Panetti dissents lament failures of habeas corpus for the indigent

The Texas Court of Criminal Appeals ruling that made the biggest national headlines this week was their decision to kill mentally ill capital murderer Scott Panetti. Nearly all the attention focused on Judge Tom Price's surprising John Paul Stevens impersonation - an on-the-way-out-the-door declaration that the death penalty should be abolished after personally authorizing hundreds of executions on the court. Talk about living with regrets!

I'll leave the death penalty pro and con debate to others (and would thank commenters to do the same). Instead, the most interesting part of Price's dissent to me was his discussion of innocence cases, DNA exonerations and the lack of funding for attorneys to file habeas corpus writs for indigent defendants. Price wrote:

Perhaps more importantly, society is not less convinced of the absolute accuracy of the criminal justice system. A 2012 study by the University of Michigan and Northwestern University law school ranks Texas number three nationally in wrongful convictions over the last twenty years, behind Illinois and New York. ... In my time on this Court, I have voted to grant numerous applications for writs of habeas corpus that resulted in the release of dozens of people who were wrongfully convicted, and I conclude that it is wishful thinking to believe that this State will never execute an innocent person for capital murder. ... There is no rational basis to believe that this same type of human error will not infect capital murder trials. This is true now more than ever in light of procedural rules that have hastened the resolution of applications for writs of habeas corpus and limited subsequent applications for habeas relief. This Court has seen too many initial applications for writs of habeas corpus that were filed by ineffective attorneys, and yet applicants have not been permitted to file subsequent applications to challenge the ineffectiveness of those attorneys. The lack of a guarantee of effective counsel in an initial application for habeas relief, combined with this Court's refusal to consider a subsequent writ that alleges the ineffectiveness of initial counsel, increases the risk that an innocent person may be executed for capital murder based on the procedural default of a possibly meritorious issue. I conclude that the increased danger that a wrongfully convicted person will be executed for capital murder that he did not commit is an irrational risk that should not be tolerated by our criminal justice system. (Citations omitted.)

That critique should by no means be limited to capital cases. The same procedural defect prevents lots of legitimate innocence (and other valid) claims. Most habeas corpus writs, particularly non-capital ones, are submitted pro se by inmates without the benefit of counsel. Then later when a lawyer gets involved, there are many claims precluded by failures in the first, pro se writ. Happens all the time.

Maurice Chammah at the newly minted Marshall Project wrote a piece that framed the case in terms of ambiguous standards applied to whether a defendant is incompetent to execute, declaring that "the fact that Panetti is facing a lethal injection despite a 30-year history of documented mental illness demonstrates that the ambiguities of the legal standard of 'competency' ... are far from resolved." His points are well taken, but to me, the theme of the two dissents was more about the failure of the habeas corpus process to provide an adequate remedy for systemic failures and constitutional violations for the indigent. (The majority per curiam opinion was non-substantive.)

Judge Alcala's dissent emphasized the odd position in which Panetti finds himself thanks to the same lack of funding for indigent habeas corpus writs lamented by Judge Price above: "Appellant's motion requested funds so that he could make an initial showing of incompetency as required by Article 46.05. Despite the lack of any statutory provision that would provide funding for the appointment of mental health experts prior to the filing of such a motion, Article 46.06 requires an indigent defendant to make a threshold showing of incompetency." (Citations omitted.) From that description, the issue isn't so much "what is the standard for competency?" but "how can an indigent defendant meet the standard without funds to hire expert witnesses?"

The Court of Criminal Appeals receives thousands of habeas corpus writs each year and I've been told they take up more of the judges' time than direct appeals. Price and Alcala were discussing capital cases, but keep in mind that those are reviewed more stringently on appeal and in the habeas process, by far, than most other murders or other serious, "3g" offenses. Non-lawyer inmates author most non-capital habeas writs without the benefit of investigators, expert witnesses, lab work, or any of the other sorts of things that a competent appellate attorney might do, all of which costs real money. Many inmate writs are hand-written; some are barely literate. Then, because in the era of mass incarceration the volume of habeas writs has skyrocketed, the court installed strict limits on "subsequent writs" after the first one that effectively deny prisoners' ability to revisit even provably valid claims save for a handful of exceptions.

The issues surrounding the lack of indigent counsel in the habeas process isn't limited to capital murder cases, and often I wish society could discuss such topics outside the frame of hot-button culture war issues like the death penalty. These are questions of justice, not partisan tropes. Still, I'm thankful to the judges for highlighting a serious flaw in post-conviction jurisprudence that contributes significantly to the public's lack of confidence in the justice system. Cases like the San Antonio Four, Anthony Graves, Michael Morton, Fran and Dan Keller, and dozens of Texas DNA exonerees have demonstrated that a) flaws exist and b) they can only be rectified through a combination of luck and quality legal counsel advocating for them through the habeas corpus process.

Nobody ever raises this issue in the political arena because it would cost so much to provide counsel for habeas writs, people think a penny pinching Republican-controlled Legislature would never go for it. But as Judge Price said a decade ago, "Even Republicans want there to be fair trials," and perhaps today he might add, a fair appellate review. The fact that it's politically unlikely the Lege will solve a problem doesn't mean it can't or shouldn't be openly discussed, even if in Judge Price's case it's sort of a last hurrah.