Texas' 'Lethal Indifference' Blasted in New Death-Row Report

A new Texas Defenders Service study charges the state Court of Criminal Appeals ignores death-row inmates' rights and its own legal mandate.

A new report from the Texas Defender Service charges that inmates on death row are faced with incompetent attorneys, and an impotent and indifferent appeals court. "The habeas process in Texas, intended as a vital safety net to catch mistakes, is instead a failed experiment," the report reads. Indeed, according to the report, Texas' death-row inmates have a one-in-three chance of being executed without their case passing through any competent review.

The TDS study, "Lethal Indifference," focuses on state habeas appeals, which are the second stage of a death-row inmate's appellate process. Unlike direct appeals -- which focus on procedural flaws in the original trial, like inaccurate jury instructions, rather than on the evidence itself -- habeas appeals allow inmates and their attorneys to raise issues not presented at the original trial. It's at the habeas phase where a capital convict can introduce new evidence of actual innocence (such as a post-conviction DNA review) or allegations of prosecutorial misconduct. Plus, in order for issues to be further raised in federal habeas review -- in which a case can go all the way to the U.S. Supreme Court -- they must first be introduced in state habeas review. So the appellate system examined, and found wanting, in the TDS report is critical to ensuring the justice of capital convictions.

In "Lethal Indifference," TDS reviews 251 state habeas petitions filed since 1995, when new legislation changed the way the state handles those appeals. The study found that in 39% of the cases, "the inmates' right to post-conviction review effectively ended when the petition was filed," the report reads. "In each, there was absolutely nothing for the courts to consider. These petitions were habeas applications in name only."

The report details the perfunctory attention many of the appellate attorneys -- selected by the Texas Court of Criminal Appeals -- appear to have given their clients, along with the indifferent attitude of the CCA itself, which is required by law to oversee a thorough and impartial review of capital convictions, not to ensure that people are executed as quickly and quietly as possible. According to the TDS, the CCA seems to misunderstand the 1995 legislation, authored by Rep. Pete Gallego, D-Alpine. As a result of that bill, the CCA is now required under the state Code of Criminal Procedure to, "under rules and standards adopted by the court, appoint competent counsel" who "shall investigate expeditiously ... the factual and legal grounds for the filing of an application for a writ of habeas corpus."

But TDS charges that this doesn't happen. The court has never made public the standards it uses to select habeas-qualified attorneys, and TDS says the CCA's list is riddled with attorneys who are not qualified to handle the strenuous appeals, attorneys who have faced numerous reprimands from the State Bar, and even one attorney who is dead. "The message [from the court] is that we don't want really good lawyers on this thing, because that hurts our heads," said Keith Hampton, the legislative chair for the Texas Criminal Defense Lawyers Association. "And it would slow down the bullet train of death we've got rolling here. Well, it isn't the defense lawyer's job to grease those tracks."

But the court has effectively avoided its responsibility for ensuring quality appointments, said TDS attorney Bryce Benjet, because while the CCA creates the list, it does not directly make the appointments from it. In 1999 the Legislature shifted that duty from the CCA to the district trial court, perhaps unwittingly providing the CCA with a bit of cover. "They are now apt to say, 'Well, we don't make the appointments,'" said Benjet. "But that is just a way for them to sidestep their responsibilities."

The reaction of CCA Presiding Judge Sharon Keller was predictable yet ghastly. In several press reports, Keller said that although she hadn't yet reviewed the report, it "draws conclusions from bare numbers that are not justified." The lawyers appointed to the list are "generally" well qualified, she said -- before telling the Austin American-Statesman that the court will purge the dead lawyer's name from the appointment list. Keller appears determined to uphold the view that the court is flawless: "What's happening is everyone is getting a chance at post-conviction relief, but clearly not everyone deserves it," she told the Associated Press.

Thankfully, not everyone agrees. Gallego is reportedly planning to introduce legislation this session to mandate specific standards the court will use to ensure competent representation.

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