Checking in at the CCA: TX high criminal court hasn't posted oral-argument videos in nearly six months, and other stories

Since your correspondent left the Innocence Project of Texas, I haven't tracked the Court of Criminal Appeals hand-down lists nearly as closely as at times in the past. But here are a few recent items that merit Grits readers attention.

Hiccup in publishing CCA arguments video
Last year, the Legislature mandated that oral argument videos from the Texas Court of Criminal Appeals should be recorded and posted online. But the last ones available as of this writing are from June, and court staff don't know when they will resume posting them.

I'd noticed the discrepancy because my podcast co-host, Mandy Marzullo, and I had hoped to do a segment on the use of "shock belts" in court following oral arguments in the James Calvert case, which was argued Sept. 19. But the recording is still not available.

Grits was told by court staff that the failure to post after June is because of "trouble with the audio." The Office of Court Administration, I'm told, is working on the problem. But it's now almost six months since they stopped posting oral arguments. Surely that should have been enough time to implement some sort of Plan B to begin recording again.

Shoplifter acting alone can't commit organized crime
Judge Elsa Alcala recently prevailed on the rest of the court to declare that a single episode of solo shoplifting, in which the defendant acted by herself and not in concert with others, did not qualify for enhancement for punishment as "organized retail theft." Here's her opinion, and Judge Keller concurred. Judge Yeary alone dissented, attempting to stretch the bounds of the statute far beyond reason, good judgment, or the well-documented legislative intent behind the statute. (Upon reading his opinion, I could not understand why he would choose to die alone on that hill.)

We're really going to lament Judge Alcala's departure from the CCA once she's gone. She's become an intellectual leader on the court who will be sorely missed.

Five-member CCA majority bucks GAW faction, trial court to declare defense counsel ineffective
An unpublished, per curiam opinion garnered four dissenters (the entire Government Always Wins faction) but no dissenting opinion earlier this month. The defendant alleged his trial counsel was ineffective because of his "failure to note that the foreman of the grand jury was also empaneled and served as the foreman of the trial jury, failure to file pre-trial motions to suppress, failure to object to the introduction of Sheriff’s Department offense reports into evidence, failure to present alibi witness testimony, and failure to advise Applicant that the decision of whether or not to testify was his to make."

The trial court in Newton County recommended denying relief. But five members of the Court of Criminal Appeals decided to overturn the conviction, granting the defendant a new trial. And whatever reasons Judges Keller, Hervey, Keasler, and Yeary had for dissenting, they chose not to share them.

5-4 is close, and the story line about the grand jury and petit jury having the same foreman is a twist I've never heard before. Nor is it typical for an unsigned, per curiam opinion to have four dissenters, much less for none of them to articulate the reasons for their dissent. The dynamics surrounding this case imply a lot of backroom drama, even if there's not much paperwork to document it.

Paxton prosecutor legal-fee decision may impact indigent-defense cases
The case over legal fees for special prosecutors in the Ken Paxton indictments perhaps predictably was decided based on political rather than legal considerations, with significant unintended consequences potentially resulting. The court's majority was under pressure from Republicans to shut down the prosecution of the state Attorney General, siding with pols in Paxton's home county to refuse to pay special prosecutors their legal fees. See coverage from the Texas Tribune.

Judge Mary Lou Keel seemed fed up with her colleagues in the majority, accusing them of re-ordering and re-wording statutes and case law to "mask" their real meaning and "disregard" the clear intent of the statute. I thought she made mincemeat of the central argument in Judge Bert Richardson's concurrence.

Both she and Judge Alcala made the case that the majority opinion would impact indigent defense payments. Alcala declared the opinion was "effectively a decision to deny paying a reasonable fee to defense attorneys appointed to represent indigent defendants, and that will likely result in more cases of ineffective assistance of counsel."

Not only was the court majority legislating from the bench, Alcala observed, but it was doing so badly. "It is improper for a decision granting mandamus relief to create new law, but it is an even more dire situation when the new law, as here, results in manifest injustice due to its newly created policy."

The majority botched the issue so badly it could even require legislative intervention. It's possible counties won't be able to find lawyers to take on complex cases if they may be limited to low, flat fee based on standardized schedules, no matter how many hours they put in on a case.

What the judges want: Judicial Council recommendations to the #txlege

The Texas Judicial Council last month issued its recommendations to the Legislature on criminal-justice reform heading into the 86th session in 2019. Let's take a look at what judges are asking of the Texas Lege.

'Data! Data! Data! I cannot make bricks without clay'
Although listed under the heading for opioids, a recommendation to improve statewide collection of case-level court data deserved to be highlighted more prominently. The Council wants Texas to  begin collecting:

relevant case level data from all court levels including magistrates, to generate more timely and detailed information to support policy, planning, management, and budget decisions for the justice system. The collection of the relevant case level data should be fully funded by the Legislature.

This recommendation would have policy making implications well beyond the opioid crisis, and would benefit legislators themselves as much as anyone. As Grits mentioned earlier this week, you can't manage what you can't measure. And there are large swaths of the justice system that cannot be managed because it's impossible to talk with precision about exactly what's happening on the ground. Case-level data could help change that. (MORE: A helpful commenter pointed out the Council put out a separate set of recommendations specifically addressing data issues; see here.)

Establish an Opioid Task force
Yawn. Outside of Houston, meth is the bigger problem in Texas. And solutions on overdose deaths are the same no matter which drugs we're talking about.

'Pretrial Decision Making Processes'
The Judicial Council recommended eight different items on bail reform, providing a comprehensive roadmap for the Legislature to shift from money bail to risk assessments when determining pretrial detention. The list includes both statutes and constitutional amendments necessary to implement the plan, with rulemaking at the Office of Court Administration to flesh out the details within a "sufficient transition period."

In the Judicial Council's vision, all defendants would be assessed for potential risk with a validated instrument developed by the Office of Court Administration. The state constitution would be amended to a) create a presumption that defendants will be released on personal bond and b) allow judges to detain defendants they deem to be a public safety risk regardless of their ability to pay.

They want the Legislature to help fund pretrial supervision as well as training for magistrates and others making bail decisions. They also want the Lege to require data collection on pretrial-release decisions as part of the reforms.

Getting the Governor Out of Specialty Court Oversight
This one is interesting. Under Gov. Rick Perry, specialty courts in Texas blossomed. Today, "Over 190 specialty court dockets operate across Texas, including DWI court, drug court, family drug court, veterans court, mental health court, and commercially sexually exploited persons court," with the Governor's Criminal Justice Division the largest funder. But this was the prior Governor's priority, not this one. So it's little surprise that the Judicial Council might suggest that "certification and oversight" of specialty court programs be shifted from the Governor's CJD to the Office of Court Administration, which answers more directly to the judiciary.

The Council noted that current practice in Texas is out of step with national norms; only one other state places oversight authority for specialty courts with the Governor.

Firearms
This was clearly their most tentative proposal. Of all the things judges might request to stop mass shootings, asking the Legislature to fund better data entry into the national background check system is one of the least controversial, least bold, and least-likely-to-make-a-big-difference reforms you might name. But it's the only thing they could come up with.

No IAC Fix Suggested

One item Grits noticed was conspicuous by its absence. On the Court of Criminal Appeals, Judge Elsa Alcala has been calling for a legislative fix on ineffective assistance of counsel, which for the most part can only be challenged via habeas-corpus writs where defendants do not have access to an attorney. After four US Supreme Court justices raised the same issue in a recent dissent, Grits thought the subject might secure the Judicial Council's attention. I don't know whether they considered it or not, but clearly it didn't make the final cut.

The Intercept: State DA association understates extent of prosecutor misconduct

A recent Texas House Criminal Jurisprudence Committee hearing covered that panel's fourth "interim charge" - essentially a study assignment the House Speaker gives committees in between Texas' once-every-two-years legislative sessions - related to both prosecutor misconduct and ineffective assistance of counsel (aka, defense misconduct).

Grits had analyzed the key debates from that hearing related to ineffective assistance. And now, my neighbor Jordan Smith has a report on the prosecutor-misconduct portion of that debate for The Intercept. Jordan explored in some depth, and ably refuted, the state prosecutor association's claims that legislators should interpret the low number of prosecutors sanctioned for misconduct as evidence that prosecutorial misconduct doesn't (or barely) exists.

Between those two reports, one can get a decent sense of the terms of debate presented to the Criminal Jurisprudence Committee surrounding that interim charge.

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

'Agree with me or I will kill you': On plea bargaining, the death penalty, and life without parole

Me, Harris County DA Kim Ogg, and Shannon Edmonds from the Texas District and County Attorneys Association commented in a Houston Chronicle story this week on the role of life-without-parole sentences in plea bargaining in capital cases. I'd suggested:

"There has always been speculation about whether that has encouraged prosecutors to file capital cases more than they otherwise would because what better leverage do you have in a plea bargaining situation than, 'Agree with me or I will kill you,'" said Scott Henson policy director with the non-profit Just Liberty, which advocates for reducing incarceration. "The government will literally kill you if you don't go for life without parole and there is no stronger bargaining chip than that."

However,

District Attorney Kim Ogg, whose office has overseen less than 25 life without parole sentences since she took the reins last year, pushed back against that suggestion. 

"We don't use the death penalty as a plea bargaining tool," she said.

Hmmmm ... What is plea bargaining, Grits wonders, if not a negotiation over sentences? More lenient sentences are offered as an incentive for the defendant to admit guilt and avoid a trial. Since the only two sentences available for capital crimes in Texas are death and LWOP, one wonders what else there is to bargain over if the death penalty isn't used "as a plea bargaining tool"?

Taking the claim on its face, perhaps this might explain the large number of cases charged as capital which don't result in capital sentences: when prosecutors take death off the table in a capital case, LWOP becomes the top sentence in a plea negotiation. So offering non-capital murder or some other charge with the possibility of parole would become the only negotiating chip to incentivize plea deals. Sufficient, county-level charging data doesn't exist, to my knowledge, to confirm that hypothesis, but I'm not sure why anyone would plea bargain to LWOP if the death penalty weren't being threatened.

If the Harris DA under Kim Ogg doesn't use the death penalty to get LWOP plea bargains, I'm glad to hear it. Shannon Edmonds from TDCAA, however, considered it par for the course "that prosecutors used the death penalty to get a guilty plea."

Shannon Edmonds, staff attorney and director of governmental relations for the Texas District and County Attorneys Association, said his group doesn't have an official position on the matter. 

"It kind of tickles me that defense lawyers are upset that prosecutors aren't trying to kill their clients," he said. "Even if the punishment was a minimum of 40 years on a capital life sentence, they still complained that prosecutors used the death penalty to get a guilty plea. That's not anything unique to life without parole."

So, there's that.

Finally, Houston attorney Pat McCann raised an issue that's been discussed recently on this blog and on the podcast - non-capital cases don't receive legal representation at the habeas-corpus stage, nor automatic review by the Texas Court of Criminal Appeals or the federal courts:

Unlike with death-sentenced cases, there's no automatic appointment of post-conviction appellate counsel and no punishment phase of the trial, which makes the whole process quicker and cheaper. 

"Life without parole was an unintentional gift to major urban prosecutors' offices," McCann said. "It makes it very easy to dispose of a large number of violent and often youthful offenders without any more thought than one would need to toss away a piece garbage."

Much has been written about the financial costs of the death penalty, but McCann's observation raises another important and less-often-discussed point: The reason the death penalty tends to drive criminal-justice debates isn't just the symbolic importance of imposing the maximum punishment. It's that defendants sentenced to the death penalty have attorneys representing them throughout the process, and so weak or unconstitutional prosecutions are more likely to be exposed.

Flawed forensics, for example, may be challenged at the habeas stage under Texas' junk science writ. But only capital defendants are guaranteed an attorney at that stage. Same goes for ineffective assistance, prosecutor misconduct, and other common habeas claims.

Death cases these days are more thoroughly vetted by appellate courts, at least at the federal level. (State-level representation in Texas capital cases too often remains shoddy.) But for the LWOP prisoners, McCann's "piece of garbage" comment isn't far off. Court of Criminal Appeals Judge Elsa Alcala has suggested extending the right to counsel in habeas proceedings to non-capital cases in order to pursue ineffective assistance claims. There's a strong argument to be made that LWOP sentences deserve the same level of automatic, post-conviction vetting.

Spotlight on ineffective assistance: Barriers to remedies

Texas State Rep. Gene Wu once said to me there were three categories of professionals - attorneys, doctors, and engineers - who could do immense damage to people when they badly screw up.

He's right. Despite that, in the criminal justice realm, ineffective assistance of counsel  - in essence, a defendant's legal claim that their attorney did a bad job - remains a bit of a backwater issue. That's in part because the reform community tends to be defense oriented, and in part because its true frequency is hard to document. But it's also because the government is complicit in ineffective assistance by underfunding indigent defense, so there's a bit of a wink-and-a-nod arrangement for merely lazy as opposed to actively harmful representation.

Even so, for indigent defendants with appointed counsel and few choices, shoddy defense lawyering can have a huge impact on their lives. In the November episode of Just Liberty's "Reasonably Suspicious" podcast, Amanda Marzullo of the Texas Defender Service and I discussed some of the sources of and remedies for ineffective assistance of counsel. The first segment discusses the Texas House Criminal Jurisprudence Committee's pending study of ineffective assistance as part of an "interim charge." The second segment discusses a Texas death penalty case, Ayestas v. Davis, which was recently argued at SCOTUS and which relates to resources available to death row defendants in the 5th Circuit to investigate ineffective assistance claims. Between them, the two segments highlight some obscure procedural barriers to defendants who've been victimized by ineffective assistance and potential legislative solutions. Give it a listen:


Find a transcript of our discussion below the jump. And if you've ever been represented by a good lawyer, as the holiday weekend approaches, be thankful.

November Reasonably Suspicious Podcast: Let me be your lawyer dog, or I won't be your man at all ...

Check out the November edition of Just Liberty's Reasonably Suspicious podcast, covering Texas criminal justice policy and politics. We're coming out a little early this month to keep things on the right side of the Thanksgiving holiday. You can listen to the latest episode here, or access it on all the usual channels: iTunes, Google Play, YouTube, or SoundCloud.


If you haven't subscribed yet, take a moment to do so now to make sure you won't miss an episode. Topics this go-round include:

Top Stories

• The Louisiana Supreme Court said a man who told police "Why don't you just give me a lawyer, dawg?" wasn't really asking for a lawyer. But this is common. A recent Texas case denied an attorney on the same basis.
• Risk assessments have come under fire from liberals for generating racial disparities. What are the implications for using them as part of Harris County bail reform?

Game Segment: Tea Leaf Reading
Looking forward to criminal-justice-related interim charges at the Texas Legislature.

• Appropriate treatment, services to offenders aged 17-25 to reduce recidivism, future crime. (See an earlier podcast segment on the topic.)
• Ineffective Assistance of Counsel: Front-end and back-end solutions.

Death and Texas

• US Supreme Court hears oral arguments in Ayestas v. Davis, seeking funds for investigation into an ineffective assistance claim.
• A state district court considers Ex Parte Flores in which the key eyewitness was subjected to hypnosis before changing her ID of the suspect. She at first told police the suspect was a white man with long hair. Mr. Flores is an Hispanic man with short hair.

The Last Hurrah
Rapid fire quick takes:

• USDOJ deleted 70% of tables from the newest edition of the national Uniform Crime Reports.
• A new study says police bodycams haven't changed police behavior. Why is that?
• Rent to own furniture companies as modern debtors prisons.

Public defender for appeals would reduce waste, increase efficiency, protect rights

Lots of appeals in Texas' criminal-court system are filed pro se by people who lack representation, and often they make procedural errors that prevent the courts from ever considering the merits of their case. Here's an example.

My podcast partner, Mandy Marzullo at the Texas Defender Service, has been promoting the idea of a capital public defender for direct appeals (see a related report from TDS), and the chairman of the House Corrections Committee filed legislation to create one (see here for an interview with him that includes a discussion of this topic).

But at least capital defendants all have lawyers of some sort, even if they're too often deficient. The guy in this case had no lawyer at all. He filed his appeal in time, but with the wrong bureaucrat, in the wrong court - an error even the lamest practicing attorney wouldn't have made - and so the merits were never considered. But that's not the end of it: inevitably, the guy ends up filing a habeas corpus petition on the back end - meaning courts have to process his claims twice - all because the defendant had no access to legal counsel for an appeal.

If that seems wasteful, the waste serves a self-interested purpose for some actors in the system: A lot of error, ineffective lawyering, unrecognized rights, and wrongful convictions get swept under the rug that way.

States with appellate divisions at statewide public defenders avoid some of these problems, resulting in a more efficient process where the courts' focus is on the underlying issues at stake, not procedural correctness. But in Texas, if an indigent defendant cannot pay for an attorney to file an appeal - and they are not accused of capital murder - the government does not pay for a lawyer to file anything beyond an initial, pro forma appeal, and too often, as in this case defendants don't even get that much help.* There's a penny-wise-and-pound-foolish aspect to this structure, which too often appears as though it were devised to serve the interests of entrepreneur-attorneys over the goal of defending the constitutional rights of defendants.

RELATED: From Raw Story, "Every year millions try to navigate US courts without a lawyer."

*An earlier version of this post incorrectly stated when the government will pay for indigent appeals. Thanks to a commenter for correcting my error.

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.

Alcala: Legislature should mandate appointed counsel on habeas IAC claims

Texas has done such a poor job of providing recourse to indigent defendants with ineffective trial attorneys, Judge Elsa Alcala observed in a recent dissent to the denial of a habeas corpus writ, that the federal courts have begun allowing state prisoners to bypass state courts entirely, filing ineffective assistance claims in federal habeas writs without state courts having to rule on them. (See an academic paper assessing Texas' position on this topic.)

In this particular writ, the defendant spoke only Spanish and was denied an interpreter at trial because his lawyer said it would distract him. At least two other state Supreme Courts have ruled that there's no valid reason based on trial strategy to deny a defendant an interpreter and Alcala felt as though the petition might have been colorable if not for "nonsensical" prose and circular argumentation in the handwritten, pro se brief.

Although eight states appoint counsel for every indigent habeas petitioner, according to her opinion, Alcala isn't calling for all habeas corpus petitioners to get attorneys. Instead, she's focused on those pursuing ineffective assistance of counsel claims, which effectively are not cognizable via direct appeals and may only be addressed for the first time in habeas writs.

Because numerous states including Texas provide little or no adequate means for redress when defendants receive ineffective assistance from their lawyers, federal courts have changed their practices, said Alcala, specifically to respond to "deficiencies" exhibited in the Texas system. She wrote:

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.

Translated from lawyer-ese, that means SCOTUS declared that defendants could raise the issue in their federal habeas petition even if it the state courts haven't ruled on it. In other words, state high courts weren't exercising their power responsibly on this question so SCOTUS ruled they could be bypassed, reducing state power at the expense of the federal courts.

Alcala takes what to my mind is effectively a strong 10th Amendment stance: Texas courts should handle Texas' business. Her enthusiasm for judicial revanchism, though, wasn't universally shared by her colleagues.

Judge Keller responded defiantly (for her, anyway; the Presiding Judge possesses an extraordinarily genteel manner) in a concurrence to say that Texas' statutes are "firmly in the mainstream" when it comes to appointing counsel for habeas writs. That may be true. But Judge Alcala countered that the law doesn't mean much when the CCA fails to acknowledge the rights granted, whether in the constitution or by statute: "The problem in Texas is not that existing statutes fail to permit this Court to ensure that counsel is appointed to assist applicant in pursuit of his ineffective-assistance-of-counsel claim," she wrote, "but rather is that this Court generally does not utilize those statutes in such a way as to ensure that counsel is appointed for indigent habeas applicants who have colorable ineffective-assistance claims, based either on the substance of the pro se pleadings or in light of the record."

Alcala (and Johnson, who joined her dissent) is basically calling out her colleagues for not doing their jobs. And the implication seems to be that their motives lie outside the case record and have little to do with the legal issues involved. There's an extraordinary moment in the opinion where Alcala gingerly declared: "It has been suggested that Texas already spends enough money on the representation of indigent defendants and enough is enough." N.b. the passive voice and the lack of specificity surrounding who made that suggestion: this is not something being declared in legal briefs but in the judges' chambers behind the scenes. Alcala is pretty clearly reacting to economic anti-taxation arguments she's hearing in conference, which don't actually have much to do with the merits of the case.

Judge Keller believes the CCA grants habeas writs sufficiently often to prove IAC claims are being adequately vetted, offering these data regarding the CCA's habeas docket: "in fiscal year 2015, we remanded 388 habeas cases to the trial court for hearings or affidavits addressing the claims. Most remanded applications are remanded on ineffective assistance claims and most, by far, are filed pro se. We granted relief in 184 cases in FY 2015." Judge Alcala responded that "these cases constitute a very small percentage of the 4,698 habeas applications that were filed in that year." She declared herself "unpersuaded" that petitioners' "occasional success ... renders this project unworthy of our attention."

If the CCA won't fix the problem, opined Alcala, the Legislature should step in: "Until there is action either by the Legislature through statutory enactments," she wrote, "or by this Court through judicial decisions that would expand the availability of appointed counsel on collateral review in order to effectuate the constitutional right to the the effective assistance of counsel at trial, defendants' ineffective-assistance claims will largely go unaddressed."

Manuel Velez leaves death row: Case tainted by flawed forensics, ineffective counsel

Another questionably convicted capital defendant has walked off of death row a free man. Manuel Velez, whose capital murder conviction was overturned based on ineffective assistance of counsel and the state's use of a future dangerousness expert whose testimony was debunked, pleaded guilty to a lesser charge and was released based on time served. Reported the Houston Chronicle:

Manuel Velez, a 48-year-old construction worker from the Rio Grande Valley who had been on death row for the capital murder of his girlfriend's 11-month-old baby, was released Wednesday on parole.

"I'm very happy. I thank God for my lawyers, for my freedom, for getting me out of death row," Velez said as he left prison in Huntsville on his way to Brownsville to be with his family.

Velez was allowed to be paroled after pleading no contest to a lesser charge of injury to a child.

Summed up Huffington Post writer Saki Knato, "To Velez's supporters, his release on Wednesday is the culmination of a legal drama that exposed many of the broader problems plaguing the justice system in Texas and beyond. The case 'contained a litany of injustices, including police misconduct, prosecutorial deception, ineffectiveness of defense counsel, and untruthful witnesses,' said Richard Dieter, head of the Death Penalty Information Center, in a statement." The Cameron County DA, by contrast, insists Velez is guilty. Either way, today he's a free man and to judge from the forensic evidence - which showed the injuries at issue occurred while he was out of town - IMO quite possibly an innocent one.

Pam Colloff's Texas Monthly story on the case may be the best overview for those unfamiliar with his story, doing an especially good job vetting the flawed forensic testimony. See also the trial judge's recommendation that Velez receive a new trial based on having received ineffective assistance of counsel. And here's a statement from Velez's attorney from the national ACLU.

MORE: From the Texas Observer. AND MORE: From Breitbart Texas which prematurely (from a legal perspective) declared Velez "innocent" TDCAA tweeted in retort, "Release on parole, yes. Innocent, no."

CCA: Texas' improper photography statute unconstitutional, Hannah Overton salt poisoning conviction overturned

Yesterday, the Texas Court of Criminal Appeals threw out Hannah Overton's capital murder conviction based on ineffective assistance of counsel and ordered a new trial. See coverage from Texas Monthly and the San Antonio Express-News.

Also on yesterday's hand-down list, the court invalidated Texas' improper photography statute as unconstitutional on First Amendment grounds. See Chuck Lindell's coverage at the Austin Statesman. Last year the court struck down Texas' online solicitation of a minor statute on First Amendment grounds as well, readers may recall, and Houston attorney Mark Bennett thinks there's more to come.

Bench slap: SCOTUS says Texas capital habeas process could 'create significant unfairness'

Grits doesn't usually follow death-penalty topics but I can never resist a good bench slapping, particularly when SCOTUS decides to show the back of its hand to our friends on the Texas Court of Criminal Appeals, who rival the federal 9th Circuit as a favorite US Supreme Court whipping boy. (N.b., SCOTUS was technically rebuffing the Fifth Circuit for approving Texas' methods; see the correction below.)

This week, SCOTUSBlog has the story of another US Supreme Court bench slapping of the Texas Court of Criminal Appeals Fifth Circuit Court of Appeals in Trevino vs. Thaler, which ruled that Texas' bifurcated death penalty review procedure - where direct appeals and habeas corpus process occur simultaneously - “makes it ‘virtually impossible for appellate counsel to adequately present an ineffective assistance [of trial counsel] claim’ on direct review.” The Texas system, said the majority, "would create significant unfairness." SCOTUSBlog said the case is "Texas- (and capital-) specific." For judges, that's the equivalent of a student being singled out in class for low marks and being ordered to "shape up!" Again.

From the New York Times report you would think the dissenters objected on grammatical or perhaps laundry-related grounds. "In dissent, Chief Justice Roberts said the Martinez decision had announced a 'crisp limit.' 'But today,' he added, 'the court takes all the starch out of its rule with an assortment of adjectives, adverbs and modifying clauses.' Chief Justice Roberts had voted with the majority in Martinez, as had Justice Alito, who joined the chief justice’s dissent Tuesday."

The SCOTUS  majority essentially accused the Texas Court of Criminal Appeals Fifth Circuit of sophistry, opining that “a distinction between (1) a State that denies permission to raise [a] claim on direct appeal and (2) a State that in theory grants permission but, as a matter of procedural design and systemic operation, denies a meaningful opportunity to do so is a distinction without a difference.” Ouch!

CORRECTION: In the comments, Rob Owen, who has forgotten more about death penalty litigation than I will ever know, pointed out that the Supreme Court was technically rebuffing the Fifth Circuit for approving Texas' system, so it was them receiving the bench slap, not the CCA. Grits regrets the error. The decision, however, does indict the Texas system specifically and singularly and will require the CCA to alter its methods for handling ineffective assistance claims in some fashion..