October 6, 2004

Defense called lacking for death row indigents

Staff Writers of The Dallas Morning News

(Editor's Note: This story first appeared in The Dallas Morning News on
Sept. 10, 2000.)

Poor defendants facing the death penalty in Texas have been appointed
attorneys with temporary law licenses, substance abuse problems, conflicts
of interest or records of mishandling clients' cases.

Previously, in The News

In 2000, The Dallas Morning News examined 461 capital cases, finding
nearly one in four condemned inmates had been represented at trial or on
appeal by court-appointed attorneys who have been disciplined at some
point in their careers. Ernest Willis' case was a part of that research.

Defense called lacking for death row indigents

Judge says inmate wrongly convicted

Lawyer worked free for Texan who couldn't afford to lose
An examination of 461 capital cases by The Dallas Morning News found that
nearly one in four condemned inmates has been represented at trial or on
appeal by court-appointed attorneys who have been disciplined for
professional misconduct at some point in their careers. Others have been
represented by court-provided attorneys who dozed during trials, failed to
investigate their case or put in minimal preparation.

In addition, The News found that measures put in place in 1995 to ensure
that people facing the death penalty got at least an adequate defense
often carry little weight.

"When you think of a system, you think of some structure in place that is
orderly and consistent," said Elisabeth Semel, director of the American
Bar Association's Death Penalty Representation Project. "Texas is the
antithesis of that."

Defenders of the current system say that most appointed attorneys are
effective, although their pay is low and their ability to hire experts and
investigators is often limited. They point out that reversals of
convictions for ineffective assistance of counsel are rare.

Since 1963, the U.S. Supreme Court has required that defendants who cannot
afford an attorney be provided one. Over the years, several states have
set up public defender systems to meet this requirement. In Texas,
however, elected judges appoint private attorneys for trial and the first
stage of appeal, and the counties pay the bill. There are no statewide
standards or funding.

In recent months, Gov. George W. Bush's presidential candidacy has drawn
national attention to Texas' busy death chamber and its patchwork system
of appointing attorneys for poor defendants. The Republican governor, who
has signed death warrants for 144 prisoners during his five years in
office, has expressed confidence in the system.

"Texas is a leader in the United States in reference to making sure our
indigents are cared for. You can take numbers and skew them any way you
want to, but judges are conscientious, they're interested and they try
really hard," said Judge Olen Underwood, presiding judge of the Second
Administrative Judicial Region. The region includes Harris County, which
has sent more people to death row than many states. "The dilemma that we
have in Texas is we appoint lawyers, then the resources which we have to
support that lawyer are limited."

The News reviewed cases of the 461 inmates on death row as of May 1, using
public records, court documents and dozens of interviews with judges and
attorneys. Among the findings:

*About one in four has been defended by lawyers who have been reprimanded,
placed on probation, suspended or banned from practicing law by the State
Bar of Texas.

*In about half of those instances, the misconduct occurred before the
attorney was appointed to handle the capital case. The infractions that
triggered bar discipline - an extraordinary step reserved for severe
misbehavior - included failing to appear in court, falsifying documents,
failing to present key witnesses and allowing clients to lie.

*Even some attorneys with clean disciplinary records put forth only
minimal effort - rarely meeting with their clients, failing to
investigate, spending only a few hours preparing for the trial, missing
court deadlines and even dozing off during trials.

*Minimum qualifications for attorneys handling death penalty cases
instituted in 1995 are spotty at best. Locally developed lists of trial
attorneys the courts have declared qualified include more than two dozen
with prior disciplinary records. At the appellate level, the list includes
some young, inexperienced attorneys and a handful with disciplinary
records.

Judge Mike McCormick, the presiding judge of the Texas Court of Criminal
Appeals, said a disciplined lawyer is not necessarily a bad lawyer.

"There are many, many, very, very competent attorneys who have had
grievances and have had disciplinary sanctions that in no way impact or
reflect upon their ability to try a lawsuit," he said.

"You can say, well, this sure doesn't pass the smell test, but there's
nothing legally wrong with that person a disciplined attorney practicing
law. There are lots and lots of doctors who maybe have had some problems
that are practicing medicine.''

Judges around the state defend their handling of appointments, saying they
know better than anyone else who is best qualified to handle a complex
case. And supporters say Texas provides plenty of safeguards in the
appeals process.

Critics say the safeguards are meaningless and the definition of effective
representation is ridiculously low in Texas.

"What they want is something more than a warm body, but less than a good
attorney," said Jeff Pokorak, clinical professor of law at St. Mary's
University in San Antonio. He has represented about 100 death row inmates,
mostly on appeal.

The U.S. Supreme Court ruled in 1984 that criminal defendants are entitled
not just to have a lawyer, but an effective one.

In recent years, Texas courts have ruled that defendants received an
adequate defense even though their lawyers napped in court, had previously
prosecuted their client, had a personal relationship with a prosecution
witness or had been suspended or disbarred.

While recent national polls show most Americans continue to favor the
death penalty, the margin of support has slipped.

"Texans support the death penalty on the assumption it is administered
fairly. If they knew what a damn roll of the dice it was, they might not
be so sanguine," said Dallas criminal attorney Vince Perini, former chair
of the state bar Committee for Legal Representation for those on Death
Row.

Even some supporters of the death penalty have expressed reservations
about how it is applied and have concerns that some innocent people may
have been executed.

Critics say such concerns are well-founded.

"It is a mistake to assume that we are now seeing just several isolated
instances,'' said Nancy Gist, director of the Bureau of Justice Assistance
at the Department of Justice in Washington, which recently sponsored a
national conference on indigent defense. She pointed to findings in
Illinois that 13 death row inmates had been wrongfully convicted and a
recent Columbia University study that found widespread problems in the
application of the death penalty.

System changes

In 1995, the Texas Legislature tried to improve the system representation
by requiring the state's nine judicial districts to set minimum standards
for lawyers appointed to death penalty cases and to post a list of those
attorneys.

But the standards vary widely from county to county and the lists often
are not updated or monitored. Judges occasionally ignore the lists
completely. And in June, the Court of Criminal Appeals said that was OK,
ruling that a defendant had not been harmed even though his attorney was
not on the list.

A check of "capital qualified" lists around the state found that they
include more than two dozen attorneys with disciplinary problems.

Harris County is known for the most stringent qualifications, including
requiring a test to show competency. But the local judicial district's
list includes several disciplined attorneys.

Among them is one lawyer whose license to practice has been suspended
twice. The judge who ordered the most recent suspension, in 1995, delayed
its activation so the attorney could finish a capital murder case he had
been appointed to handle. He has since received other death penalty cases
- as well as another reprimand from the bar.

About 8 percent of the lawyers involved in the death row cases reviewed by
The News had been disciplined at some point in their careers. Overall
disciplinary rates for the state's 66,000 attorneys during the same period
of years were not available.

But over the last five years, the rate has been about 1 percent annually,
according to the state bar.

Although being disciplined does not necessarily mean that an attorney is
not qualified to handle a capital case, a record of serious misbehavior
should be a red flag to judges, said David Dow, a law professor at the
University of Houston who studies court appointments in death cases.

"It is unimaginable that trial judges would appoint lawyers who have been
suspended or reprimanded," he said.

But he added that it is not surprising that such lawyers get appointments,
because good attorneys often try to avoid them. The reason is simple: Done
correctly, a capital case can consume a practice for months or years,
requiring hundreds of hours of work that easily costs $50,000 or more.
Appointed attorneys are typically paid less than half that amount, and the
courts provide little or no money to hire investigators or expert
witnesses that they need to provide a full defense.

Even the dedicated lawyers who are committed to indigent defense cannot
afford to take more than a capital case every now and then.

As a result, Mr. Pokorak said, "The pool available to try capital cases is
generally under-experienced and certainly under-trained. ... You can't
kill people on the cheap. That's what Texas has always wanted to do, is
kill people on the cheap."

Appellate process

In 1995, Texas lawmakers also decided to make changes in the death penalty
appellate process.

Previously, death row inmates who wanted to seek a second level of state
appeal, called the writ of habeas corpus, had to hire their own attorneys
or find someone to take the case for free. The Legislature, in an effort
to shorten the time between sentencing and execution, decided to pay for
an attorney for the habeas appeal.

The state habeas process, which is routinely followed by a similar process
in federal court, allows defendants to re-examine the entire trial and
raise for the first time any issues related to fairness - including the
effectiveness of court-appointed attorneys. It is a complex area of law,
requiring not just a review of the trial record but a search for new
evidence

In theory, the new law sounded good. Many states do not provide attorneys
for this appeal.

As put into practice, however, the law has been a disaster, attorneys say.

"We went out of the frying pan into the fire," said Mr. Perini. "The Court
of Appeals just screwed it up."

Under the new system, the Court appointed the habeas attorneys from a list
of qualified lawyers it developed.

There was trouble from the beginning. Legislators provided $2 million per
year for the program - half the amount requested.

Then nearly 400 inmates asked for attorneys.

Faced with too many requests and too little money, the court capped the
amount an attorney could earn for the appeal at $7,500 - such a low figure
that many of the state's most respected appellate attorneys refused to
apply for the work.

"Nobody wanted these cases at that amount except either the lawyers who
had no clients or the baby lawyers who had no experience," said Judge
Charles Baird, a Democrat and a former member of the Court of Criminal
Appeals. Although he supports the death penalty, Judge Baird is co-founder
of the National Committee to Prevent Wrongful Executions and he has become
a leading critic of the Texas system.

Indeed, records from the Court show that some attorneys who had been
licensed less than two years received habeas appointments. The ABA
recommends at least three years experience for such work.

In an effort to attract better attorneys, the court removed the $7,500
cap, but it set no minimum qualifications. The result, according to Judge
Baird: "We appointed some absolutely terrible lawyers. I mean lawyers that
nobody should have, much less somebody on death row on his last appeal."

The results soon became evident. Several attorneys missed filing
deadlines, prompting the Court to reject the appeals - putting the inmates
one step closer to execution without review.

Those who did make deadline often filed only the most minimal of appeals:
One attorney filed only 51/2 pages. Most run many pages longer. He never
quoted the trial record and cited only three cases.

With the limit lifted, the court soon ran out of money. The governor's
office stepped in with another $600,000 - but set a new limit of $25,000
per attorney. While larger than the original cap, that's still not enough
for some complex cases, critics say.

But Judge McCormick said Texas is going beyond its constitutional duty in
providing attorneys for the appeal.

"What people need to understand is that ... The right to bring habeas
corpus is a grant of grace from our legislators," he said.

Judge McCormick said the system is a "model for the nation" and it has
been improved over the years. The Legislature returned the appointment
authority to trial judges, who must appoint from the high court's list of
qualified attorneys. In addition, lawmakers passed a provision that allows
a defendant to file again if his lawyer misses the deadline.

Abilene attorney Erika Copeland said that's not enough to persuade her to
take another state habeas appeal.

Ms. Copeland took one of the first habeas appeals under the 1995 changes
because she was one of the few people familiar with James Clayton's case.

On paper, she met the qualifications. But she was in over her head.

"I'm not an idiot," Ms. Copeland said. "I could do something if I knew
what the rules are. I just flat didn't know what I was doing.'' And the
state offered little assistance, she said.

Her client was executed in May. Ms. Copeland said she will not accept
another habeas case under the current system. "I feel like I was a tool,"
she said. "I feel like they used me in a process to execute my client."

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Source : The Dallas Morning News (Staff writers Allen Pusey and Lee
Hancock and researchers Julie Wilson and Michael Dean contributed to this
report. This story was reported by staff writers Diane Jennings, Dan
Malone, Steve McGonigle and Pete Slover and researched by Darlean
Spangenberger)

http://www.dallasnews.com/sharedcontent