Funding needed to bolster Office of Capital and Forensic Writs

My Reasonably Suspicious podcast co-host, Amanda Marzullo, who is the executive director of the Texas Defender Service, asked me to publish this guest blog post she authored advocating for expanded resources for the Texas Office of Capital and Forensic Writs. Give it a read:

Members of the Senate Finance Committee’s Article IV Subcommittee should take a lead from their counterpart committee in the House  and adequately fund the Office of Capital and Forensic Writs (OCFW), which has been under-resourced since its inception in 2010.

The office represents people on death row in constitutional claims relating to their conviction or sentence. The post-conviction writs filed by OCFW, often composed of hundreds of pages and years of work, ensure our system is fair and helps us avoid the most serious of mistakes.

Importantly, counties are on the hook for most costs of post-conviction representation when OCFW is not able to handle a case. The OCFW seeks funding from the Fair Defense Account, a General Revenue-dedicated fund which can only be spent on indigent defense expenses.

Each session, the head of OCFW reports that staff is over worked and underpaid—even by government public service standards. Lawyers in this office handle 8.5 capital cases on average, which is about 70% higher than their counterparts in other Texas post-conviction entities, where attorney workloads are capped at 4 to 6 cases—depending on the size of a case’s record and the issues that require research and investigation. OCFW attorneys at this office are also paid significantly less than lawyers at other entities, which prevents the office from hiring and retaining experienced lawyers. For example, the State Prosecuting Attorneys Office, the Capital Habeas Units of the Federal Public Defender Offices in Dallas and Austin, and the Regional Public Defender for Capital Cases in Lubbock are all able to pay their lawyers 40-50% more on average than the OCFW.

Given this backdrop, it’s hardly surprisingly that the office struggles with high attrition rates. Since it opened its doors nine years ago, 27 staff members have departed from its payroll roster, which currently includes just 16 people. Such high turnover impedes their representation, and ultimately, may lead to a new grounds for appeal in federal court.

Finally, and perhaps most importantly, the House Appropriations subcommittee voted to provide funding for the office’s expansion into forensics writs.  Readers of the blog will remember that legislature directed the office to handle non-capital junk science cases that are referred by the Forensic Science Commission two sessions ago through legislation sponsored by Senator Hinojosa. Yet, to date, the legislature has not allocated one iota of funding for these cases. Funding for these cases and the OCFW simply makes sense.