Budget cuts threaten new office for capital habeas writs

Because it's in its startup phase, Texas' new Office of Capital Writs created in 2009 is in danger of falling victim to the budget crunch because its caseload appears small compared to its budget - mostly because its been in business such a short time, but also because of the declining number of death sentences statewide, the Austin Statesman's Chuck Lindell reports. In some quarters (and I'd heard similar rumors elsewhere) that makes the new office appear expendable or at least a potential target for significant reductions. Though inevitably it won't be long before their volume increases, legislative budget decisions will be made in the next few months and for now the per-employee caseload appears sparse. The new West Texas capital public defender startup, I understand, faces similar concerns about generating enough volume to justify the office in the near-term, though long-term most folks agree the so-called "murder insurance" they provide will save participating counties money if and when they pursue capital cases.

In the scheme of Texas' expected 11-figure budget gap, the OCW's budget barely amounts to a rounding error, but I wouldn't be surprised to see cuts proposed just because cuts will be proposed to everything. Still, it's worth remembering why these institutions were created: Texas' Court of Criminal Appeals has been on the repeated losing end of a running battle with the US Supreme Court over capital punishment, with many dozens of cases delayed for years. Errors by incompetent counsel ranked high among the reasons for those delays, as bill authors Rodney Ellis (D-Houston) and Robert Duncan (R-Lubbock) described in this remarkable introduction to their 2009 bill analysis:

Extensive studies, research by the Texas State Bar, and investigative news reports have revealed pervasive flaws in the quality of legal representation for indigent defendants in the state habeas system.  For example, a review of the state habeas cases decided between 1995 and 2002 revealed that one out of three death row inmates face execution without having their case properly investigated by a competent attorney.

Research by the Texas State Bar has revealed troubling recurring flaws that undermine the integrity of Texas' capital post-conviction process.

This lack of quality legal representation is a result of how Texas appoints attorneys to represent indigent defendants in state habeas cases, and the lack of regulations on attorneys eligible to be appointed to these cases.  Under current Texas law, attorneys in capital habeas cases are appointed by the district court from a statewide list of eligible lawyers maintained by the Texas Court of Criminal Appeals.  Because the Court of Criminal Appeals has interpreted the Article 11.071, Code of Criminal Procedure, reference to "competent" counsel as related to only the qualifications of the lawyer prior to appointment, the performance of Texas capital habeas lawyers is neither regulated nor monitored by any court or governmental agency.  Thus, if the habeas representation amounts to the functional equivalent of a lawyer sleeping through trial, the lawyer is nonetheless reappointed to more cases and the death-sentence inmate has no remedy or recourse.

The list of lawyers appointed to habeas cases has been, and remains, populated by lawyers who are clearly unqualified, including: lawyers who were serving probated suspensions from the practice of law for neglecting their clients; lawyers with no capital experience; lawyers with no habeas corpus experience; lawyers with mental illness; lawyers who abandoned their death-sentenced clients and waived all federal review of the case because the federal statute of limitations expired (including one lawyer who joined the prosecutor's office and never informed her client); and lawyers who filed write with no cognizable claims (including lawyers who filed verbatim copies of the inmate's direct appeal brief and even lawyers who were deceased).

Despite these failures to provide adequate legal representation, there are no consequences for the attorneys who perform incompetently.  They are not removed from the list of those eligible to take these cases and the disciplinary committee of the State Bar does not feel it can adequately police attorney performance in these complicated cases.  Instead, the same lawyers providing inadequate representation are reappointed in case after case.

When lawyers failed to understand the nature of habeas proceedings, fail to carry out their statutorily mandates duty to thoroughly investigate the cases, or otherwise fail to represent their clients, death sentences are unreliable because mistakes are not caught and corrected.  A 2002 study revealed that lawyers failed to investigate and present non-record evidence in 39 percent of Texas capital habeas cases.  To put it starkly: if six of the Texas death row prisoners who were exonerated and released went through the current system, at least two would have been processed  through and executed without investigation into their cases and there would be no outward indication of the miscarriage of justice.

Providing adequate legal representation is especially important in habeas proceedings, because state habeas represents the most critical stage of the appellate process in death penalty cases: it is the "safety net" designed to catch the innocent and those treated unfairly by the system.  Habeas proceedings are a prisoner's only opportunity to raise claims of prosecutorial misconduct or ineffective assistance of trial counsel, or present evidence not developed or discovered during trial, including new evidence of innocence.

Not only are state habeas proceedings the appropriate forum for submitting new evidence, they are—in all but the rarest of circumstances—a prisoner's final opportunity to do so.  If a claim for relief is not presented in state habeas, it cannot be considered by the federal courts except in extraordinary circumstances—even when the claim is clearly meritorious and undermines all confidence in the outcome of the trial.  Any omissions by habeas counsel permanently foreclose both state and federal review of any issues or facts overlooked by counsel.

Under current law, attorneys in capital habeas corpus cases are appointed by the district court from a statewide list of eligible lawyers maintained by the Texas Court of Criminal Appeals.

S.B. 1091 creates a Capital Writs Committee and an Office of Capital Writs.

Those problems won't go away just because the budget for capital habeas writs is cut, and the US Supreme Court won't cease it's fairly routinized bench slapping of the Texas Court of Criminal Appeals in capital cases unless our state's judiciary starts dotting its i's on death-row habeas applications. (Anthony Graves,  for example, had his death case overturned on a federal habeas application after he'd been denied state habeas relief at the Texas CCA.) Keeping offenders on death row for decades of appeals isn't cheap and if the state can get these things right the first time, maybe the US Supreme Court would stop sending so many capital cases back  to Texas for do-overs.