Marzullo: The case for a capital appellate defender in Texas

Tomorrow, the Texas House Criminal Jurisprudence Committee will hear HB 1676 by James White, which would create an appellate public defender office to assist with capital cases comparable to the State Prosecuting Attorney on the prosecution side. On behalf of JustLiberty.org, your correspondent interviewed Amanda Marzullo, interim executive director of the Texas Defender Service, about the need for the bill. Ms. Marzullo last fall published the most detailed analysis available of direct capital appeals in Texas, and some of the findings were flat-out breathtaking. Listen to our interview here, or find a transcript of our conversation below the jump.




Interview with Amanda Marzullo by Scott Henson: Why Texas needs a capital appellate defender office.

Scott: Hello, this is Scott Henson on March 9, 2017 with a Just Liberty podcast.  I’m here with Amanda Marzullo who’s the interim Executive Director of the Texas Defender Service, and who has just authored an amazing and important report on direct capital appeals in Texas.  We’re here today to talk about why Texas needs a capital appellate public defender, and what’s going on with the legislature to try and accomplish that.  So, Mandy, thanks for coming, glad to have you.

Amanda: Thank you for having me.  I’m happy to be here.

Scott: So, the big bill here that would require an appellate capital defender is House Bill 1676 by James White.

Amanda: Yes.

Scott: And, it is up on Monday in the House Criminal Jurisprudence Committee.  So, congratulations for getting an early hearing and must have pretty good support since it’s up this early.  Why don’t you tell us why this bill is necessary?  Why should the average person care if we have a capital appellate defender?

Amanda: Okay.  Well, I guess there are a couple of parts to that.  The first is that direct appeals are important.  We have a flawed system in Texas where we’ve seen a lot of people both on death row and off of it who’ve had their cases cycled through direct appeal and that process just hasn’t corrected problems.  They were wrongfully convicted, and that includes like Anthony Graves, Dwayne Brown, even Michael Morton where no relief was given on direct appeal.  And, that’s bad for defendants and that’s bad for the State because we’re paying to incarcerate someone who was wrongfully convicted. That’s money out of our pocket.

I think the other piece is that death penalty direct appeals require a lot of expertise.  These are cases where there are unique laws both at the federal level and the state level, and those laws are constantly changing.  And, then you have to track issues that are sort of percolating through the system in Texas and outside it.  So, you have to watch what’s happening in other cases.  And, this is sort of an exhaustive process even for a lawyer who specializes in death penalty cases.  It’s really, really hard for a sole practitioner who’s handling everything from misdemeanor knife cases to death penalty direct appeals.  Those lawyers, they’re often sole practitioners.  They don’t have the time to do that.

Scott: So, one of the fascinating things from your report that I was unaware of is that fully two-thirds of the lawyers handling direct capital appeals were solo practitioners.  And, in fact, the law only requires one lawyer on a direct appeal.  This seemed amazing to me because as someone who’s a writer, I write lots of things where I think even before I just publish it on the blog, I need someone to look at it and edit it, and make sure that I’m not missing something or that I thought through everything.  The idea that a solo practitioner is going to sit down at their word processor and just type out a brief and hit publish, and send it off to the Court of Criminal Appeals or whoever by themselves without another lawyer being paid to look at it, I found astonishing.  And, the idea that two-thirds of these appeals are by solo practitioners with no outside assistance is breathtaking.

Amanda: Yeah, and the remaining third are often are lawyers who are in law offices of two or three people where it’s not reasonable to assume that their law partners are going to be able to look at these briefs.  And, this contrasts pretty starkly with the resources that are available to the prosecution.  Even like a solo prosecutor in the middle of nowhere in Texas is going to have access to assistance from the Attorney General’s Office.  In our report, we saw that they often hired outside counsel if they didn’t have available attorneys to handle these cases.  And, there’s also an elite appellate prosecutor office in Texas called the State…

Scott: Prosecuting Attorney.

Amanda: The Office of the State Prosecuting Attorney, sorry, thank you.  And, that office just specializes in proceedings in front of the Court of Criminal Appeals.  And, in capital cases, they provide support to the prosecutors, and sometimes if they miss an issue, they’ll even file their own, what they call an amicus brief, arguing issues and cleaning things up, so that this one defense lawyer is fighting sometimes not just the prosecutors on the case, but also this secondary office.

Scott: Okay.  Let’s dig into that for just a second because I kind of thought that was dirty pool when I read that in your report. What happened is, to tell the listeners what the issue was, the two sides, the prosecutors and the defense, had all issued their briefs to the Court of Criminal Appeals and they had all issued their final briefs, and the State Prosecuting Attorney, who is basically a resource prosecution agency for the State, filed an amicus brief in two different cases making additional responses that the Court of Criminal Appeals latched on to and said, “yeah, this argument made completely after everything else in the process is the one we’re going to go with.”  And, there is no comparable agency like that on the defender side that could possibly have intervened.  Now, it seemed like dirty pool.  It seemed like something that shouldn’t be allowed to go on, and I was surprised that the Court of Criminal Appeals accepted that as just some practice that’s okay.

Amanda: I mean what surprised me is that this is a practice that’s been going on for decades.  And, I will say that I have a lot of respect for the State Prosecuting Attorney’s Office.  I think they do amazing work which is probably one of the reasons why I’m nervous about how there isn’t a defense counterpart in the state.  If we have this for the prosecution, it’s only fair that, and the reason why they created that office, I think was in recognition that appeals are different.  Just appeals in general require expertise, and that prosecutors required assistance.

Scott: And, appeals to a high court, even more so, require really an in depth understanding of the members of the court itself.  It requires understanding the dynamics and interplay among the judges.  And, only someone who’s really paying attention to that court fulltime can understand the nuance surrounding how the different judges have interacted on these wide ranges of issues that go back years and years, and many of these judges have been on for more than two decades now.

And so, that to me is the thing that the SPA brings to the table that is invaluable, and that no solo could ever have because how often do you get anything before the Court of Criminal Appeals.  Well, if you’re the guy who’s there for the first time or the second time in your life, and you’re up against the people who do nothing but try and convince these nine individual humans with all their flaws and frailties to side with you, well, that’s an overwhelming advantage.

Amanda: Yeah, it is.  It’s unquestionable.  I mean there’s a reason why even at the federal level that we have the solicitor general’s office.  This is a structure that sort of carries through.  That’s why this office would be great not just for potentially capital defendants, but to just have a defense resource that’s in place.

Scott: Well, it’s very similar to the Harris County Public Defender Office.  When they first came on board, they were a lot of concern by private attorneys that, “oh, well, they’re going to take our work.  We’re not going to have any indigent cases, and they’re going to take our jobs.”  Well, Alex Bunin was so great when he got in, and brilliant to turn that office into true resource agency for local attorneys.  So, that when they have mental health issues, or when they have detailed appellate cases that are unusual, they serve as consultant and provide the sort of…

Amanda: Resources.

Scott: …resource attorney work that I think the State Prosecuting Attorney does for prosecuting agencies before the Court of Criminal Appeals, and that’s been an incredibly important aspect of their work in Harris County, but there’s nothing like it on the appellate level.

Amanda: No, not in front of the Court of Criminal Appeals.

Scott: Let’s briefly touch on caseload and pay issues.  There’s really, it seems to me, a couple of different caseload issues.  There’s one, there seem to be a handful of attorneys that just have a lot of capital cases, more really than I can ever imagine competently handling at one time.  And, then it seems to me there’s another where when an attorney who has a normal caseload takes on a capital case.  This capital case can crowd out their paying clients, and then the capital cases themselves don’t always pay enough to justify it.  So, talk to us a little bit about how this would impact the caseload and pay issue.

Amanda: Yeah, so I guess starting at the end of your question, the great thing about a public defender office, especially a small one like this, is that it enables you to assign cases to attorneys knowing the scope of their entire workload.  And, that’s really important in capital cases because of the resources that it takes to handle them.  Time studies, they vary, but the range of time that you need to spend on a capital direct appeal is somewhere between 500 and as high as 1,300 hours.  That is up to half one lawyer’s workload for an entire year. So, I mean what we saw in our caseload study, or just looking at it is that under Texas law, there is no requirement that capital direct appeals are distributed among the lawyers who have been certified to handle them.  So, in some counties we saw just that the same lawyers were being appointed again and again across cases, and I think the starkest example is Dallas County where 10 out of 13 capital direct appeals in our study went to the same lawyer.  So, he was handling many of them, I think he was up to seven of them at once, in addition to having like a healthy felony trial practice and juvenile cases.  So, he was billing, his billing reflected that he was working night and day all the time.

Scott: Right, quite literally 20 hours a day in some instances, right?

Amanda: Yeah, exactly.  Appearing in court, and then writing a habeas brief, that is a rhythm or a pace of work that I, is unimaginable.  It is one person sustaining that over time is going to have some health problems, to say, let alone some other things.

Scott: Right.  That’s a ridiculous amount of time to be claiming that you’re working and I know some hard workers, but I don’t anyone who does that.

Amanda: Yeah, I can’t imagine doing it.  And, then the other thing is that when your caseloads start to get really high, it creates sort of this perverse incentive for a defense lawyer to minimize the amount of time that they spend on each case.  And, that’s, to make sure that they’re able to have a payday, and it’s also just kind of to keep their heads above water.  Problem with taking on a capital direct appeal if you’re a solo practitioner is that the amount of time that you need to dedicate to that case is so great that it’s going to throw off your handling of the rest of your cases.

I mean one lawyer wrote in his billing that he would have had to shut down his law practice for six months, or even a year to handle his, like the case adequately.  But, then he only billed 300 hours, but he still worked, he said several more hours outside of the scope of it.  And, I think that that letter really reflects the problems with our system is that if you can’t control the caseloads, and you can’t do it because doing so, like telling an attorney if you take this direct appeal, you can’t have other cases.  They’re not going to make enough from that one case to keep their lights on.  It’s sort of a vow of poverty on their end, and that shouldn’t be the system that we have.  It should be that people can do an honest day’s labor and be paid enough to support their family.

Scott: I do have some sympathy for the solo practitioner who basically almost has to take on a vow of poverty.  Some of these counties are only paying a few thousand dollars for appellate defense.  So, I do have some sympathy there.  I have to say it strikes me as somewhat irresponsible to just take many, many capital appellate cases all at the same time given what a caseload that even one of those is, I find that a little reckless to take that many on at once either for the lawyer themselves to say yes, or for any judge to keep assigning them that way.  That strikes me as a huge problem.

Amanda: No, it is.  It’s a problem.  I think it’s also an example about why it doesn’t make sense to have judges assign attorneys to these cases which is another thing that’s solved by having a public defender office.  If you’re an attorney who appears before a judge on a regular basis, that’s someone that you want to keep happy.  You don’t want to say no.  So, when they’re assigning you to a case, you have this incentive to say yes no matter what.  And, law scholars have been talking about this for a long time that it doesn’t make sense, that we really need to have independence of the defense attorneys when it comes to their cases and their caseloads just the way prosecutors are independent from the judiciary when they decide what cases they want to prosecute.

Scott: Are there any standards at all in other states about what the maximum number of cases you can take or something.  It just strikes me that taking those, that many capital cases, you have to know that you’re going to be short shifting either them or the other cases.  It just seems irresponsible.  Is there any way to limit that besides taking it away from them and giving it to a public defender because it seems like their economic interest are overriding the interest of their clients at the point where you take your seventh capital case at one time.

Amanda: So, by and large, I’d say most death penalty states have appellate defenders for death penalty direct appeals.

Scott: So, this is the solution.

Amanda: This often is the solution.  They’re, in Nebraska which didn’t have very many death penalty cases, their caseload standard was, they’re about to ramp up having the death penalty again, was not more than, I believe, it was two or three death penalty cases at any time.  Once you hit three, that’s it, no more for you, no more cases, period, for you.

Scott: And, that’s in the defender office?

Amanda: No, that’s like in an assigned counsel thing. (Ed note: After the interview, Ms. Marzullo doublechecked and discovered that Nebraska does have an appellate defender. She regrets the error and begs the forgiveness of Cornhusker Nation.)

Scott: Okay.

Amanda: Or, just in general.  California is the state that has sort of like this managed assigned counsel system, and it’s extraordinarily expensive.  So, they, I think their guideline is no more than three direct appeals a year.  But, the way that they’re able to control it is that they pay extraordinarily well for the direct appeal.  So, the attorneys are paid between $60,000 and $260,000 per case, and that’s a flat fee for the direct appeal.  And, they certify their caseload every time they’re appointed to a new case.  And, then administering the program is labor intensive, so they have many more attorneys supervising the work of the lawyers, or almost as many as they have appointed to individual cases.  It’s almost one to one.

Scott: So, a managed assigned counsel system is basically a lot more expensive and a lot more cumbersome.  And, of course, the California death penalty system is completely broken and doesn’t work a tall.  So, that’s why we need the appellate defender in other words.

Amanda: Yeah, exactly.  Like the states who are using the death penalty the way we are or in general have appellate defender offices because it’s the most cost effective way to ensure that you have adequate representation.

Scott: Got it.  Well, is there anything else you’d like to chat with us about, or any other points you’d like to make about your wonderful bill that we all hope will pass with flying colors on Monday?

Amanda: Well, I guess aside from the cost effectiveness, just briefly talking about the quality of lawyering right now as it stands.  There are a lot of problems with the representation that we have.  We’re seeing lawyers cut and pasting briefs together.  The one attorney dropped a footnote in his brief saying that he didn’t write the majority of it, and said this was just boilerplate stuff that he threw together.

Scott: There was a wonderful footnote, it said something to the effect of he understood that this was the typical practice among appellate lawyers, and it made one think of a law student saying, oh, I thought it was just typical practice to copy all my briefs off the internet and hand them in.

Amanda: Yeah, no, exactly.  Like imagine if you were a college student, and you dropped a footnote in the middle of your research paper that said, I borrowed this from someone else’s work, I didn’t do this.  You would fail the class.

Scott: Right.

Amanda: And, you know…

Scott: Well, and that appeal failed too, right?

Amanda: Yeah.

Scott: So, that appeal didn’t win either, so yes, it’s a loser proposition either way.

Amanda: Yeah, and then we’re seeing lawyers just not do basic things that you do when you’re handling any case, I mean any appellate case including like filing an appellate brief, I’m sorry, a reply brief, appearing for oral argument, applying for review, but to the supreme court.  And, then just messing up fundamental questions of law or issues of law.  And, think one of the examples is a man, a lawyer who handled more than one case in our study, so he’s someone who, this wasn’t his first rodeo and has a number of appellate cases, he spent a substantial portion of his brief talking about problems with the lethal injection protocol that we just don’t use in Texas.  And, it hadn’t been in use for several years.

And, then on top of that, the court of criminal appeals had said several years before the brief was filed that issues with the method of execution are not ripe on direct appeal.  So, he got the factual predicate wrong for this argument, and then on top of that, it just wasn’t an appropriate argument on direct appeal.  And, I’d like to think that if he had more time, if he was able to just specialize in capital cases, he would have been aware of that.

Scott: Well, that was one of the other things that frankly I found just stunning in your report is the amount of times where the prosecution would file a brief, and they would simply not answer.  I don’t understand how that isn’t per se ineffective assistance, I really don’t.  I don’t understand how waiving your oral argument in front of the Court of Criminal Appeals when the prosecution is going to show up and make their case, and you’re simply not going to show up and make yours.  I do not understand how the State Bar of Texas is not nailing these people to trees to make them as examples for other lawyers to never do it again.

How is it not ineffective assistance to just not even reply, to not even show up, to just be so lazy and worthless that you don’t even care what happens to your client and whatever the prosecution says, you just say, “oh, it’s fine, you just go ahead and do what they said.”  How is this okay?  How does anyone think this is acceptable, and why aren’t people with pitchforks and torches going to these people’s homes to root them out of our communities and chase them back across the border to Oklahoma where scalawags like that belong?

Amanda (suppressing laughter): Well, I mean I’d take part in that mob.  I don’t, I guess the short answer, the sort of crappy answer to this is that ineffective assistance of counsel is a fact driven question that really, it’s really, really hard to thread the needle on.  You’ve got to establish, well, first of all, there’s a presumption that your lawyer was effective, so…

Scott: That it’s a strategic decision that he went fishing that day instead of show up for his Court of Criminal Appeals oral arguments, yeah.

Amanda: Well, all right, or I guess, all right, maybe the good way to think about is that ineffective assistance of counsel is a test that turns on did the system break down in such a way that we know that it had an effect on the outcome of the proceedings.

Scott: Of course.

Amanda: And, that is something that’s really hard to identify because there are so many different factors at a trial and on direct appeal that could bear on a judgment, so…

Scott: Which is why it’s always harmless error that the guy went fishing, and not just some almost openly malicious thing he did to his client to just not pursue their case anymore.

Amanda: Yeah, or you know, it’s okay that the lawyer was asleep in court because it wasn’t during an important line of questioning.  Like that’s the problem with this test is that it’s not, it’s a safety net that has nothing to do with the quality of representation.  That’s not what it’s about.

Scott: Right, got you.

Amanda: It’s, at the end of the day, and it’s supposed to be the role of the judiciary or of screening panels, and ideally a public defender or a boss to ensure that lawyers are providing quality representation.  And, that’s the problem right now is we don’t have the right mechanism in Texas to ensure that people are doing their jobs on these cases.

Scott: All right.  Well, with that we’re going to wrap it up.  But, thank you, Mandy, so much for coming to talk to us about this.  And, I really appreciate all your great work on this report.  Everybody, you all should definitely go to the Texas Defender’s site and take a look.  The report is titled…

Amanda: Lethally Deficient.

Scott: Lethally Deficient.  Excellent information.  I know these issues pretty darn well and I learned a whole lot, so thank you very much.

Amanda: Oh, thank you.

Scott: All right.

Transcribed by iDictate.com. Edited lightly for clarity and length by Scott Henson