Tuesday, May 29, 2018

Considering ineffective assistance without all the voices in the room

The Texas House Criminal Jurisprudence Committee the other day held an under-attended hearing (hardly anyone in the audience and no quorum on the dais - video here) covering three topics: the legal framework behind sexual assault prosecutions (which bled into discussions of crime labs), prosecutor misconduct, and ineffective assistance of counsel (IAC).

In this post, let's consider their discussion of ineffective assistance, first recounting what was said on the topic, followed by a few words about issues Grits wishes the committee would have addressed.

Hearing highlights: Levels of IAC 'very disconcerting'
Stacy Soule, the State Prosecuting Attorney told the committee the number of ineffective assistance cases being heard by the Texas Court of Criminal Appeals is "very disconcerting," warning legislators, "this is not something that's on the margins." By contrast, findings by the CCA of prosecutorial misconduct are relatively rare.

Soule predicted Texas will soon see cases where ineffectiveness is alleged based on defense attorneys failing to invoke the Michael Morton Act or examine the state's evidence.

Grits has heard the same thing, fwiw, particularly in jurisdictions where attorneys are given electronic access to discovery, which means prosecutors and judges can tell if they never bothered to access it. This apparently happens a good deal of the time. Eventually, that documentation may be used to claim attorneys were ineffective if they never downloaded discovery materials. Possibly, entire county systems could be held accountable if it could be proven they knew attorneys didn't look at discovery and kept hiring them to represent indigent clients, anyway. These were the thoughts running through my head as Grits listened to the SPA's testimony.

In that vein, our pal Shannon Edmonds, the Texas District and County Attorneys Association lobbyist, complained that prosecutors have had to hire additional staff to comply with the Michael Morton Act, only to find that many defense attorneys never seek to review it.

Edmonds suggested the Legislature change the law to make public any defense attorney's settlement over grievances with the state bar related to ineffective assistance claims, just as they did for prosecutors in response to misconduct allegations a few years ago. Grits would support that.

According to Soule, as of last week, the CCA had granted IAC relief in nearly 200 cases already this term, with a month left to go before it ends.

While offering no remedies for IAC, Soule suggested it was a big problem for prosecutors for the following reasons:
  • may result in wrongful convictions
  • takes a substantial toll on the judiciary's resources
  • creates difficulties re-prosecuting old cases years later
"Ineffective assistance of counsel is a systemic and long lasting problem," Soule declared.

Linda Acevedo from the state bar disciplinary committee said the state bar doesn't typically sanction lawyers for ineffectiveness, except in cases where lawyers outright ignore or fail to communicate with their clients. In addition, there has been an uptick, she said, in cases where criminal-defense lawyers get involved in immigration cases, don't know what they're doing, and screw them up (my paraphrase) because they are "not competent" to work in the area.

Geoffrey Burkhart, the new head of  the Texas Indigent Defense Commission  who replaced Jim Bethke, told the committee that IAC isn't a "few bad apples" problem but is a systemic issue. (Grits' thought: Can't it be both? After all, bad apples spoil barrels.)

Burkhart said IAC generally boils down to two issues: "The no body problem and the warm body problem." As for the "no body problem," many criminal defendants still do not get counsel or do not get a lawyer soon enough in the process. In some counties, said Burkhart, appointment rates are as low as 10 percent.

The "warm body problem," he said, stems from (often flat) fees for indigent defense being so low that attorneys must work on volume. As a result, attorneys don't spend a lot of time on each case and begin to "jettison core defense tasks."

The Sixth Amendment is a "gateway right," said Burkhart, because without a lawyer one can't enforce one's other rights to due process, etc..

The Texas Indigent Defense commission can only formally audit and inspect a handful of counties each year, Burkhart noted, but in 17 years the agency has never once performed such inspections and found a county in compliance with the Fair Defense Act, he said. Because of that, he said, TIDC tries to play more of a collaborative role instead of taking a gotcha-mentality.

Chairman Joe Moody implied at one point that Texas' indigent defense funding mechanisms might be the subject of federal civil rights litigation based on equal-protection grounds: "You have a situation where you have a constitutional right that's being applied very differently based on where you're charged with a crime."

Notably absent from this portion of the hearing was the criminal-defense bar, who apparently don't mind letting prosecutors' representatives define their problems for state legislators.

Testimony the Committee should have received
Although it's possible she couldn't do so because of conflict with judicial duties (even though legislators won't legislate again until after she's off the court), I found myself wishing Judge Elsa Alcala had been invited to the hearing to testify. She's described in detail the structural barriers to challenging ineffective assistance in CCA dissents and concurrences, and recommended legislative action in response. In particular, she believes the Legislature should expand the right to counsel to include habeas writs, only for purposes of challenging ineffective assistance claims.

Grits would add that the Legislature should consider a remedy to the issues raised by the US Supreme Court's decision in Davila v. Davis, which held that lawyers' ineffective work on state habeas proceedings did not excuse a procedural default because there's no constitutional right to counsel in state habeas proceedings. IMO, there should be some way statutorily to ensure that ineffective lawyers don't prevent defendants from pursuing meritorious claims in state habeas proceedings. This hearing would have been a great opportunity to receive input on the question.

In a dissent to that case, joined by three other justices on SCOTUS, Justice Breyer pointed out the same problem with Texas IAC law in that case as Judge Alcala has been raising: State habeas corpus writs are the "first designated proceeding for a prisoner to raise a claim of ineffective assistance at trial," and there's no right to counsel at that phase.

Given all this judicial interest - not just from the CCA but from SCOTUS - Grits was sure these issues would be considered at this hearing. But they never came up.

Grits also wished they'd had some law prof or researcher to provide some context to the numbers the State Prosecuting Attorney put out, about which Shannon Edmonds tried to imply that a handful of prosecutor misconduct cases or the few dozen IAC claims upheld by the Court of Criminal Appeals represented the entire universe of bad-lawyer behavior in the justice system. That's absurd, but the contention was allowed to stand un-rebutted.

In reality, there are dozens of hoops a case must get through before the CCA agrees to hear it, and many (in fact, by far, most) legitimately problematic cases of prosecutor misconduct and IAC never get that far.

Fort Worth Attorney Mike Ware, speaking of his work with the Innocence Project of Texas, meandered toward that point, telling the committee that IAC and prosecutor misconduct both are typically "hidden." DNA evidence might exonerate someone, he said, then when people looked back to say, "why was that person convicted?," they might find IAC or misconduct by a prosecutor. But without that needle-in-a-haystack discovery, no one would ever know.

That's the case in most instances, both of prosecutor misconduct and IAC. The few cases we see are examples of patterns which exist more broadly in the justice system, but only rarely show up in state appellate court opinions.  As with actual innocence cases, one should look at them much like a small statistical sample, each one representing many more unseen cases out in the world.

There are other aspects of ineffective assistance the committee should have addressed, not the least of which are high caseloads among attorneys appointed to represent indigent defendants. A recent Texas Tribune story found that, in Travis County, "the 10 private Austin-area attorneys with the most appointments handled an average of 533 cases in 2017." In Harris County, totals run even higher! The Texas Indigent Defense Commission has created excellent tools for analyzing these topics, so the issue is ripe for more detailed study.

The underfunding of indigent defense at this level amounts virtually to a structural guarantee of ineffective assistance. From a political perspective, this is not a bug, it's a feature. Texas' indigent defense systems were created, and most recently upgraded (2001), during a period of tuff-on-crime excess. They were designed to facilitate convictions, not to defend against them. After all, if defense lawyers were better, counties would need more prosecutors (who also have excessive caseloads), judges would have to respond to more motions, and court dockets would fluctuate considerably before reaching some new, for-now unpredictable equilibrium. Basically everything about the courts gets a little more expensive and everybody has to work a little harder.

That said, Grits doesn't buy complaints that indigent defense costs are an "unfunded mandate" from the state, any more than prosecutors' salaries are an "unfunded mandate." The budgetary arrangement for many decades in Texas has been that counties take care of funding local court and jail costs and the state pays for prisoners they send to TDCJ. I'm not against the state contributing more on indigent defense, but IMO it should only be done if counties pick up some of their share of the "unfunded mandates" running in the other direction in the form of long prison sentences, possibly through a cap and trade arrangement.

Underfunding indigent defense is a concern, and more funding must be part of any solution, but it's not happening in a vacuum, and it's not the only cause of ineffective assistance.

RELATED: Spotlight on ineffective assistance: Barriers to remedies


Phelps said...

Between ineffective defense and prosecutor immunity, our judicial system lacks any credibility.

I am for the death penalty as a concept, but I would never be for it in a system that convicts as many innocent people as ours.

Lane Thibodeaux said...

How about extending the deadline for filing Motions for New Trial (MNT) in Texas criminal cases from 30 days to 120-180 days? This period of time is not unique in other jurisdictions. Part of Judge Alcala's dissent in Ex parte Garcia was the Catch-22 indigent defendants find themselves in related to raising trial counsel IAC claims (I would call it a due process or equal protections issue). At least on direct appeal an indigent defendant has a right to an attorney. However, IAC claims are highly discouraged by the CCA at direct appeal because of the short 30 day deadline - for underlying reasons not really necessary to go into here. Nevertheless, this situation is at its worst in Capital Murder-LWOP cases. This subset of defendant has no statutory right to counsel at state habeas stage (unlike death penalty cases) and direct appeal counsel, as mentioned, is strongly discouraged from raising IAC on direct appeal. Further with the draconian procedural default rules at federal habeas this the CM/LWOP defendant will likely, under current law, die in prison without any real ability to raise trial counsel IAC claims. A remedy other than appointed counsel at state habeas would be extending the existing MNT deadline.

Kuato said...

I requested an invite to testify on Prosecutor Misconduct. My request was denied. But I was there for the hearing.

I've studied many of the cases of exoneration. In almost all there can be seen prosecutor misconduct. You will see it in CCA opinions on the cases but they don't point it out or label it for what it is.

A woman from the State Bar in charge of addressing violations of the Texas Disciplinary Code of Professional Conduct gave very vague testimony. She did not give any statistics on how many complaints they get against prosecutors, nor how many of those they act on, nor how many were disciplined. As you know most committee members were not there and of those that were none asked.

I know from my experience the State Bar has always been hands off when it comes to Attorneys employed in government. They have left it to the District Attorney, Attorney General, or whatever head of an agency or sub-unit of government the Attorney is employed in to discipline them. If Attorneys in private practice did what they did they would be sanctions by the Judges, disciplined or disbarred by the State Bar of Texas, and might even go to jail.. But Government Attorneys, and in particular those employed as prosecutors, where freedom and lives are at issue, government attorneys are given a free pass. Only very recently has there been some change to this. And only in cases that have been very well publicized by the media. And in those case only when the District Attorney they were employed under asked the Bar to discipline the prosecutor.

Steven Michael Seys said...

Any time an innocent person is convicted, you can be certain that prosecutorial misconduct is at play, and IOC allows it to carry the day. They are two sides of the same coin.

Kuato said...

Here is what it takes to hold a prosecutor in Texas Accountable for misconduct that results in DEATH! Not even a Law Firm the likes of Susman Godfrey can get the bar to discipline them!

State Bar of Texas v. John Jackson. In 1992 Cameron Todd Willingham was convicted of murder-by-arson. Years later, a report for the Texas Forensic Science Commission concluded that the arson determination years earlier had been based on folklore and myth, not science. John Jackson, the prosecutor, conceded that the arson report used at trial was flawed, but pointed to alternative evidence of Willingham’s guilt: the corroborating testimony of a jailhouse snitch, who also testified that he had not been offered anything in return for his testimony. Accordingly, the State of Texas executed Willingham in 2004 despite overwhelming forensic evidence that the fire was not arson. Years after Willingham’s execution, the witness recanted his testimony, and also admitted that he had been promised leniency if he testified against Willingham. Along with The Innocence Project, Susman Godfrey represents certain Willingham family members on a pro bono basis in a grievance filed with the State Bar of Texas, seeking to have former prosecutor Jackson disciplined for misconduct. Documentary evidence of the prosecutor’s deal with the witness has now been identified.

State Bar of Texas v. Charles Sebesta. In 2010, after spending 18 and one-half years in prison including 12 years on Texas’ notorious Death Row, Anthony Graves was fully exonerated and the State of Texas declared Graves to be “actually innocent” of the murders for which he had been wrongly convicted. In reversing Graves’ conviction, the U.S. Court of Appeals for the 5th Circuit pointed to serious misconduct by Sebesta, who had prosecuted Graves in 1992. Along with the Texas Defender Service, Manne represents Graves on a pro bono basis in a grievance filed with the State Bar of Texas, seeking to have Sebesta disciplined for his misconduct. In 2014 the Bar’s Office of Disciplinary Counsel determined that there is good cause to believe that Sebesta violated the Bar’s ethical rules, and that it will proceed against him. Manne represented Graves at the evidentiary hearing at which the Bar proceeded against Sebesta. In June 2015, the Bar found that Sebesta had engaged in numerous ethical violations and disbarred him for life. In February 2016, the Bar’s Board of Disciplinary Appeals affirmed the disbarment.
James Turrell / “The Light Inside.” James Turrell is one of the greatest artists of the 21st century. In 2013 when Turrell and Houston’s Museum of Fine Arts were sued regarding an art installation, Susman Godfrey represented Turrell on a pro bono basis, and obtained a dismissal of all claims against him.

In the Matter of Judge Sharon Keller. The Texas Commission on Judicial Conduct initiated proceedings against the Honorable Sharon Keller, Presiding Judge of the Texas Court of Criminal Appeals, relating to the execution of death row inmate Michael Richard. The Commission accused Judge Keller of misconduct for effectively denying Richard access to court late on the day of his execution, in violation of the Court’s own internal procedures. Lawyers and paralegals from the Texas Defender Service, a non-profit organization that had represented Mr. Richard, were key witnesses in the proceedings. Susman Godfrey represented them and their organization. The Commission found that Judge Keller violated standards set forth in the Texas Constitution, the Texas Government Code, and the Texas Code of Judicial Conduct. It issued a formal Public Warning “in condemnation of the conduct.” On appeal, a special court of review held that the Commission could have censured Judge Keller, but that a Public Warning was not an available remedy. The court of review emphasized that “We express no opinion about the merits of the accusations against Judge Keller.”

Anonymous said...

It’s funny how a story about ineffective counsel gets turned into a prosecutor bashing party. Also, the conclusions by Kuato and Steven Seys that almost every exoneration involves prosecutor misconduct clearly exhibit their ignorance.

What prosecutor misconduct was committed in the old rape cases when a complainant merely identified mistakenly the exoneree back in the days before DNA testing? Was it misconduct for the prosecutor to have prosecuted the case since DNA didn’t exist and there was only one witness (complainant) who identified the exoneree as the rapist?

I’m not saying that there is never any prosecutor misconduct in exoneration cases. All I’m saying is there is not always prosecutor misconduct in exoneration cases as Kuato and Steven Seys want everyone to believe.

Phelps said...

There is often prosecutorial misconduct even in those pre-DNA eyeball witness cases. How many of those cases involved a single suspect photo lineup? Where did that suspect come from? If they were personally known to the witness, then they wouldn’t have gotten the ID wrong. They had to have been presented to the witness as a suspect. If there was no other evidence how did they end up as a suspect?

Most often, the real misconduct in those cases is when the prosecution failed to identify to the defense the other three witnesses who did NOT identify the suspect.

Kuato said...

The anonymous poster is speaking out his ass. He has no knowledge of my studies and experience, as well as years of observation. I am NOT "bashing" Prosecutors. I am "bashing" those who tarnish this position of public trust with their flagrant disregard for our Constitutions and laws to satisfy their psychopathic sadistic urge to inflict pain and suffering on others. Some prosecutors are of the same mindset of serial killers. Employment under the title of prosecutor provides them a safe place to hide. I am bashing a system that has made that position of public trust a safe haven for the greatest threat to public safety to ever existed now or ever. Ever heard of Jesus? Maybe that person is posting anonymously because they are one of the psychopaths hiding as a prosecutor?

Oprah, not her said...

And some prosecutors are just dumb; a willful blindness to the inherent bias that they present in a courtroom or to a defendant during a plea bargain. They lack foresight or creativity to identify alternative suspects or theories of the circumstances of the crime. I think some prosecutors are willing to game-the-system to get a paycheck rather than seeking a means to satiate bloodlust or inflict pain. They know the Defense Attorney is ineffective, but the prosecutor is not about to help them out. For these prosecutors, their endgame is cash or fame. It's easy to be dumb as a prosecutor because there is no penalty. Immunity protects the stupid.

Anonymous said...

Until the State actually begins to fund a defense equivalent of the State Prosecuting Attorney with management in Austin who can claim their place in the legislative committee room, its unsurprising that the defense bar is not present. And anyone who claims that ineffective assistance is not endemic is fooling themselves or trying to fool others. The counties and judges want to pay defense counsel rates that won't buy you the services of a plumber or even a cleaner, and simply won't pay for investigation. So you get many bottom feeders who barely pretend to know the law, and a few hardy souls who are prepared to work like dogs for their indigent clients because It Is The Right Thing to Do. The Bar fails to sanction even egregious neglect and poor performance by defense counsel, and the bar committees are packed with the local "worthies" who are often the buddies of the lawyers whose cases come before them. And the courts won't even name defense counsel (or prosecutors) who they find to have rendered poor performance or committed misconduct.