards are upheld and some attorneys, such as Suzanne Kramer, have manifestly failed to e.g. communicate with their clients or properly reinvestigate cases as is required by the guidelines. There is no mechanism for enforcing the guidelines, or even the statute governing state habeas corpus proceedings. That statute specifically requires counsel to ensure that if federal habeas counsel is needed, representation should be sought for the client as soon as possible and the client's interests protected. Clearly, the likes of Jerome Godinich and Jack Strickland have failed to do that, but there has been no action from any quarter to sanction them, even when their clients have been executed because of the lawyer's tardiness.

(c) A state wide death penalty writ office may well be the best answer to the problem of state habeas representation, but one will need to keep an eye on its funding and whoever gets placed at its head. Heaven forbid that the CCA judges get to pick one of their croneys who will only ensure business as usual.

(d) If the CCA actually want to do something about restoring their own credibility, a great place to start would be to provide Juan Castillo, one of the defendants named in the Houston Chronicle article, a new lawyer to give him a proper chance at a state writ. His trial counsel were so bad that he fired them mid-trial and went pro se. His appellate counsel only raised four feeble issues on appeal, and then his state habeas counsel couldn't even file on time and in the right place. Somewhere along the way he should surely get at least one competent and committed lawyer - but by the time his case gets to the Fifth Circuit it will be too late for him, because of the restrictive nature of federal habeas review.