Elsa Alcala's voice in the wilderness on Texas' lack of IAC recourse

Like a black-robed, Latina John the Baptist, Texas Court of Criminal Appeals Judge Elsa Alcala has been openly calling out her colleagues and the Legislature for failing to ensure remedies exist for "ineffective assistance of counsel" claims - in other words, when one's lawyer didn't do their job.

In a series of dissenting opinions, including Ex parte Garcia, Ex parte Pointer, and Ex parte McCuin, Alcala lamented the structural reasons why a) defendants cannot raise ineffective assistance claims on direct appeal and b) when they can raise the claim for the first time in a habeas corpus writ, they are not entitled to a lawyer. To Alcala, this creates a Sixth Amendment crisis. Judges Yeary and Keller have  taken on the task of rebutting Alcala on behalf of a narrow majority. (In this instance, Judge David Newell sided with the government-always-wins bloc on the court, giving them five votes.) TDCAA's case summary described the situation as:

a dispute among the members of the court over how it should deal with applications for post-conviction writs of habeas corpus filed by pro se defendants. Such applications are often incorrectly filed and could be easily corrected by appointed habeas counsel—hence, the dispute that can be more fully explored in several opinions authored by Judge Yeary on one side of the dispute and several opinions authored by Judge Alcala on the other side. The dispute is actually quite compelling but probably only to post-conviction attorneys. For the moment, Judge Yeary’s position is largely prevailing, but stay tuned to the next session of the Texas Legislature to see if that changes.

Grits thinks TDCAA underestimates whether this issue is compelling "only to post-conviction attorneys." In essence, Alcala is calling out a fundamental flaw in Texas' provision of Sixth Amendment right-to-counsel for every indigent defendant under its yoke. Thanks to crises in Louisiana and elsewhere, most of the recent attention paid to indigent defense and public defender offices has related to funding for those services. But ensuring quality is at least as important, and Alcala is complaining that poor defendants whose appointed lawyer did a crappy job effectively have no recourse. She's 100% right.

Here's what's going on: The CCA appoints counsel upon request to inmates filing habeas writs only after the court has voted to grant them a hearing at the trial court level. But defendants have no right to counsel to help write and file the writs in which they seek to convince the CCA to grant such a hearing. So inmates frequently file "pro se" writs with the court, meaning they write them themselves, often by hand on lined yellow legal pads, with no attorney to help them. The court receives thousands such applications every year and, as TDCAA noted, they "are often incorrectly filed and could be easily corrected by appointed habeas counsel." But the CCA majority fears that would open up floodgates and boost their workload.

Who knows, maybe that's a legitimate fear? Texas courts have tolerated (encouraged?) a lot of crappy defense lawyering for quite a while. If all those cases were properly vetted, that would indeed boost their workload in the near term. OTOH, their workload may reduce to the extent that the work goes faster when writs filed by lawyers are "clean," from a legal perspective, and in a word-processed brief format with footnotes instead of a handwritten hodge-podge

Regardless, seriously incompetent lawyering deserves redress. Texas state Rep. Gene Wu, an attorney and former Harris County prosecutor, said to me once that engineers, doctors and lawyers are three categories of professionals who can seriously hurt someone, or even a lot of someones, if they don't do a good job. That observation applies in spades to indigent defense.

There's a sense in which this subject tangentially relates to the funding issues being discussed nationally. In Texas, lawyers making their living representing indigent clients must take excessive caseloads (see here and here) to earn enough to cover their student loan debt, an office, and basic living expenses. Most counties don't have public defender offices and the ones which exist handle a fraction of the total volume of indigent cases. And so most counties underpay appointed lawyers, then they get what they pay for.

Judge Alcala is watching all this occur from the very back end, after the guy with a colorable claim that his lawyer was incompetent has been finally convicted and is sitting in prison with no more appeals available to him. He scrawls out his plea for justice on that yellow legal pad and she can tell that, if the guy had an attorney and had filed the writ correctly, the facts would justify granting the writ. But the inmate wasn't a lawyer so he screwed something up, didn't make all the right arguments, didn't file it right, or on time, or whatever, and the writs are denied without ever considering the merits. Worse, the CCA rules bar the defendant from filing "subsequent writs" on the same topic, so in most cases the fellow's just screwed.

Federal courts have already recognized this problem and now allow Texas inmates to bypass the CCA regarding habeas writs alleging ineffective assistance of counsel. As Judge Alcala wrote in Ex parte Garcia, "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." In other words, right now defendants can bypass the CCA in ineffective assistance claims and appeal directly to the federal courts. Alcala's right to take that as a snub - an indication federal courts don't think Texas can handle its business. What's unfortunate is that only she and Judge Johnson, who is about to leave, seem to think the CCA should rectify the problem.

Calling out like a voice in the wilderness, Judge Alcala has boldly and accurately insisted that this stance leaves defendants with no redress at all in Texas courts when their appointed counsel performed incompetently. As with any latter-day John the Baptist, she gets little contemporary credit for this stance. And there are those who would see her head on a platter (picturing Michael Keasler as Salomé's mom). But until that day, she seems intent on speaking her truth and standing up for fairness on these questions, even on occasions when she must stand alone. Bully for her.