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.

CCA ruling let juries hear about mental impairment, but not always from the mentally impaired

A couple of notable items from the Texas Court of Criminal Appeals related to mental illness:

The search for diminished capacity in Texas law
First, from the Fort Worth Star Telegram, Martha Deller has the story, "Appellate rulings sought to set guidelines for mental impairment defenses" (May 10), which opens:

No one knows for certain why a Tarrant County jury rejected a defense related to post-traumatic stress disorder in the murder trial of Marine veteran Eric Acevedo.

But legal experts agree that the Texas Court of Criminal Appeals needs to rule more definitively whether evidence of mental impairment -- short of the tougher insanity defense -- is admissible in deciding guilt or innocence, and if so, when and how it can be used.

Texas hasn't allowed jurors to consider mental health issues, short of insanity, in determining a defendant's guilt. Some other states, though, allow juries to consider whether a mental affliction renders a person incapable of forming the intent to commit a crime.

Acevedo's attorney, Jim Lane, said that Texas needs a way to take into account the mental impairments suffered by an increasing number of combat veterans.

"Insanity has such a different meaning than combat PTSD," he said. "I'd hate to think that everyone coming home from Iraq is crazy, but there is diminished capacity for a combat veteran suffering from PTSD. There should be a niche for that."

Prosecutors fear that allowing mental health defenses could overwhelm the court system with such claims. But an official of the Vietnam Veterans of America says the opposite is true.

The story includes this description of recent CCA rulings on the topic:

Richardson attorney Lydia Brandt concedes that justices have not accepted the diminished-capacity defense per se.

She has argued appeals of lower court rulings disallowing testimony on mental impairment. In one case, the Court of Criminal Appeals in 2005 ruled for the first time that mental impairments can be introduced into evidence. But the justices also said that the trial judge in the case properly allowed the testimony but not the expert's opinion that the man lacked the capacity to intentionally commit the crime.

The court reaffirmed that opinion in 2008, reversing the conviction of a man who shot at police officers. The court said the trial judge erred in not allowing testimony that the man was mentally impaired and believed that the officers were Muslims.

Brandt said the law is still evolving through court opinions, which are making it increasingly clear that all types of mental impairment -- not just PTSD -- are admissible in criminal trials.

But she said she is not surprised that most juries do not accept the mental-impairment defense, just as they haven't accepted the insanity defense.

"I don't think people know what intent means," she said. "I don't think district attorneys know. They're turning it into a strict liability crime. He did it; therefore he intended to do it. That's why prosecutors are so adamantly against a diminished-capacity doctrine."

Judges may deny right of self-representation to the mentally ill
Meanwhile, Liberty and Justice for Y'all brings word of a unanimous CCA case ruling that defendants may be competent to stand trial but incompetent to represent themselves pro se. They were following the lead of SCOTUS in Indiana v. Edwards, a case with which I strongly disagreed which I earlier described thusly:

According to the New York Times, Justice Stephen Breyer's decision emphasized the "spectacle" of letting mentally ill people pontificate on their own behalf in open court:

Noting that the court has referred to the right to self-representation as an aspect of individual dignity, Justice Breyer said dignity was lacking in the “spectacle that could well result” from a mentally ill defendant’s efforts, which he said were “at least as likely to prove humiliating as ennobling.”

Well, Justice Breyer - what about the "spectacle" of filling up our prisons with mentally ill people so deranged that merely allowing them to articulate their own defense to charges against them is too "humiliating" for the courts to bear?

Color me unsurprised that this is one SCOTUS decision where the Texas CCA won't buck and kick against judicial activism by the feds or assert their federalist-based authority to differ with the Supreme Court.

Here's the bottom line for me: If the defendant can't meaningfully participate in his or her own defense, they're not competent to stand trial. If they can, there's little remaining argument for denying them the right to proceed pro se. SCOTUS and the CCA want to have it both ways, so I'll repeat here what I said of the SCOTUS case: "This was an activist decision by judges for judges to make their jobs and lives easier, leaving for some other day any latent concern for either the rights of mentally ill people or the righteousness and public policy consequences of using the criminal justice system as de facto asylums."

UPDATE: A reader sent in this request via email:

I'd like to read your spin on this entry "Judges may deny right of self-representation to the mentally ill," and applying it to the Scott Panetti (Death Row) debacle.

That is a tough hair to split. I'm still working on it.

I responded:

Thanks a lot. On Panetti, I'd reiterate what I said in the post: "If the defendant can't meaningfully participate in his or her own defense, they're not competent to stand trial. If they can, there's little remaining argument for denying them the right to proceed pro se."

And to me (though I'm not a lawyer), the converse would be true. If a judge thinks a defendant incompetent to proceed pro se, they're not going to be able to meaningfully participate in their own defense.

Just pick: They're competent or not. The answer can't (or at least shouldn't) be "both."

'Going it alone'

Go read the Texas Tribune's Reeve Hamilton's story on pro se litigants and the functional challenges they pose to a court system designed to service attorneys. Here are a few tidbits that jumped out at me:

"The Bexar County Civil District Courts saw 1,639 pro se litigants in March alone — approximately 31 per day."

"Lisa Rush, manager of the Travis County Law Library & Courthouse Self-Help Center, says members of the legal community 'need to reexamine who their customers are' as an increasing number of lay people are researching cases on their own. She has scaled back on expenses for law books and invested in bolstering the library’s online presence."

"People representing themselves who need to do research can access only 15 staffed law libraries in all of Texas."

"Fort Bend County Clerk Dianne Wilson has posted every document ever recorded in her office online, and she says a local judge has provided fill-in-the-blank scripts for what to say in court when seeking an uncontested divorce."

From Texas Supreme Court Chief Justice Wallace Jefferson in a recent op ed: “These pro se litigants must navigate the tangle of rules and precedent of their own, often forfeiting their rights on legal technicalities that might easily have been cured. Because there is no adequate system in place to assist self-represented citizens seeking access to the courts, confusion and frustration reigns for the litigant, the courts, and court personnel.”