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Old 12-08-2002, 08:54 AM
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Default Study criticizes Lawyers in Texas Death Row Cases

1. The New York Times. Yardley, Jim. "Texas Death Row Appeals
> Lawyers Criticized," December 3, 2002.
> 2. The Los Angeles Times. Weinstein, Henry. "Study Criticizes
> Lawyers in Texas Death Row Cases," December 3, 2002.
> 3. The Dallas Morning News. Jennings, Diane. "Death-row appeal
> process faulted: Presiding judge disputes report criticizing quality of
> attorneys," December 3, 2002.
> 4. The Houston Chronicle. Tolson, Mike and James Kimberly. "Habeas
> process flunks: Study calls many death appeals' token efforts',"
> December 3, 2002.
> 5. KXAN-TV. "Fault in Texas Death Penalty Appeals," December 3,
> 2002.
>
>
> The New York Times
> December 3, 2002
>
> Texas Death Row Appeals Lawyers Criticized
> By JIM YARDLEY
>
> HOUSTON, Dec. 2 - Death row inmates in Texas are often assigned
> incompetent or unqualified state appellate lawyers who do not raise
> legitimate constitutional arguments and who fail to unearth facts that
> could prove the innocence of their clients, according to a new study by
> an advocacy group for capital defendants.
>
> The group, Texas Defender Service, examined the state habeas appeals of
> nearly every death row inmate in Texas since 1995 and found that those
> inmates had a one in three chance of being executed without their cases
> being adequately investigated or argued by a competent state appeals
> lawyer. After conviction, a criminal faces a multilayered appeals
> process. The habeas appeal is intended for inmates to raise questions
> based on new evidence and not just the trial record. By comparison, the
> direct appeal is based on the record of the trial.
>
> The study, "Lethal Indifference," cited as an example the case of
> Leonard Rojas, who is scheduled to be executed on Wednesday night. Mr.
> Rojas was assigned his state habeas lawyer by the Texas Court of
> Criminal Appeals, which by law appoints such lawyers to death row
> defendants. The man chosen to represent Mr. Rojas had been disciplined
> three times by the state bar and also given two probated suspensions.
>
> "The overall message of the study is that our post-conviction system is
> broken in Texas," said Jim Marcus, executive director of Texas Defender
> Service and an author of the report. "Our system is so unreliable that
> innocent people or people with serious constitutional questions in their
> case are going to be executed without any real review."
>
> Texas Defender Service, which often represents death row inmates, has
> for years been highly critical of the capital punishment system in
> Texas, which has executed by far the most inmates of any state. In
> October 2000, the group issued a report that criticized the process by
> which judges appointed trial lawyers for indigent capital defendants.
> The following year, the State Legislature passed a law intended to
> improve trial representation for poor defendants in all criminal cases.
>
> Mr. Marcus said the new report is intended to expand beyond the adequacy
> of court-appointed trial lawyers and shed light on the problems with the
> state habeas appellate lawyers appointed by the Court of Criminal
> Appeals. He said claims made during habeas appeals are often critical in
> proving innocence or opening new constitutional avenues to overturn a
> conviction. He added that the state habeas process is also important
> because such new evidence can rarely be introduced in the federal habeas
> appellate process.
>
> The study was highly critical of the Texas Court of Criminal Appeals,
> the state's highest criminal court. It accused the court of often
> appointing unqualified and inexperienced lawyers to handle state habeas
> appeals, noting that one lawyer still listed by the court as approved is
> dead. The study also criticized the court as being indifferent when
> presented with persuasive evidence that an inmate was being poorly
> represented.
>
> Richard Wetzel, general counsel for the Court of Criminal Appeals, said
> he had only scanned the study and did not believe it would be
> appropriate to comment. "We've seen these criticisms before," he added.
> A spokeswoman for the Texas attorney general said no one in the office
> had yet read the report.
>
>
> Los Angeles Times
> December 3, 2002
>
> Study Criticizes Lawyers in Texas Death Row Cases
>
> Henry Weinstein, Times Staff Writer
>
>
> 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."
>
>
> The Dallas Morning News
> December 3, 2002
>
> Death-row appeal process faulted
> Presiding judge disputes report criticizing quality of attorneys
>
>
> By DIANE JENNINGS / The Dallas Morning News
>
> A report to be issued Tuesday by the Texas Defender Service, a nonprofit
> group that represents death-row inmates, charges the Texas Court of
> Criminal Appeals with "giving its blessing to bad lawyers" at one stage
> of the appellate process and warns that the state is at risk of
> executing the innocent.
>
> The report criticizes the appointment of attorneys at the state habeas
> level, a defendant's first opportunity to raise issues not brought out
> at trial, such as new evidence.
>
> Presiding Judge Sharon Keller said she hasn't read the report, but she
> thinks the process, in which the appeals court maintains a list of
> qualified attorneys for district judges to choose from when making
> habeas appointments, works well to safeguard those who are not guilty.
>
> Texas, which leads the nation in executions, began paying lawyers to
> represent death-row inmates at the state habeas level of the appeals
> process in 1995. The move was intended to ensure that the system would
> catch any person unjustly convicted or not deserving the ultimate
> punishment. Before 1995, the state paid for lawyers only at trial and on
> direct appeal. On direct appeal, only the trial record can be
> considered.
>
> "If they are going to provide the system, this stage of appeal, then
> they have to provide it in a manner that is consistent with due process,
> that is a fair process," said Greg Wiercioch, deputy director of the
> Defender Service.
>
> But according to the report, in more than a third of the cases studied
> since 1995, lawyers appointed under the oversight of the court did so
> little work that they "presented nothing in the habeas petition that the
> courts could review."
>
> Judge Keller said that, from what she could tell, "the report draws
> conclusions from bare numbers that are not justified.
>
> "Sometimes there's just nothing to raise," she said, "and lawyers
> shouldn't be criticized for not making something up."
>
> The report also says that many of the lawyers on the appointment list
> are unqualified. For instance, the list maintained by the court includes
> numerous lawyers who have been disciplined by the State Bar of Texas, as
> well as one dead lawyer, an inactive attorney, three prosecutors and a
> lawyer employed by the Texas Department of Criminal Justice, the report
> says.
>
> Judge Keller said the list may need to be cleaned up, but unless a judge
> chose to appoint an ineligible lawyer, the makeup of the list "wouldn't
> be a problem."
>
> Mr. Wiercioch cited the case of Leonard Rojas, who is scheduled for
> execution Wednesday, as an example of the system's problems. Mr. Rojas
> was convicted in the 1994 killing of his wife, Jo Ann Reed, and his
> brother, David Rojas, in Johnson County. Leonard Rojas confessed to
> police that he committed the crime after a night of drug use.
>
> After his conviction, the Court of Criminal Appeals appointed an
> attorney, David Chapman, who had received two probated suspensions from
> the state bar for neglecting previous clients. In an affidavit, Mr.
> Chapman, who had never represented a death-row inmate before, said that,
> during his appointment, he was also under treatment for the mental
> condition known as bipolar disorder.
>
> "I know that my mental condition affected my legal work to some degree,
> including my ability to represent Mr. Rojas in his state habeas
> proceedings," the affidavit states.
>
> Even if Mr. Rojas confessed to the crime, he is entitled to "a fair
> process - and that didn't happen," Mr. Wiercioch said.
>
> Mr. Wiercioch has filed a motion asking the Court of Criminal Appeals to
> stay the execution and appoint competent habeas counsel for Mr. Rojas.
>
> The state argued in response that Mr. Chapman was "deemed competent at
> his initial appointment ... due to his qualifications, experience and
> ability." His probated suspensions had no bearing on his competency, the
> state said, and his bipolar disorder did not render him incompetent.
>
> Judge Keller declined comment on the pending motion.
>
> The Houston Chronicle
> December 3, 2002
>
> Habeas process flunks
> Study calls many death appeals 'token efforts'
>
> By MIKE TOLSON and JAMES KIMBERLY
> 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.
>
> KXAN-TV
> Austin, TX
> December 3, 2002
>
> Fault in Texas Death Penalty Appeals
>
> Austin -- Texas is at risk of executing the innocent. That's the
> conclusion from a review of hundreds of death penalty post-conviction
> cases.
>
> The report by Texas Defender Service said it also found widespread
> incompetence.
>
> The Texas Defender Service specializes in representing capital
> defendants on appeal.
>
> The group examined hundreds of death penalty state habeas petitions
> filed since 1995.
>
> A 1995 law allows death row inmates to file habeas appeals.
>
> The law also created a roster of approved attorneys to handle the
> appeals and earmarked nearly $2 million to pay lawyers in the 1996-97
> budget.
>
> The reports said quote, a "high number of death row inmates are being
> propelled through the state habeas corpus proceedings ... with
> unqualified, irresponsible, or overburdened attorneys."
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Old 12-08-2002, 08:57 AM
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Default Texas Defender Service Press Release

Texas Defender Service
--------------------------------------------------------------------

510 S. CONGRESS, SUITE 307, AUSTIN, TEXAS 78704
VOICE: (512) 320-8300 | FAX: (512) 477-2153
http://www.texasdefender.org

--------------------------------------------------------------------



FOR IMMEDIATE RELEASE
December 3, 2002 Contact: Andrea Keilen
512-320-8300 (work)
512-289-3778 (cell)



New Study: Widespread Incompetence in Texas Death Penalty Appeals

Undermines Reliability of Capital Punishment System


State with Busiest Death Chamber at Risk of Executing the Innocent

Legislative Fix Required, says Study's Authors


Austin, TX - A comprehensive study on the Texas death penalty
post-conviction process reveals that state habeas cases were repeatedly
mishandled by court appointed attorneys. The new study, "Lethal
Indifference: The Fatal Combination of Incompetent Attorneys and
Unaccountable Courts in Texas Death Penalty Appeals," produced by the
Texas Defender Service, examines hundreds of death penalty state habeas
petitions filed since 1995. The report sheds light on the role of the
Texas Court of Criminal Appeals (CCA) in appointing inadequate attorneys,
including those with no previous experience in death penalty cases.


The report concludes that a high number of death row inmates are being
propelled through the state habeas corpus proceedings - a vital safety net
designed to prevent wrongful executions and the only stage in which new
claims of innocence, prosecutorial misconduct, or ineffective assistance
of trial counsel can be raised - with unqualified, irresponsible, or
overburdened attorneys. Incompetent state court lawyers who fail to raise
meritorious claims render federal review a meaningless formality because
federal courts are limited to reviewing only those claims that were first
presented in state court.


In 28 percent of the habeas applications filed since 1995 - when the Texas
Legislature created the current process of providing counsel to death row
inmates in habeas cases - the court appointed attorneys raised only claims
that cannot be addressed by the courts in habeas corpus proceedings. In 39
percent of the cases, appointed counsel presented no materials to support
the claims. Because state post-conviction proceedings are limited to
claims based on facts and evidence found outside the trial record, the
result of these inadequate applications is that in over one-third of the
cases, the appointed lawyer presented nothing in the habeas petition that
the courts could review.


Appointments in capital habeas cases must be made from a list of
CCA-approved lawyers. Included on the current list of lawyers authorized
by the CCA are three prosecutors, one employee of the Texas Department of
Criminal Justice, numerous lawyers who have been disciplined by the State
Bar and a lawyer who is dead.


"In many cases, the appointed lawyer filed an appeal that is the
functional equivalent of a blank piece of paper," says Jim Marcus,
Executive Director, Texas Defender Service. "The state habeas process is
where the innocent or those undeserving of the death penalty are
discovered, thus short-circuiting these proceedings with lawyers who fail
to do meaningful work for their clients undermines the integrity and
reliability of the system. Now, when Texas wrongly sentences a person to
death - which has happened in at least seven cases since 1973 - there is
little-to-no chance anyone will discover it before it is too late, if
ever."


Texas leads the nation in executions and is responsible for more
executions this year (31) than all other states combined. The next
scheduled execution in Texas, on December 4, 2002, is that of Leonard
Rojas, whose case exemplifies the systemic problem documented in report.
The CCA appointed a mentally-ill lawyer who had never before represented a
death row inmate in a habeas proceeding. At the time of his appointment,
the State Bar of Texas had placed the lawyer on two probated suspensions
from the practice of law in Texas. The State Bar imposed a third probated
suspension two weeks after the lawyer's appointment. His discipline
problems included neglecting a legal matter and having a mental health
condition that affected his ability to practice law. The lawyer failed to
properly investigate the case and filed claims that were non-reviewable in
a habeas petition.


After the claims were rejected by the CCA, the lawyer abandoned Rojas,
failed to seek appointment of federal counsel and thus, forfeited all
federal review of the case. Because of the lawyer's incompetence, Rojas
has been denied his one opportunity for full and fair review of his
claims.


"We must exercise all due diligence to provide adequate and experienced
counsel in capital cases to ensure accurate results and prevent the
ultimate nightmare: the execution of the innocent," says former Texas
Court of Criminal Appeals Judge, Morris Overstreet.


The study's authors urge the Texas Legislature to create a remedy for
inmates who received poor representation and to reform the appointment
process, allowing only qualified attorneys to take state capital habeas
cases in Texas.


# # #

To obtain a copy of the report, (embargoed for release until Tuesday
December 3, 2002) contact Andrea Keilen at the Texas Defender Service
512-320-8300. The report is available online at http://www.CJReform.org.
For more information, see also FACT SHEET: Case Studies.
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Old 12-08-2002, 12:49 PM
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thanx Joy! its about time Texas realize they have to stop the executions coz their system is not as great as they think it is!
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