Post by Anja Nieser on Sept 25, 2006 0:29:42 GMT -5
Shoddy lawyering can prove fatal in death row appeals
With his client's life on the line, the lawyer appointed to file the death
row inmate's final state appeal cobbled together arguments that were
incomplete, vague and, in at least one place, just plain wrong.
They perplexed the prosecutor and provoked a 606-page response from the
judge.
"Applicant totally misinterprets what actually occurred in this case,"
State District Judge Noe Gonzalez of Edinburg wrote about one of the
attorney's claims.
Appalled by the lawyer's work, a committee of attorneys and citizens
formally complained to the agency that polices attorney misconduct, the
State Bar of Texas.
The result?
The attorney, Mark Alexander of McAllen, remains on the state's list of
136 lawyers who can be appointed to the cases that challenge convictions
and help ensure no one unfairly convicted reaches the execution chamber.
The State Bar dismissed the grievance against Alexander. His former
client, Arturo Eleazar Diaz, remains on death row, arguing the courts
never really reviewed his case because Alexander botched the appeal.
Confusing as they may have been, Alexander's arguments are the last words
Texas courts are likely to hear about Diaz. They remain fixed in the
record, an example of a dilemma apparent to observers of all political
stripes:
Texas tolerates and even finances questionable legal work in the closing
chapters of its death penalty cases - the court challenges known as
applications for writs of habeas corpus.
"It's a problem. It needs to be addressed," said Judge Cheryl Johnson, a
Republican on the Texas Court of Criminal Appeals. "But I don't think
there are any easy solutions to it."
Examples of troubling habeas cases abound, activists say. Just last month,
Texas executed Justin Fuller, whose appointed lawyer filed a habeas
challenge with rambling claims, glaring typos and incoherent repetitions.
Another execution is scheduled in January for an inmate whose appointed
lawyer filed two pages - upward of 100 is more common - that raised only
one claim, and experts say it was fatally flawed.
Yet another habeas attorney failed to show the main witness against his
client had recanted. With help from other lawyers, that inmate, Anthony
Charles Graves, now is off death row and awaiting a retrial.
The habeas attorney's job is to catch misconduct and mistakes made by the
defendant's trial lawyers, as well as the investigators, prosecutors,
judges and jurors who touched the case beforehand.
If the state habeas attorney misses a detail, the inmate may never get
another chance to raise it. An inmate can try filing in federal court,
but, except in rare extenuating circumstances, federal judges won't
consider anything that wasn't already raised in state court.
It's an area of law that goes largely unchecked by traditional safeguards
against shoddy legal work. For instance:
The State Bar disciplines lawyers who file nothing at all for their
clients, but not necessarily attorneys who file worthless paperwork. It
leaves those to malpractice lawsuits.
Lawyers who mishandle divorces, employment disputes or other civil matters
can be sued by their clients. But not in criminal cases. The law
essentially forbids malpractice claims from convicts.
The Court of Criminal Appeals decides who's qualified to handle habeas
appointments, but has done little, if anything, to ensure lawyers actually
live up to their credentials.
Trial attorneys in death penalty cases must, by law, perform to certain
constitutional standards. When, for example, lawyers fail to adequately
investigate, their clients can get do-overs. Not in Texas' habeas cases.
By contrast, 14 of the nation's 37 states with the death penalty hold
habeas attorneys to the same standards as trial lawyers.
"We don't have any watchdog organization that checks for quality control"
in capital habeas cases, said Catharine G. Burnett, a South Texas College
of Law professor and a member of the committee that complained about
Alexander.
A poor track record
Habeas corpus is the Latin term for the centuries-old legal tool that
double-checks the fairness of a conviction or punishment. In capital
cases, it acts as the executioner's gatekeeper.
Unlike the direct appeals that automatically follow every death sentence
and examine what might have gone wrong at trial, applications for writs of
habeas corpus dig deeper.
Not confined to what occurred in the courtroom, habeas attorneys are
supposed to consider the whole picture, from what detectives did at the
crime scene to what jurors discussed in the deliberation room.
It's a daunting responsibility, and many qualified attorneys steer clear
of it, partly because they say the amount the state will pay - up to
$25,000 - won't cover what's required for the sizable task. Comparable
cases in federal court normally pay up to $35,000 in legal fees alone, not
including investigative expenses.
Texas started supplying habeas lawyers for death row inmates in 1995. 7
years later, a nonprofit monitor of capital cases, the Texas Defender
Service, looked at what the state was getting for its money.
Reading all but a dozen of the 263 habeas applications bankrolled by
Texas, the nonprofit found nearly 40 % had fatal technical flaws and
provided "nothing for the courts to consider."
Since the study, "nothing has improved," said Andrea Keilen, director of
the Defender Service.
Mark Alexander was preparing a habeas application around the time the
Defender Service completed its study. His client, Arturo Eleazar Diaz, had
been convicted of stabbing his victim dozens of times during a 1999
robbery in McAllen.
Filed in 2002, Alexander's petition crammed 19 separate arguments into 35
pages. Its brevity came at the expense of clarity.
When Alexander complained the prosecutor had made inflammatory remarks to
the jury, he never cited specifics. Judge Gonzalez responded with a shrug,
writing: "It is practically impossible to discern which particular
comment, if any, he believes had been objectionable."
When Alexander criticized the trial attorneys for failing to discover
potentially significant evidence, specifically "the tape" and "all the
witnesses," he never identified the tape. Or the witnesses.
2 paragraphs long, his final assertion was that jurors hadn't been told
how long parole laws would keep Diaz locked up if he received a life
sentence - crucial information for any jury weighing between prison time
and lethal injection.
"Simply not true," the judge stated in his order rejecting all Alexander's
claims. The record showed the jury had been given precisely that
information.
What Alexander's petition failed to include was Diaz's contention that his
trial lawyer spent only 15 minutes discussing the plea bargain offered by
prosecutors.
Had Diaz better understood the plea and the risks of trial, the inmate
says, he would have accepted a life sentence. When he tried raising this
issue in federal court, the judge there said it was too late.
No way to grade quality
By chance, Diaz's case caught the attention of a State Bar group concerned
about the quality of appointed counsel, the Committee on Legal Services to
the Poor in Criminal Matters.
Alarmed by the Defender Service's study, committee members decided to look
at random habeas petitions. Overall, they weren't impressed. One case
especially disturbed them.
The committee's minutes show the group voted 8-1 to file a grievance.
Committee members wouldn't name in interviews the subject of their
complaint, but court documents identified Alexander as the target and,
although he says it was unjustified, he acknowledged the grievance.
3 months ago, committee members learned the State Bar's disciplinary
office had dismissed the complaint against Alexander without a hearing. By
its standards, his work didn't violate the bar's rules.
"It was frustrating to us," said Michael K. Moore, a committee member and
political science professor at the University of Texas at Arlington. "It
never saw the light of day."
Reached by phone, Alexander said the grievance, together with the heart
attack he survived about a year ago, have convinced him to steer clear of
capital cases.
Alexander said his medical problems have blurred his memory so that he no
longer remembers enough to explain every assertion in Diaz's case. But, he
insisted he labored long and dutifully on the case.
The $13,040 bill he submitted to Hidalgo County listed 326 hours of work,
the equivalent of 2 months. Primarily, Alexander said, he knew the habeas
represented Diaz's last chance to present new claims.
As a result, Alexander said he alleged things he couldn't prove simply to
put them on the record. That way, if someone eventually found evidence to
bolster them, the issues could be resurrected in federal court.
It wasn't a perfect legal brief, Alexander concedes, but in his defense he
says it was only his second habeas case. "I was learning," he said.
"It wasn't like I just neglected it or whatever," he added. "I had reasons
for what I did. I think my reasoning was sound."
Neglecting a case would violate ethical rules for attorneys. The State Bar
regularly disciplines lawyers who collect fees and then file nothing or
abandon a case before it's over. But if attorneys file glaringly bad
claims, the bar typically does nothing.
The bar's investigators find it difficult to prove that someone who worked
on a brief for more than 100 hours neglected the case, said Betty
Blackwell, chairwoman of the State Bar's Commission for Lawyer Discipline.
Grading the quality of legal briefs is another challenge.
"Are you going to discipline somebody for a C, D or F?" she said. "The
rules don't really address that."
Blackwell, like many others, believes the job of watchdog belongs to the
Court of Criminal Appeals, the tribunal that reviews every habeas
application and vets the list of attorneys who can be appointed to capital
habeas cases.
Members of the court, in turn, want the State Bar to take the lead.
Cheryl Johnson, one of two judges at the court who vet the list of habeas
lawyers, said the nine judges there disagree about what to do with
attorneys who submit abysmal habeas petitions.
Some believe that only a formal reprimand from the State Bar would justify
yanking a lawyer's name from the roster. That was the issue with at least
one attorney whose name, Johnson said, doesn't belong on the list.
"I've been trying to get him off since I reached the court in 1999," she
said, "and I cannot get any support for it because he has no disciplinary
history with the bar."
A check on the system
As with anything involving the death penalty, personal biases cloud the
discussion of habeas cases.
Judges and lawyers comfortable with capital punishment won't necessarily
be troubled by a habeas application that fails to make any reasonable
arguments.
In their eyes, lousy arguments in a habeas case are likely the sign of a
defense lawyer grasping at straws because the conviction was fair and
just.
"I'm not aware of and I don't believe there are cases where there's gross
injustices based on ineffective assistance at the post-conviction writ
stage," said Williamson County District Attorney John Bradley, who once
worked at the Court of Criminal Appeals.
By contrast, opponents of the death penalty believe reasonable claims can
be found in most capital cases. To them, superficial habeas applications
signal a lack of effort or ability.
"In every case I know of ... where someone didn't do their duty as a
habeas lawyer and someone else came along and did it, there were new
claims that were found," said Jim Marcus, a lawyer with the University of
Texas Capital Punishment Clinic.
Marcus can point to such a case in Bexar County. As much as any, it
demonstrates why the quality of habeas counsel matters.
Ricky Eugene Kerr was sentenced to death in 1995 for the murder of his new
landlady and her 42-year-old son after they cut off his water and moved to
evict him.
His appointed habeas lawyer, Robert A. McGlohon Jr., had 3 years'
experience as a lawyer and, though he had been a staff attorney for the
Court of Criminal Appeals, he never had handled a death penalty case.
Suffering from a debilitating illness and a serious misunderstanding of
habeas law, McGlohon filed a single, generic claim critiquing habeas law.
Nowhere did his brief say anything about Kerr's trial.
The trial court, State District Judge Sharon MacRae, rejected the
petition. So did the Court of Criminal Appeals.
A few months later, Marcus, then with the Defender Service, interceded. He
took the case to federal court, where he showed how McGlohon had
mishandled Kerr's habeas application. The federal judge was appalled.
Concluding that Kerr never had a fair habeas petition, U.S. District Judge
Orlando Garcia kicked the case back to the state courts. Confronted by the
judge's ruling, the Court of Criminal Appeals relented and made an unusual
exception. It allowed him to refile his habeas petition.
The 2nd time around, Kerr was represented by Marcus and Kathryn Kase, an
attorney with the Defender Service. They had plenty to say about Kerr's
trial.
They showed that Kerr's trial attorneys had never shown jurors a full
picture of the man on trial. The defense team had been so confident it
would win, it only started preparing for the punishment phase after the
guilty verdict.
By then it was too late to complete the detailed research expected in
capital cases. Kerr's relatives testified, but the jury never heard
several potentially mitigating details about the tattooed defendant with a
history of domestic violence and petty crimes.
Kerr had endured an abusive childhood and had helped care for 2 brothers
with mental retardation and an ailing grandmother. He had a history of
head injuries, drug abuse and learning disabilities, possibly because of
fetal alcohol syndrome.
At least 1 juror said the new information might have convinced her to
spare Kerr, and Judge MacRae revised her previous findings. Earlier this
year MacRae sent her conclusions to the Court of Criminal Appeals, where
they are under review.
This time, she urged the court throw out Kerr's death sentence.
(source: San Antonio Express-News)
With his client's life on the line, the lawyer appointed to file the death
row inmate's final state appeal cobbled together arguments that were
incomplete, vague and, in at least one place, just plain wrong.
They perplexed the prosecutor and provoked a 606-page response from the
judge.
"Applicant totally misinterprets what actually occurred in this case,"
State District Judge Noe Gonzalez of Edinburg wrote about one of the
attorney's claims.
Appalled by the lawyer's work, a committee of attorneys and citizens
formally complained to the agency that polices attorney misconduct, the
State Bar of Texas.
The result?
The attorney, Mark Alexander of McAllen, remains on the state's list of
136 lawyers who can be appointed to the cases that challenge convictions
and help ensure no one unfairly convicted reaches the execution chamber.
The State Bar dismissed the grievance against Alexander. His former
client, Arturo Eleazar Diaz, remains on death row, arguing the courts
never really reviewed his case because Alexander botched the appeal.
Confusing as they may have been, Alexander's arguments are the last words
Texas courts are likely to hear about Diaz. They remain fixed in the
record, an example of a dilemma apparent to observers of all political
stripes:
Texas tolerates and even finances questionable legal work in the closing
chapters of its death penalty cases - the court challenges known as
applications for writs of habeas corpus.
"It's a problem. It needs to be addressed," said Judge Cheryl Johnson, a
Republican on the Texas Court of Criminal Appeals. "But I don't think
there are any easy solutions to it."
Examples of troubling habeas cases abound, activists say. Just last month,
Texas executed Justin Fuller, whose appointed lawyer filed a habeas
challenge with rambling claims, glaring typos and incoherent repetitions.
Another execution is scheduled in January for an inmate whose appointed
lawyer filed two pages - upward of 100 is more common - that raised only
one claim, and experts say it was fatally flawed.
Yet another habeas attorney failed to show the main witness against his
client had recanted. With help from other lawyers, that inmate, Anthony
Charles Graves, now is off death row and awaiting a retrial.
The habeas attorney's job is to catch misconduct and mistakes made by the
defendant's trial lawyers, as well as the investigators, prosecutors,
judges and jurors who touched the case beforehand.
If the state habeas attorney misses a detail, the inmate may never get
another chance to raise it. An inmate can try filing in federal court,
but, except in rare extenuating circumstances, federal judges won't
consider anything that wasn't already raised in state court.
It's an area of law that goes largely unchecked by traditional safeguards
against shoddy legal work. For instance:
The State Bar disciplines lawyers who file nothing at all for their
clients, but not necessarily attorneys who file worthless paperwork. It
leaves those to malpractice lawsuits.
Lawyers who mishandle divorces, employment disputes or other civil matters
can be sued by their clients. But not in criminal cases. The law
essentially forbids malpractice claims from convicts.
The Court of Criminal Appeals decides who's qualified to handle habeas
appointments, but has done little, if anything, to ensure lawyers actually
live up to their credentials.
Trial attorneys in death penalty cases must, by law, perform to certain
constitutional standards. When, for example, lawyers fail to adequately
investigate, their clients can get do-overs. Not in Texas' habeas cases.
By contrast, 14 of the nation's 37 states with the death penalty hold
habeas attorneys to the same standards as trial lawyers.
"We don't have any watchdog organization that checks for quality control"
in capital habeas cases, said Catharine G. Burnett, a South Texas College
of Law professor and a member of the committee that complained about
Alexander.
A poor track record
Habeas corpus is the Latin term for the centuries-old legal tool that
double-checks the fairness of a conviction or punishment. In capital
cases, it acts as the executioner's gatekeeper.
Unlike the direct appeals that automatically follow every death sentence
and examine what might have gone wrong at trial, applications for writs of
habeas corpus dig deeper.
Not confined to what occurred in the courtroom, habeas attorneys are
supposed to consider the whole picture, from what detectives did at the
crime scene to what jurors discussed in the deliberation room.
It's a daunting responsibility, and many qualified attorneys steer clear
of it, partly because they say the amount the state will pay - up to
$25,000 - won't cover what's required for the sizable task. Comparable
cases in federal court normally pay up to $35,000 in legal fees alone, not
including investigative expenses.
Texas started supplying habeas lawyers for death row inmates in 1995. 7
years later, a nonprofit monitor of capital cases, the Texas Defender
Service, looked at what the state was getting for its money.
Reading all but a dozen of the 263 habeas applications bankrolled by
Texas, the nonprofit found nearly 40 % had fatal technical flaws and
provided "nothing for the courts to consider."
Since the study, "nothing has improved," said Andrea Keilen, director of
the Defender Service.
Mark Alexander was preparing a habeas application around the time the
Defender Service completed its study. His client, Arturo Eleazar Diaz, had
been convicted of stabbing his victim dozens of times during a 1999
robbery in McAllen.
Filed in 2002, Alexander's petition crammed 19 separate arguments into 35
pages. Its brevity came at the expense of clarity.
When Alexander complained the prosecutor had made inflammatory remarks to
the jury, he never cited specifics. Judge Gonzalez responded with a shrug,
writing: "It is practically impossible to discern which particular
comment, if any, he believes had been objectionable."
When Alexander criticized the trial attorneys for failing to discover
potentially significant evidence, specifically "the tape" and "all the
witnesses," he never identified the tape. Or the witnesses.
2 paragraphs long, his final assertion was that jurors hadn't been told
how long parole laws would keep Diaz locked up if he received a life
sentence - crucial information for any jury weighing between prison time
and lethal injection.
"Simply not true," the judge stated in his order rejecting all Alexander's
claims. The record showed the jury had been given precisely that
information.
What Alexander's petition failed to include was Diaz's contention that his
trial lawyer spent only 15 minutes discussing the plea bargain offered by
prosecutors.
Had Diaz better understood the plea and the risks of trial, the inmate
says, he would have accepted a life sentence. When he tried raising this
issue in federal court, the judge there said it was too late.
No way to grade quality
By chance, Diaz's case caught the attention of a State Bar group concerned
about the quality of appointed counsel, the Committee on Legal Services to
the Poor in Criminal Matters.
Alarmed by the Defender Service's study, committee members decided to look
at random habeas petitions. Overall, they weren't impressed. One case
especially disturbed them.
The committee's minutes show the group voted 8-1 to file a grievance.
Committee members wouldn't name in interviews the subject of their
complaint, but court documents identified Alexander as the target and,
although he says it was unjustified, he acknowledged the grievance.
3 months ago, committee members learned the State Bar's disciplinary
office had dismissed the complaint against Alexander without a hearing. By
its standards, his work didn't violate the bar's rules.
"It was frustrating to us," said Michael K. Moore, a committee member and
political science professor at the University of Texas at Arlington. "It
never saw the light of day."
Reached by phone, Alexander said the grievance, together with the heart
attack he survived about a year ago, have convinced him to steer clear of
capital cases.
Alexander said his medical problems have blurred his memory so that he no
longer remembers enough to explain every assertion in Diaz's case. But, he
insisted he labored long and dutifully on the case.
The $13,040 bill he submitted to Hidalgo County listed 326 hours of work,
the equivalent of 2 months. Primarily, Alexander said, he knew the habeas
represented Diaz's last chance to present new claims.
As a result, Alexander said he alleged things he couldn't prove simply to
put them on the record. That way, if someone eventually found evidence to
bolster them, the issues could be resurrected in federal court.
It wasn't a perfect legal brief, Alexander concedes, but in his defense he
says it was only his second habeas case. "I was learning," he said.
"It wasn't like I just neglected it or whatever," he added. "I had reasons
for what I did. I think my reasoning was sound."
Neglecting a case would violate ethical rules for attorneys. The State Bar
regularly disciplines lawyers who collect fees and then file nothing or
abandon a case before it's over. But if attorneys file glaringly bad
claims, the bar typically does nothing.
The bar's investigators find it difficult to prove that someone who worked
on a brief for more than 100 hours neglected the case, said Betty
Blackwell, chairwoman of the State Bar's Commission for Lawyer Discipline.
Grading the quality of legal briefs is another challenge.
"Are you going to discipline somebody for a C, D or F?" she said. "The
rules don't really address that."
Blackwell, like many others, believes the job of watchdog belongs to the
Court of Criminal Appeals, the tribunal that reviews every habeas
application and vets the list of attorneys who can be appointed to capital
habeas cases.
Members of the court, in turn, want the State Bar to take the lead.
Cheryl Johnson, one of two judges at the court who vet the list of habeas
lawyers, said the nine judges there disagree about what to do with
attorneys who submit abysmal habeas petitions.
Some believe that only a formal reprimand from the State Bar would justify
yanking a lawyer's name from the roster. That was the issue with at least
one attorney whose name, Johnson said, doesn't belong on the list.
"I've been trying to get him off since I reached the court in 1999," she
said, "and I cannot get any support for it because he has no disciplinary
history with the bar."
A check on the system
As with anything involving the death penalty, personal biases cloud the
discussion of habeas cases.
Judges and lawyers comfortable with capital punishment won't necessarily
be troubled by a habeas application that fails to make any reasonable
arguments.
In their eyes, lousy arguments in a habeas case are likely the sign of a
defense lawyer grasping at straws because the conviction was fair and
just.
"I'm not aware of and I don't believe there are cases where there's gross
injustices based on ineffective assistance at the post-conviction writ
stage," said Williamson County District Attorney John Bradley, who once
worked at the Court of Criminal Appeals.
By contrast, opponents of the death penalty believe reasonable claims can
be found in most capital cases. To them, superficial habeas applications
signal a lack of effort or ability.
"In every case I know of ... where someone didn't do their duty as a
habeas lawyer and someone else came along and did it, there were new
claims that were found," said Jim Marcus, a lawyer with the University of
Texas Capital Punishment Clinic.
Marcus can point to such a case in Bexar County. As much as any, it
demonstrates why the quality of habeas counsel matters.
Ricky Eugene Kerr was sentenced to death in 1995 for the murder of his new
landlady and her 42-year-old son after they cut off his water and moved to
evict him.
His appointed habeas lawyer, Robert A. McGlohon Jr., had 3 years'
experience as a lawyer and, though he had been a staff attorney for the
Court of Criminal Appeals, he never had handled a death penalty case.
Suffering from a debilitating illness and a serious misunderstanding of
habeas law, McGlohon filed a single, generic claim critiquing habeas law.
Nowhere did his brief say anything about Kerr's trial.
The trial court, State District Judge Sharon MacRae, rejected the
petition. So did the Court of Criminal Appeals.
A few months later, Marcus, then with the Defender Service, interceded. He
took the case to federal court, where he showed how McGlohon had
mishandled Kerr's habeas application. The federal judge was appalled.
Concluding that Kerr never had a fair habeas petition, U.S. District Judge
Orlando Garcia kicked the case back to the state courts. Confronted by the
judge's ruling, the Court of Criminal Appeals relented and made an unusual
exception. It allowed him to refile his habeas petition.
The 2nd time around, Kerr was represented by Marcus and Kathryn Kase, an
attorney with the Defender Service. They had plenty to say about Kerr's
trial.
They showed that Kerr's trial attorneys had never shown jurors a full
picture of the man on trial. The defense team had been so confident it
would win, it only started preparing for the punishment phase after the
guilty verdict.
By then it was too late to complete the detailed research expected in
capital cases. Kerr's relatives testified, but the jury never heard
several potentially mitigating details about the tattooed defendant with a
history of domestic violence and petty crimes.
Kerr had endured an abusive childhood and had helped care for 2 brothers
with mental retardation and an ailing grandmother. He had a history of
head injuries, drug abuse and learning disabilities, possibly because of
fetal alcohol syndrome.
At least 1 juror said the new information might have convinced her to
spare Kerr, and Judge MacRae revised her previous findings. Earlier this
year MacRae sent her conclusions to the Court of Criminal Appeals, where
they are under review.
This time, she urged the court throw out Kerr's death sentence.
(source: San Antonio Express-News)