The Austin Chronicle

http://www.austinchronicle.com/news/2013-09-20/convicted-killer-cites-inept-counsel/

Convicted Killer Cites Inept Counsel

By Jordan Smith, September 20, 2013, News

There is no question that on April 3, 1999, Arturo Diaz killed Michael Ryan Nichols during a botched robbery attempt in the living room of a two-bedroom apartment in McAllen, where Nichols lived when in the area doing business for his father's produce company. Nichols' roommate, John Shepard, saw Diaz standing over Nichols with a butcher knife – Nichols was ultimately stabbed 94 times – and Nichols pleaded with Shepard to just give Diaz money so that Diaz would go away; ultimately, Shepard was attacked too, stabbed in the face and neck, but he survived.

What is in question is whether Diaz's trial and state habeas attorneys were so ineffective as to call into question the legality of Diaz's guilty verdict and death sentence. Unless a federal appeals court or the U.S. Supreme Court – or even less likely, Gov. Rick Perry – steps in to say the case should again be reviewed, or that he should be granted relief, Diaz will be put to death on Sept. 26 – the second execution of Septem­ber, and one of five remaining executions scheduled through the end of the year.

At issue is whether Diaz's trial counsel erred in failing to explain how a plea deal for a life sentence offered by prosecutors could impact his case. (Diaz says the deal, which would've taken death off the table and left open the possibility of parole, was not at all explained to him.) Diaz also claims his trial attorneys were ineffective by failing to mount any coherent defense – they failed to call any witnesses on his behalf, to offer any substantial closing argument, or to put on any mitigating evidence that might have spared his life during the punishment phase of trial. None of these claims has ever been fully vetted, Diaz's current attorney James Terry argues, because Mark Alexander, the lawyer appointed to handle Diaz's state habeas appeal – where the claims should have been raised in detail – was also deficient. Accord­ing to Diaz's most recent appeal, filed in Aug­ust, Alexander made blanket claims without providing any supporting evidence; indeed, his deficient performance in Diaz's case was in 2006 the subject of a rare internal complaint filed against Alexander from within the State Bar. Ultimately, the complaint was dismissed after committee members reportedly concluded that Alexander's performance did not violate the state's code of conduct for attorneys. However, Terry argues, Diaz has twice been burned by deficient lawyering that has tainted his conviction and sentence.

The state disagrees, responding that a federal appeals court, in allowing Diaz the opportunity to appeal claims previously rejected by a federal district court, has in fact already vetted the merits of his ineffective assistance claims – and found them lacking. The claims failed, the state argues, in large part because they do not describe legal representation that falls "below an objective standard of reasonableness" that also prejudices the outcome of the trial – to "show prejudice, the [defendant] must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." In Diaz's case, they argue, there is no such probability. Unless the 5th Circuit disagrees and keeps Diaz's appeal alive (and/or the Supremes step in) Diaz will become the 13th inmate executed this year, the 505th since reinstatement of the death penalty, and, according to the Death Penalty Infor­ma­tion Center, the 1,260th inmate ever executed in Texas.

Also this week, at press time, the American Bar Association released an exhaustive overview of Texas' capital punishment system – part of a nearly decade-old ABA project dissecting state death penalty systems – concluding that although Texas has made headway to ensure a more justice capital system, serious and significant challenges still mar the state's practice of tinkering with death. Although reforms have been enacted to reduce the reliance on junk science, make more reliable eyewitness identifications, and to ensure defendants have access to police reports prior to trial, some reforms are still lacking (police are not required to adopt a model eyewitness ID policy, for example, and the state has yet to require the audio or video recording of suspect interrogations in serious felony investigations), making the system sloppy, spendthrift, and unfair, according to the report. Among the many detailed recommendations for reform is a call to revise appeal deadlines to allow for meaningful review of death cases; to reform the state's clemency system to ensure it has some actual meaning – including that the Board of Pardons and Paroles should be required to conduct public hearings; to reform capital sentencing procedures to excise any consideration of whether an inmate poses a future danger – a decision that often rests on shaky if not completely unreliable and nonscientific testimony; and to shore up the requirements for evidence preservation (for more on the state's deficits in this arena, see "Where's Your Evidence?" Feb. 15).

The report's measured, thorough, and thoughtful tone quickly earned approval from the national group Conservatives Concerned About the Death Penalty, which questions whether capital punishment is consistent with conservative principles. According to a press release from the group, the ABA's Texas report – conducted by a team of well-respected Texas stakeholders and chaired by Jennifer Laurin at UT's School of Law – makes it clear that the Texas system's flaws are fatal. "With this latest study there can no longer be any doubt that the death penalty system in Texas – as it is elsewhere – is not only costly and wasteful, but it's also unfair and inaccurate," said Marc Hyden, the group's national coordinator. "As conservatives, we cannot ignore the reality of the situation: This is another failed government program that should be scrapped."

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