Study Criticizes Lawyers in Texas Death Row Cases

Attorneys appointed to represent Texas death row inmates for the critical post-conviction review of their trials have frequently mishandled the cases to the detriment of their clients, a study to be released today has found.

The study focuses on the phase of a death penalty case known as habeas corpus, where an inmate is able to challenge the constitutionality of his conviction or sentence by raising claims not dealt with during a trial, such as a prosecutor withholding exonerating evidence.

In more than one-quarter of the cases studied between 1995 and 2000 (71 of 251), the appointed attorneys raised claims that could not even be considered because they did not go beyond the trial record, according to the report. It was prepared by the Texas Defender Service, a nonprofit organization that represents death row inmates and has staved off death sentences for several prisoners.

The study, titled “Lethal Indifference,” also found that in 97 of the 251 cases reviewed -- 39% -- the appointed lawyers presented no evidence to support the claims they raised.

All told, a third of the habeas corpus petitions were doomed to fail because of fundamental defects in how they were prepared, the study said.

“In many cases, the appointed lawyer filed an appeal that is the functional equivalent of a blank piece of paper,” said Jim Marcus, executive director of the defender service.

“Some of these lawyers are the equivalent of a potted plant because they fail to undertake the basic investigation that is required by the Texas statute” governing the appointment of lawyers in such cases, said Andrea Keilen, the principal author of the study. She said that the Texas Court of Criminal Appeals, which approves lawyers to handle such cases, has “turned a blind eye” to incompetent representation.

Richard Wetzel, general counsel for the Court of Criminal Appeals, defended Texas’ procedures and said the authors of the report “are not concerned with competent representation. They are concerned with abolishing the death penalty.”

Still, the study is likely to raise new questions about the way the death penalty is administered in Texas.

Texas has executed 287 people since the U.S. Supreme Court permitted states to reinstate capital punishment in 1976, the highest total by far. Texas has executed 31 inmates so far this year, more than any other state.

The report notes that since the death penalty was reinstated in Texas, seven individuals have been exonerated and freed from death row.

The Court of Criminal Appeals reverses a smaller percentage of death sentences than the highest-level court in any other state. Critics say the Texas court rubber-stamps the convictions, while supporters maintain that it shows that capital trials there are handled properly.

But even members of the Texas court have said they were troubled by the performance of some lawyers whom they had approved for habeas corpus appointments.

Judge Tom Price said, in a dissenting opinion earlier this year, that the Texas law requiring appointment of “competent counsel” for habeas corpus “ought to require more than a human being with a law license and a pulse.”

State habeas corpus is critical, legal experts emphasize, because if a claim is not raised at this stage, a federal court will not review it at the next phase.

The report presents several examples of individuals who could not get a federal court to review a claim because it had not been raised during the state process.

One case featured in the study is that of Leonard Rojas, who is scheduled to be executed Wednesday. The appeals court appointed an attorney to represent Rojas who had never represented an inmate in a habeas proceeding, and had been suspended twice by the State Bar of Texas at the time of his appointment, according to the study.

Rojas’ lawyer failed to properly investigate the case and filed claims that the court declined to review because they did not go beyond the trial record, according to the report.

The report also provides numerous examples of attorneys who filed bare-bones habeas petitions, which were rejected, yet who continued to be appointed to handle such cases.

Among others who received appointments were attorneys who had been reprimanded by the State Bar and three prosecutors. Keilen also said the current list includes a lawyer who has been dead for months.

The report also says the Texas court’s unwillingness to properly fund lawyers appointed to do these cases is “at the root of the abundance of incompetent, unqualified attorneys” on the list. Wetzel said he thought the Texas Defender Service was assessing the appointed lawyers by unrealistic “gold standards -- what a Wall Street law firm with unlimited funds would do to prevail in a particular case. That is not what these cases are.”

Moreover, Wetzel said, “most of these are open-and-shut cases. That is why [prosecutors] are going against these people for the death penalty.”