David
12-03-2002, 11:59 AM
Dec. 3, 2002, 6:29AM
Habeas process flunks
Study calls many death appeals 'token efforts'
By MIKE TOLSON and JAMES KIMBERLY
Copyright 2002 Houston Chronicle
Inspired by horror stories of inmates facing execution without anyone
having taken up their appeals, the Texas Legislature passed a law in
1995 requiring that every person given a death sentence be appointed a
competent post-conviction lawyer.
What has evolved over the past seven years, however, is a patchwork
system of appointments that guarantees little other than a name on a
piece of paper -- or so contend the authors of a new study on the
quality of representation in the Texas habeas corpus appeals process.
The study released today by the Texas Defender Service claims that more
than a third of the state habeas appeals filed since 1995 have been
token efforts, containing none of the investigative work that is
customarily expected in such an appeal.
The authors reviewed 251 state habeas applications filed since 1995. In
97 of them, the report said, the attorney did not offer any material
other than that found in the court record, even though the sole purpose
of the habeas process is to develop claims based on facts and evidence
outside the record.
"That's four out of 10 you can write off," said Jim Marcus, executive
director of Texas Defender Service, a non-profit firm that handles
capital cases. "There is a staggering rate of under-performance in the
state system, and it's also undercutting meaningful federal review."
Thirty percent of the habeas applications were 30 pages or fewer, with 9
percent under 10 pages. Typically, briefs run 100 pages or more.
Calling the Texas system "a failed experiment with unreliable results,"
the study concludes there is no one responsible for overseeing the
quality of lawyers appointed to handle these cases. Anyone on the list
compiled by the Texas Court of Criminal Appeals is eligible.
The predictable result is mixed: Defendants fortunate enough to get an
experienced, conscientious lawyer will get a thorough review, while the
unlucky will get lawyers barely out of law school or unfamiliar with
criminal appeals or, in 13 cases, with a State Bar disciplinary history.
"If the goal is to move people along in assembly-line fashion with some
appearance of justice, you couldn't do much better than Texas," said
Stephen Bright, a nationally known death penalty lawyer in Atlanta. "If
the goal is real justice with meaningful review in these cases, you
couldn't do worse."
Court of Criminal Appeals Presiding Judge Sharon Keller said she does
not agree with the Defender Service that a skimpy habeas appeal means
the attorney did not do his job because sometimes there are no issues to
raise on appeal.
"What's happening is everyone is getting a chance at post-conviction
relief," Keller said, "but clearly not everyone is entitled to it. The
fact that not everyone is getting (relief) is not an indication that
there is anything wrong with the system.
"Relief on habeas is supposed to be limited to certain kinds of claims.
People shouldn't expect lots of applicants to get relief," she said.
Marcus and Bright said relief is less the issue than the effort expended
to get it. Both lawyers said there never is an excuse for filing a
10-page habeas brief.
"That's just unbelievable," Bright said.
The study is littered with scenarios in which inmates' appeals
apparently were hurt because claims were not made in the state habeas
process. Generally speaking, failure to present an issue in the state
habeas petition will prevent its consideration in the federal appeals to
follow.
In the case of Paul Colella, his habeas attorney filed a nine-page
appeal on his behalf, but the Court of Criminal Appeals refused to
consider the few issues raised because the appeal was filed late.
Colella's attorneys in federal court said they discovered a raft of
issues that should have been raised at the state level, including the
fact that Colella's trial attorney had been sanctioned for an
incompetent performance in another criminal case.
Colella, 34, of South Padre Island, was convicted of shooting two men to
death in 1991.
"The heart of habeas corpus is going out and investigating the case and
raising the claims that aren't in the record," said Greg Wiercioch, one
of the study's authors. "You're not going to read in the record that the
prosecution suppressed favorable evidence. You're not going to read in
the record that the lawyer slept during the trial. You're not going to
read in the record that the jurors flipped a coin to decide."
Keller is responsible for deciding which lawyers will be approved by the
high court to handle habeas appeals. There are no written criteria to
decide which attorneys make the list.
Keller said she follows her own guidelines, which take into account an
attorney's qualifications, background and experience.
Keller said there aren't many lawyers asking to be placed on the list of
approved attorneys. In the last year, she received just one or two
applications, she said.
The reason for that, Marcus said, is that the court pays only $25,000
for all fees and expenses connected with an appeal. A lawyer doing a
thorough job is bound to lose money on the appointment, he said.
The solution offered by the study is to create a statewide public
defender's office for capital appeals.
Habeas process flunks
Study calls many death appeals 'token efforts'
By MIKE TOLSON and JAMES KIMBERLY
Copyright 2002 Houston Chronicle
Inspired by horror stories of inmates facing execution without anyone
having taken up their appeals, the Texas Legislature passed a law in
1995 requiring that every person given a death sentence be appointed a
competent post-conviction lawyer.
What has evolved over the past seven years, however, is a patchwork
system of appointments that guarantees little other than a name on a
piece of paper -- or so contend the authors of a new study on the
quality of representation in the Texas habeas corpus appeals process.
The study released today by the Texas Defender Service claims that more
than a third of the state habeas appeals filed since 1995 have been
token efforts, containing none of the investigative work that is
customarily expected in such an appeal.
The authors reviewed 251 state habeas applications filed since 1995. In
97 of them, the report said, the attorney did not offer any material
other than that found in the court record, even though the sole purpose
of the habeas process is to develop claims based on facts and evidence
outside the record.
"That's four out of 10 you can write off," said Jim Marcus, executive
director of Texas Defender Service, a non-profit firm that handles
capital cases. "There is a staggering rate of under-performance in the
state system, and it's also undercutting meaningful federal review."
Thirty percent of the habeas applications were 30 pages or fewer, with 9
percent under 10 pages. Typically, briefs run 100 pages or more.
Calling the Texas system "a failed experiment with unreliable results,"
the study concludes there is no one responsible for overseeing the
quality of lawyers appointed to handle these cases. Anyone on the list
compiled by the Texas Court of Criminal Appeals is eligible.
The predictable result is mixed: Defendants fortunate enough to get an
experienced, conscientious lawyer will get a thorough review, while the
unlucky will get lawyers barely out of law school or unfamiliar with
criminal appeals or, in 13 cases, with a State Bar disciplinary history.
"If the goal is to move people along in assembly-line fashion with some
appearance of justice, you couldn't do much better than Texas," said
Stephen Bright, a nationally known death penalty lawyer in Atlanta. "If
the goal is real justice with meaningful review in these cases, you
couldn't do worse."
Court of Criminal Appeals Presiding Judge Sharon Keller said she does
not agree with the Defender Service that a skimpy habeas appeal means
the attorney did not do his job because sometimes there are no issues to
raise on appeal.
"What's happening is everyone is getting a chance at post-conviction
relief," Keller said, "but clearly not everyone is entitled to it. The
fact that not everyone is getting (relief) is not an indication that
there is anything wrong with the system.
"Relief on habeas is supposed to be limited to certain kinds of claims.
People shouldn't expect lots of applicants to get relief," she said.
Marcus and Bright said relief is less the issue than the effort expended
to get it. Both lawyers said there never is an excuse for filing a
10-page habeas brief.
"That's just unbelievable," Bright said.
The study is littered with scenarios in which inmates' appeals
apparently were hurt because claims were not made in the state habeas
process. Generally speaking, failure to present an issue in the state
habeas petition will prevent its consideration in the federal appeals to
follow.
In the case of Paul Colella, his habeas attorney filed a nine-page
appeal on his behalf, but the Court of Criminal Appeals refused to
consider the few issues raised because the appeal was filed late.
Colella's attorneys in federal court said they discovered a raft of
issues that should have been raised at the state level, including the
fact that Colella's trial attorney had been sanctioned for an
incompetent performance in another criminal case.
Colella, 34, of South Padre Island, was convicted of shooting two men to
death in 1991.
"The heart of habeas corpus is going out and investigating the case and
raising the claims that aren't in the record," said Greg Wiercioch, one
of the study's authors. "You're not going to read in the record that the
prosecution suppressed favorable evidence. You're not going to read in
the record that the lawyer slept during the trial. You're not going to
read in the record that the jurors flipped a coin to decide."
Keller is responsible for deciding which lawyers will be approved by the
high court to handle habeas appeals. There are no written criteria to
decide which attorneys make the list.
Keller said she follows her own guidelines, which take into account an
attorney's qualifications, background and experience.
Keller said there aren't many lawyers asking to be placed on the list of
approved attorneys. In the last year, she received just one or two
applications, she said.
The reason for that, Marcus said, is that the court pays only $25,000
for all fees and expenses connected with an appeal. A lawyer doing a
thorough job is bound to lose money on the appointment, he said.
The solution offered by the study is to create a statewide public
defender's office for capital appeals.