Alcala: Legislature should mandate appointed counsel on habeas IAC claims

Texas has done such a poor job of providing recourse to indigent defendants with ineffective trial attorneys, Judge Elsa Alcala observed in a recent dissent to the denial of a habeas corpus writ, that the federal courts have begun allowing state prisoners to bypass state courts entirely, filing ineffective assistance claims in federal habeas writs without state courts having to rule on them. (See an academic paper assessing Texas' position on this topic.)

In this particular writ, the defendant spoke only Spanish and was denied an interpreter at trial because his lawyer said it would distract him. At least two other state Supreme Courts have ruled that there's no valid reason based on trial strategy to deny a defendant an interpreter and Alcala felt as though the petition might have been colorable if not for "nonsensical" prose and circular argumentation in the handwritten, pro se brief.

Although eight states appoint counsel for every indigent habeas petitioner, according to her opinion, Alcala isn't calling for all habeas corpus petitioners to get attorneys. Instead, she's focused on those pursuing ineffective assistance of counsel claims, which effectively are not cognizable via direct appeals and may only be addressed for the first time in habeas writs.

Because numerous states including Texas provide little or no adequate means for redress when defendants receive ineffective assistance from their lawyers, federal courts have changed their practices, said Alcala, specifically to respond to "deficiencies" exhibited in the Texas system. She wrote:

Given its recognition that an initial state habeas proceeding undertaken without effective assistance of counsel would effectively deprive Texas defendants of any meaningful review of their ineffective assistance claims, the Supreme Court crafted a federal equitable remedy that would permit such claims to be raised and adjudicated for the first time on federal habeas review.

Translated from lawyer-ese, that means SCOTUS declared that defendants could raise the issue in their federal habeas petition even if it the state courts haven't ruled on it. In other words, state high courts weren't exercising their power responsibly on this question so SCOTUS ruled they could be bypassed, reducing state power at the expense of the federal courts.

Alcala takes what to my mind is effectively a strong 10th Amendment stance: Texas courts should handle Texas' business. Her enthusiasm for judicial revanchism, though, wasn't universally shared by her colleagues.

Judge Keller responded defiantly (for her, anyway; the Presiding Judge possesses an extraordinarily genteel manner) in a concurrence to say that Texas' statutes are "firmly in the mainstream" when it comes to appointing counsel for habeas writs. That may be true. But Judge Alcala countered that the law doesn't mean much when the CCA fails to acknowledge the rights granted, whether in the constitution or by statute: "The problem in Texas is not that existing statutes fail to permit this Court to ensure that counsel is appointed to assist applicant in pursuit of his ineffective-assistance-of-counsel claim," she wrote, "but rather is that this Court generally does not utilize those statutes in such a way as to ensure that counsel is appointed for indigent habeas applicants who have colorable ineffective-assistance claims, based either on the substance of the pro se pleadings or in light of the record."

Alcala (and Johnson, who joined her dissent) is basically calling out her colleagues for not doing their jobs. And the implication seems to be that their motives lie outside the case record and have little to do with the legal issues involved. There's an extraordinary moment in the opinion where Alcala gingerly declared: "It has been suggested that Texas already spends enough money on the representation of indigent defendants and enough is enough." N.b. the passive voice and the lack of specificity surrounding who made that suggestion: this is not something being declared in legal briefs but in the judges' chambers behind the scenes. Alcala is pretty clearly reacting to economic anti-taxation arguments she's hearing in conference, which don't actually have much to do with the merits of the case.

Judge Keller believes the CCA grants habeas writs sufficiently often to prove IAC claims are being adequately vetted, offering these data regarding the CCA's habeas docket: "in fiscal year 2015, we remanded 388 habeas cases to the trial court for hearings or affidavits addressing the claims. Most remanded applications are remanded on ineffective assistance claims and most, by far, are filed pro se. We granted relief in 184 cases in FY 2015." Judge Alcala responded that "these cases constitute a very small percentage of the 4,698 habeas applications that were filed in that year." She declared herself "unpersuaded" that petitioners' "occasional success ... renders this project unworthy of our attention."

If the CCA won't fix the problem, opined Alcala, the Legislature should step in: "Until there is action either by the Legislature through statutory enactments," she wrote, "or by this Court through judicial decisions that would expand the availability of appointed counsel on collateral review in order to effectuate the constitutional right to the the effective assistance of counsel at trial, defendants' ineffective-assistance claims will largely go unaddressed."