Naked City

No Appeal

The House Criminal Jurisprudence committee on March 18 considered HB 1734 by Rep. Pete Gallego, D-Alpine, which would strengthen competency requirements for attorneys appointed to state habeas appeals. In such proceedings, a defendant can raise new issues not based solely on trial proceedings, including claims of prosecutorial misconduct. The appeal is integral to securing an inmate's right to federal habeas review -- claims not raised at the state habeas level are generally forfeited. The essence of his bill, Gallego said, is to ensure that each inmate gets "one very well-represented habeas appeal." Among the proposed reforms are allowing the Texas Criminal Defense Lawyers Association to compile the list of qualified habeas attorneys, a measure Gallego called "peer review," and a provision that would require that two attorneys be appointed to handle each habeas case. The second provision appeared to get the nod of the committee chair, Rep. Terry Keel, R-Austin, who said he thought that would be a good way to continually generate new, qualified habeas counsel. However, the proposal that the TCDLA compile the list drew criticism from varying sources, among them the ever-present Harris Co. DA's office.

The way attorneys are appointed now, Gallego said, "is not very well suited" to the defense of death row inmates. The current list of habeas attorneys, kept on file with the Court of Criminal Appeals and appointed by local trial judges, has been a subject of ongoing controversy. Until recently, the list of just over 100 "qualified" lawyers contained the name of an attorney who has been dead since 1999. "This means that someone who had been dead for nearly two years was ruled competent by the Court of Criminal Appeals," Gallego said. CCA Presiding Judge Sharon Keller made a brief appearance before the committee as a reference witness and conceded that until recently the state's highest criminal appeal court had not reviewed the list to verify the eligibility of any of the lawyers.

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