During the last legislative session, Rep. Terry Keel, chairman of the House Criminal Jurisprudence Committee, pulled out an excellent impression of the infamous Joseph McCarthy during a committee hearing, grilling UT law professor Jordan Steiker about his opinions of the death penalty. Last month, Keel, R-Austin, proved he's also adept at mimicking a tantrum-throwing toddler during his committee's hearing of one of his legislative offerings, HB 268, by delivering a heaping of hysterics on witnesses who testified in opposition to his bill. HB 268, which ultimately made it out of committee and then off the House floor, would revise the current set of standards required of attorneys seeking appointment to represent indigent defendants facing the death penalty.
In 2001, lawmakers passed the Fair Defense Act, codifying the state's standards for handling the representation for all indigent defendants. As part of the law, legislators laid out qualifications required of attorneys who are appointed lead counsel on a capital case. Among them is a requirement that attorneys have at least five years of experience in criminal litigation and have tried "as lead defense counsel" a "significant" number of felony cases. According to Keel, HB 268 would strengthen those rules while simultaneously "widening" the pool of attorneys eligible to take on death cases primarily by axing the provisions requiring that attorneys have direct experience defending capital cases, and by adding to the eligible pool former prosecutors with no capital defense experience. The former prosecutors and others who likewise have no direct capital trial experience would have to have at least five years of trial or appellate litigation, not have been found to have rendered "ineffective assistance to counsel" in past cases, and to have participated in capital trial jury selection.
The changes last month earned opposition from several committee witnesses namely, Andrea Marsh of the ACLU, John Niland of the Texas Defender Service, and Bill Beardall of the Equal Justice Center. Each agreed with some of the provisions like disqualification for a finding of ineffective assistance but said they were troubled by allowing lawyers without direct experience to lead a capital defense. Currently, lawyers without that experience must first be appointed a second-chair defender in one capital trial before being eligible for a lead role. In other words, it wasn't the addition of other types of attorneys that is, appellate or prosecutors that bothered HB 268's opponents; it was the go-to-the-head-of-the-class pass that it offers comparatively underexperienced defenders. To hear Keel ranting, you might think that the witnesses just flat-out don't like prosecutors. Egregiously, Keel opined that their opposition was based on the idea that keeping attorney standards low benefits defenders claiming ineffective assistance on appeal a "well known tactic," he said, of death penalty abolitionists. "You are an abolitionist organization and [are] attempting to hang your hat on something because you don't want the standards raised," he yelled at Marsh.
Instead of listening, Keel went on the offensive, challenging credentials and deeming witnesses unqualified to comment. Keel said Marsh was unqualified because she'd never tried a capital case; that although Niland has tried 10 capital cases, he's never done any death penalty appellate work; and that Beardall only has civil rights litigation experience. "It's clear to me [that] you don't want other lawyers to be able to do this," Keel told Niland. "That's not true, sir," Niland managed to say before Keel bit back: "That's exactly true," he interrupted.
Keel has experience as both prosecutor and defender, and has worked capital cases, but Naked City still isn't sure how that makes him more expert than the stakeholders before him, each of whom have a long-standing commitment to improving indigent defense. Indeed, Beardall worked extensively with Sen. Rodney Ellis, D-Houston, to pass the Fair Defense Act in 2001; notably, Keel was not among the act's legislative champions.