Tuesday, June 27, 2017

When does SCOTUS say it's okay for Texas lawyers to be ineffective?

Question: When is it okay for Texas lawyers to overtly provide their clients with ineffective assistance without it jeopardizing their conviction?

Answer (from the US Supreme Court in Davila v. Davis): During state-level habeas corpus proceedings under Ch. 11.07 of the Texas Code of Criminal Procedure. The client has no recourse, no matter how bad their lawyer screws up, under the Supremes' latest hit to defendants' ever-waning constitutional protections. Clarence Thomas wrote for the five-member majority, as quoted by Jolie McCullough in the Texas Tribune:
"Because a prisoner does not have a constitutional right to counsel in state postconviction proceedings, ineffective assistance in those proceedings does not qualify as cause to excuse a procedural default," Thomas wrote in his opinion, joined by Chief Justice John Roberts and justices Anthony Kennedy, Samuel Alito, and Neil Gorsuch.
Grits finds this especially frustrating because it's not just death-penalty cases - where defendants receive automatic federal habeas corpus review - where lawyers might provide ineffective assistance. There's no right to counsel for any state habeas proceedings - including the junk science writ created in recent years by the Texas Legislature - meaning lawyers can be ineffective in that work without it weighing into the outcome. That's frustrating and upsetting.

Justice Breyer, in dissent, considered this a situation where “the framework of state procedural law 'makes it highly unlikely in a typical case that a defendant will have a meaningful opportunity to raise a claim of ineffective assistance of trial counsel on direct appeal.'” Under Texas law, as the court "pointed out in Martinez ... the 'initial' state collateral review proceeding [in Texas] 'is the first designated proceeding for a prisoner to raise a claim of ineffective assistance at trial.'" (It can also happen on direct appeal, but often the trial attorney files those and is unlikely to make an ineffective assistance claim about their own work.) In Martinez, Breyer added, SCOTUS said that in Texas, state habeas “is in many ways the equivalent of a prisoner’s direct appeal as to the ineffective-assistance claim.”

So without a right to counsel at least for purposes of challenging ineffective assistance by one's appellate attorney through a habeas corpus writ, Texas' law and judicial practice have essentially extinguished defendants' rights to challenge it at all in many cases.  And five members of SCOTUS have now enshrined that perverse outcome into law unless the Legislature or state courts seek to change course.

The outcome reinforces the outcry from Judge Elsa Alcala in a separate case in which she called for providing counsel for state habeas claims in a notable dissent. Doing so would not only better protect defendants' constitutional rights, but also modulate and streamline the workload of the Court of Criminal Appeals, which is annually flooded with pro se writs. That would help weed out frivolous claims and make it more likely the CCA can spot the valid ones.

Make Grits Philosopher King and I'd suggest Texas should create a public-defender office for appeals and writs comparable to the Office of the State Prosecuting Attorney on the government's side, with a specific mandate for representing defendants' state habeas claims.*  But the Legislature this year balked even at spending a much smaller sum to cover direct appeals in death-penalty cases (HB 1676) - and failed to give the Office of Capital and Forensic Writs extra money to cover representation in junk-science writs - so at the moment, political will is lacking.

As a final, notable aside, McCullough pointed out that:
This was the third Texas death penalty case heard by the U.S. Supreme Court this term, which began in October and ends this week, but it was the first time the justices sided with the state over the inmate. In February, the court agreed with inmate Duane Buck that his case was prejudiced by an expert trial witness who claimed Buck was more likely to be a future danger because he is black. And in March, the justices sided with Bobby Moore, declaring that Texas’ method for determining intellectual disability for death row inmates was unconstitutional.
* Before someone suggests it, keeping the State Counsel for Offenders as an arm of TDCJ instead of making it independent, like the SPA, has prevented it from ever aspiring to play such a role.


Anonymous said...

Keep voting republican and that "five-member majority" will increase and wipe-out every constitutional protection we ever had..

He's Innocent said...

I move for nomination of Grits for Philosopher King!

Steven Michael Seys said...

I know from experience how frustrating the legal system is. If one doesn't obtain a lawyer the courts use every excuse and trick to avoid granting justice. If one does obtain counsel the lawyer has absolute control of what is presented to the court and how that presentation is made. If a lawyer is lazy or just doesn't like the client, the client is screwed. The attorney is the gatekeeper that allows or denies access to the court, the Constitution not withstanding.

Mark M. said...

Steven, no matter what people hear out on the yard or in the tank, I don't know even one criminal defense attorney who give a rat's ass about "liking the client." That's just not a consideration about anything having to do with presenting the best defense possible. That fallacy propagated by the jail-house lawyers is a big reason why clients often won't tell the defense attorney the real facts of the offense; they're worried their attorney won't "like" them. As if....

Steven Michael Seys said...

Mark, I told my attorney everything I knew. He discounted everything i told him and ignored the facts that the police didn't collect until he discovered at trial that the prosecution was using perjury. I had told him months before, that the prosecutor's witnesses were lying. He never investigated and didn't have the facts to dispute the lies. I was finally paroled last November, and still can't get a lawyer who is willing to listen to me. They have their official story and refuse to be confused by the facts. This is why I don"t believe there are lawyers who are altruistic, or even honest, because I have yet to meet one.

Wise Texan said...

Mark, my husband told his attorney everything he knew. I provided tons of information and studies about his mental illnesses, lack of treatment due to being laid off from his job and losing his insurance, drug interaction studies, and put him in contact with my husband's psychiatrist. My family sent letters of support and were all willing to testify on his behalf. The attorney didn't care, flat lied to my husband about when he would go up for parole review if he accepted a deal from the prosecutor and coerced him into taking a terrible deal. I don't give a whit if the attorney liked or didn't like us, we paid him and got basically nothing in return. I wish we had just saved our money and allowed him to go with a court appointed attorney because the outcome would probably been the same and we wouldn't be out thousands of dollars in attorney fees that amounted to squat. And sadly, there is no recourse because the deal included an agreement not to appeal. The laws seem to protect everyone but the actual citizens who are most hurt by these decisions.

Anonymous said...

@Stephen Seys and Wise Texan-

File a complaint with the Texas State Bar describing the details. It's a long shot, but it forces the lawyer to, at the very least, put into writing a response. If there are more lies by the attorneys, go to the judge.

It's also somewhat cathartic knowing that you took every step possible.