Lethally Deficient Direct Appeals in Texas Death Penalty Cases Cover: Texas Department of Criminal Justice
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Lethally Deficient Direct Appeals in Texas Death Penalty Cases Cover: Texas Department of Criminal Justice First edition © 2016, Texas Defender Service. All rights reserved, except as follows: Free copies of this report may be made for personal use. Reproduction of more than five (5) copies for personal use and reproduction for commercial use are prohibited without the written permission of the copyright owner. The work may be accessed for reproduction pursuant to these restrictions. B WWW.TEXASDEFENDER.ORG ACKNOWLEDGMENTS Texas DefenDer serviCe is graTeful To The many people who workeD Tirelessly on This project, inCluDing Jodie Anderson, Rebecca Bernhardt, Anna Chestnut, Amelia Gerson, Eugene Haller, Rhiannon Hama, Daniel Hatoum, Brandon-Rashad Kenny, Jim Marcus, Catherine Morton, Julie Pennington, Ian Peterson, Raoul Schonemann, Ashley Steele, Jordan Steiker, and Brian Stull. TDS sent Public Information Act requests to district attorney, county clerk, county treasurer, and county auditor offices across Texas and reviewed extensive records on file at the Court of Criminal Appeals. The cooperation of these institutions and their employees with TDS’ research is appreciated. The Initiative for Public Interest Law at Yale provided support to Fellow Ashley Steele to research and assist in drafting this report. TDS also received general support for policy work from Atlantic Philanthropies, Open Society Foundation, and Vital Projects Fund during the research and writing of this report. TDS thanks these institutions for their investment in its vital work. LETHALLY DEFICIENT: DIRECT APPEALS IN TEXAS DEATH PENALTY CASES i ii WWW.TEXASDEFENDER.ORG TEXAS DEFENDER SERVICE Texas Defender Service (TDS) is a nonprofit law firm with offices in Houston and Austin. Started in 1995, TDS’ mission is to establish a fair and just criminal justice system in Texas, with an emphasis on improving the quality of justice afforded those facing the death penalty. There are four aspects of our work, each of which seek to advance reforms that impact the criminal justice system as a whole and to establish an indigent defense system in Texas that allows all those accused of a crime ac- cess to competent counsel: (a) direct representation of death-sentenced prisoners, (b) consulting, training, case-tracking, and policy reform at the post-conviction level, (c) consulting, training, and policy reform focused at the trial level, and (d) systemic research and publication of reports to guide public policy. 1927 Blodgett Street 510 S. Congress Avenue Houston, Texas 77004 Suite 304 712-222-7788 Austin, Texas 78704 512-320-8300 www.texasdefender.org Facebook.com/TexasDefender @TexDefender LETHALLY DEFICIENT: DIRECT APPEALS IN TEXAS DEATH PENALTY CASES iii iv WWW.TEXASDEFENDER.ORG CONTENTS Executive Summary ............................................................ vi Introduction .................................................................. 1 I. Capital Case Review Process ............................................... 5 II. The Right To Counsel in Death Penalty Proceedings .......................... 8 III. Indigent Direct Appeal Representation in Texas .............................. 10 IV. Systemic Weaknesses in The Provision of Direct Appeal Representation to Texas Death Row Inmates ................................. 11 A. The Resource Disparity Between the Prosecution and the Defense ......... 12 B. Inadequate Attorney Screening, Case Distribution and Monitoring ......... 17 C. Inadequate Attorney Caseload Control and Compensation ................ 22 V. Deficient Legal Representation ............................................. 29 A. Inadequate Legal Briefing ............................................. 30 B. Frequent Re-Use of Boilerplate Arguments .............................. 34 C. Minimal Client Communication ....................................... 38 D. Routine Avoidance of Discretionary Legal Procedures .................... 42 Conclusion ................................................................... 48 Appendices ................................................................... A-1 LETHALLY DEFICIENT: DIRECT APPEALS IN TEXAS DEATH PENALTY CASES v Executive Summary n inDigenT CapiTal DefenDanT’s righT To Trial Counsel has been a Com- ponent of the State of Texas’ criminal justice system since its inception. The state’s first Code of Criminal Procedure in 1857 directed trial courts to appoint counsel to represent any indigent defendant charged with a capital offense. This enact- ment gave Texas death penalty defendants the right to trial counsel 75 years be- fore the United States Supreme Court recognized this right in Powell v. Alabama, 247 U.S. 45 (1932). Notwithstanding this history, Texas has failed to ensure that capital defen- dants receive effective representation throughout death penalty cases. During the 1990s and early 2000s, na- tionalA news media and legal services organizations drew attention to pervasive problems with the performance of capital defense counsel in Texas, ranging from sleeping trial lawyers to post-conviction counsel who used the same writ for every client. Reform efforts focused on improving defense representation at trial and in state habeas corpus proceedings. In 2007, the Regional Public Defender for Capital Cases, which represents indigent capital defendants in more than 170 rural Texas counties, opened its doors. In 2009, the Texas Legislature cre- ated the Office of Capital Writs, which represents death-sentenced individuals in state post-conviction pro- ceedings. Direct appeals, and the quality of representation provided to death row inmates in these proceedings, have remained unexamined. The following report is the first evaluation of de- pellate record of each death penalty direct appeal— fense counsel performance in death penalty direct i.e., appellate briefs, motions filed with the Court of appeal cases in Texas. These proceedings are impor- Criminal Appeals, orders on party motions, corre- tant because they allow for full and unencumbered spondence with the Court and among the parties, and review of record claims—i.e., errors that are reflected opinions—decided during our survey window. in the trial record. Habeas proceedings, which typi- Our review uncovered multiple and severe deficits cally follow direct appeal, might not permit review in the provision of capital direct appeal representa- of record claims or might subject those claims to a tion. The deficits include inadequate resources, ex- more exacting standard before the death-sentenced cessive attorney caseloads, inadequate briefing, and inmate can vindicate his rights. routine avoidance by appointed counsel of “optional In preparing this report, Texas Defender Service procedures” such as reply briefs and applications for (TDS) reviewed documents for each of the 84 death review by the U.S. Supreme Court. These deficien- penalty direct appeals decided by the Court of Crimi- cies reflect systemic problems with the state’s indi- nal Appeals between January 1, 2009 and December gent defense apparatus and not merely isolated fail- 31, 2015. In Spring 2014, TDS began examining the as- ures by a handful of attorneys. Administrative and signed counsel system’s statutory framework, county legislative reforms are necessary to ensure that the indigent defense plans, regional attorney qualifica- defense is adequately staffed with qualified counsel tion criteria, and attorney caseload data. We further and preserve the integrity of the Texas criminal jus- reviewed attorney bills (when available) and the ap- tice system. vi WWW.TEXASDEFENDER.ORG Systemic Weaknesses in the Provision analyzing, and briefing arguments for relief. Because of Direct Appeal Representation prosecutors respond to issues raised by the defense, in Death Penalty Cases they can limit their trial record review and research to discrete issues. The Resource Disparity between the Significantly, our survey found that two or more Prosecution and the Defense lawyers represented each of the three defendants whose death sentences were reversed on direct ap- our survey revealeD subsTanTial inequiTies peal and that a fourth defendant whose case was re- between the prosecution and the defense in access manded also had two appellate counsel. Yet, single to staffing and ancillary support on direct appeal. attorneys research, brief, and submit most direct ap- As attorneys for the government, prosecutors have peals in death penalty cases in Texas. Fully two-thirds substantial institutional resources at their disposal. (66.7%) of the cases within our sample were handled Fully 71% of the cases within our survey hail from by solo practitioners, who operate one-lawyer offices urban counties where local district attorneys have and, unlike larger counterparts, may lack ready ac- specialized appellate teams and can assign lawyers cess to direct supervision, consultation, or support to specific cases on an as-needed basis. District at- staff. To ensure the fairness of and restore balance to torneys also can leverage their budgets to hire exter- its adversarial process, the State of Texas should ap- nal counsel and can obtain assistance from the state point two appellate lawyers to each indigent defen- government. Private members of the bar assisted the dant who is directly appealing a death penalty case prosecution in at least four cases within our sample, and ensure that institutional resources, such as an and assistants from the Attorney General’s Office analog to the SPA, are available to the defense.