Tuesday, May 10, 2011

News flash: New York Times gets it wrong on exoneree compensation bill

For me, the big innocence news at the capitol today was that the eyewitness ID legislation (HB 215) got a hearing in the Senate Criminal Justice Committee while SB 122 expanding access to postconviction DNA testing got a hearing in Criminal Jurisprudence on the House side, giving both those bills good chances for passage.

What most folks wanted to talk about though was my opinion of a dramatically spun New York Times article about a fee dispute between two exonerees and attorneys who represented them in civil litigation, most prominently West Texas trial lawyer Kevin Glasheen and  Jeff Blackburn at the Innocence Project of Texas, a group for whom I'm lobbying this session. I've written up my personal views on the merits or lack thereof of the legal case here, which differ substantially from the portrayal in the Times and haven't changed since that was written. Leaving those differences in perspective aside, I wanted to correct one bald factual error at the end of the story. John Schwartz (son of Texas liberal icon "Babe" Schwartz, I'm told), wrote that:
State Representative Rafael Anchia, who sponsored the Texas measure that increased the payments to exonerated prisoners, introduced a new bill in the Legislature’s current session that would expressly prohibit the kind of contract that Mr. Glasheen is defending and allow only a simple hourly fee for helping to file the forms. “I’m closing the door on that,” Mr. Anchia said.
Anchia's bill in fact would not "expressly prohibit the kind of contract that Mr. Glasheen is defending." That's just an inaccurate, false portrayal of the legislation as it currently stands. According to an email from one of Sen. Rodney Ellis' staff, "The legislation (as it pertains to fees) only applies to 'preparing, filing, or curing' applications for state compensation under 103.051 of the Civil Practice and Remedies Code. It is not the intent of the legislation to apply to 1983 actions or mandamus actions if the Comptroller rejects someone's application, as Anchia said on the floor of the House."

But the fees in dispute with Mr. Glasheen are precisely contracts related to Sec. 1983 federal civil rights lawsuits filed on behalf of exonerees after they'd chosen to reject the then-lower levels of compensation from the state. Despite Anchia's sometimes inexplicable statements to the media, those types of contracts will not be affected by his bill, nor should they be.

To see how banning such contracts might play out, consider the case of Anthony Graves, whose compensation was rejected by the Comptroller because his case was overturned on direct appeal instead of through an habeas corpus writ on actual innocence grounds. For him, pursuing compensation isn't as easy as filing a one page form. In the end he may need attorneys willing to spend years on civil rights litigation suing Burleson County on his behalf. If somewhere in the middle of all that, we get a new Governor who pardons Graves and he applies for compensation, should his attorneys not be paid?

The problem here is that if attorneys can't take a contingency fee on such cases, if they can only charge an hourly rate, then they can only afford to take clients who can afford to pay them by the hour. Poor people - like, say, somebody who spent the last two decades in prison based on a false accusation - couldn't get representation in the tough cases. Lawyers work for fees and I didn't invent the system of civil justice, nor did Glasheen or Blackburn. That's just how it works, and in context, having been in the thick of things at the time, IMO the attorneys in the case deceived no one and did nothing wrong.


Unknown said...

You are absolutely Correct!!
I get the Times, I'm starting to wonder why. This CRAP.

Anonymous said...

Has it occurred to anyone that the prospect of having to pay these huge monetary awards creates a real financial disincentive for state and local governments to cooperate and assist in the "exoneration" of the wrongly convicted? Seems to me that in a time of strained public budgets, it creates a systems that becomes needlessly adversarial. Leave it to the greedy lawyers to screw up what should be a good thing.

ckikerintulia said...

Anon 8:01--Why the quotation marks around exoneration? Maybe tight budgets should provide some incentive to avoid wrongly convicting people in the first place. It was not greedy lawyers who created the injustice of wrongly convicting.

Paul B. Kennedy said...

The attacks on contingency fees are an attack on poor people's access to the courts to address their grievances.

Corporate clients and the wealthy can afford hourly fees. If that's the extent of one's experience with the law, that person has no clue about reality.

JohnT said...

Thanks for your input, Grits. I was awaiting them.

Anonymous said...

No one is attacking 1983 lawsuit contingency fees here. The bill seems to be based on a misperception that the justification for the claimed fees has something to do with FILING for compenstaion (a one page form), but it doesn't. The problem is that the lawyers involved are claiming millions of dollars as a contingency fee for lobbying the legislature in ways that benefitted exonerees, but the law says you can't lobby on a contingency fee. Lobbying the legislature is not the same as filing a civil rights lawsuit. The bill may not do much, but then it is very unlikely that this scenario would happen again.

Atticus said...

The NYT article was extremely poorly written and had many other mistakes in it...

Anonymous said...

I think it's hilariously ironic how the anti-death penalty left in Texas so frequently cites the New York Times as "reliable authority" for whatever abolitionist "flavor of the month" argument they are advancing. Lord knows, the Times is no bastion of "law and order" conservatism! In fact, I don't know of any death row offender the Times didn't think was unjustly convicted or whose sentence didn't need to be overturned! That editorial bias, in and of itself, makes this article even that much more interesting. Grits, Messrs. Glasheen and Blackburn must have stepped in it pretty royally to draw the ire of the elite, liberal, "pro-criminal" East Coast establishment in this instance! Kind of makes you wonder if there might actually be some merit to this article. In any event, for a conservative, there's something particularly satisfying and humorous about watching New York liberals and Texas liberals taking pot shots at each other over which side is more credible, reliable and authoritative in their advocacy for the "unjustly" convicted. Heaven forbid that either side might stretch the truth or take liberties with the facts in advancing their claims!

Anonymous said...

It's funny when left wingers can find something in the New york Times to disagree with.

The New york Times is the Holy Script.

Thomas R. Griffith said...

Hey Grits, thanks for clearing that up.

In lieu of asking why you'd read that rag, consider the following instead:

*As a taxpayer, voter & IPOT Lobbyist - currently only DNA related claims of actual innocence are being cherry picked for consideration by the various Professor/Lawyer ran projects. If by some miracle HB 215 is passed, do you foresee these groups addressing the non-DNA, non-Death Row related claims in closed/cleared cases?

*Would you agree that in order to play the Comptroller's (Governor's) game, those currently seeking post conviction relief should do so via: through an habeas corpus writ on actual innocence grounds vs. appealing?

*The Texas Board of Pardons & Paroles 'Clemency Section' requires applicants seeking a Full Pardon - for innocence to obtain the three trial officials (Sheriff, Judge & DA) unanimous recommendations. Since there are absolutely no incentives for them to reply, the joke is on the applicant. Do you believe a Lobbyist is needed or warranted in order change this unachievable and ridiculous requirement?
As always thanks.

Gritsforbreakfast said...

11:24/12:17 - Why am I supposed to agree with the Times? Don't know where that meme comes from.

TRG, it's happening on the forensics fronts already, more than you're giving credit. Also, the Houston and UT-Austin clinics are death-penalty focused, but not the Lubbock one.

Your second suggestion would be a disastrous mistake!! Try to get out of prison ASAP if you're innocent, worry about compensation later. There are 45 DNA exonerees statewide and maybe 3-5,000 people in TDCJ who are innocent of the charges of which they were convicted. You do the odds!

On the final one, the answer is sure, who pays for it? Campaigns significant enough to change laws take time, money and skill.

10:11, if no one is attacking 1983 contingency suits, then nobody would have any beef with Glasheen. These were real suits. One or two had made it to summary judgment, while others were in various stages of investigation, deposition, etc.. Some, like Phillips, were taken on as clients soon before the Lege session and little had been done on their cases when the bill passed.

What the criticism is missing, though, in context is what people knew at the time they entered the contracts. As it does today, the law gave Phillips et. al., a choice: Take compensation or sue. Nobody could have known the compensation would be raised by the Lege and as late as March '09 Rodney Ellis still didn't think it was possible.

If the bill failed, I've no doubt Glasheen would have pursued the civil suits just as aggressively as he later pursued getting the IRS out of exonerees' pockets, and in taking cases to the Supreme Court of Texas to get compensation after a false conviction for time spent in prison on parole revocations for another charge. Exonerees received aggressive representation across multiple fronts from Kevin. In addition, quite a few exonerees took what became sizable advances to pay for housing, medical issues, transportation, etc..

That said, though I believe it's true he was hired for civil litigation, not lobbying, it's paradoxically also true that if those civil suits had never been filed, if those exonerees had never entered into those contracts with Glasheen, there might not have been leverage to pass the bill. Kevin was able to use those suits as leverage to get counties and municipalities - i.e., the people he was suing - to turn from adversaries in court to proponents of the legislation in Austin, giving the whole thing a tort-reform air, especially for the DFW delegation, that could be sold to Republicans as taking a litigation burden off local government. That hidden momentum from institutional players had a lot to do with the bill's surprising passage. Was it pivotal? I don't know. There was also a lot of genuine sympathy among legislators for exonerees. But it sure didn't hurt. It was no secret but in fact a selling point that the suits would be settled and lawyers paid on the state's dime instead of the locals.

The guys who settled existing civil suits to take the higher compensation are analogous in my mind to Moses, who never reached the Promised Land but made it possible for Joshua (e.g., Johnny Pinchback) and the rest to get there. In the future others won't have to file civil suits (unless they think they're entitled to higher compensation), but after a couple of exonerees ended up homeless on the lower amounts, those fellows chose to seek more. They got more, including a lifetime annuity, and in doing so they made history and changed the law for everybody else going forward. I'm still proud of that effort, I hope they are, and I hope this fight over money doesn't tarnish it. Nobody likes to pay their legal bills once they've won, but we all live with our choices in life, and the decision to reject statutory compensation and hire a lawyer on contingency is a choice that exonerees were and still are free to make.

Anonymous said...

No one's arguing that lawyers don't deserve contingency fees. After all except for pro bono work, they wouldn't do what they do for the destitute and poor without at least reasonable expectation for financial rewards. And obviously this wasn't pro bono activity. Far from it. The problem is their approach was unorthodox (lobbying the legislature) and they also overreached. Too bad someone who didn't want money for it couldn't have lobbied the legislature. Perhaps an entity like the Texas Innocence Project...Oh, wait...that entity is in bed with Glasheen,

Gritsforbreakfast said...

12:40: The Innocence Project of Texas DID lobby for the bill, though I can tell you firsthand (I was their lobbyist) that without Glasheen's high-level GOP connections it wouldn't have passed. What you seem to fail to understand though is that that fact doesn't change the contract those exonerees had previously entered with Glasheen to file Sec. 1983 lawsuits. They chose to sue rather than accept statutory compensation. Nobody forced them and they all got more money by hiring Glasheen than they otherwise would (with the possible exception of Stephen Phillips, who spent hundreds of thousands of dollars on attorneys fees to sue Glasheen and now may lose his annuity over a new cocaine charge).

Bottom line: Nothing IPOT did or could have done would affect those contracts one way or another. When you hire a lawyer and he gets you the money you're seeking, expect to pay him.