Naked City

Death penalty fast-tracking gets sidetracked

On May 3, the Senate Criminal Justice Committee took up an amended version of Rep. Terry Keel's HB 268, absent the language that would have made Texas the first state to "opt-in" to fast-tracked federal court review of the state's death penalty cases. Keel said that he and Sen. Juan "Chuy" Hinojosa, D-McAllen, worked together to craft the language changes necessary to make the bill palatable to the Senate. Although the bill was left pending last week, Keel said he anticipates it'll be smooth sailing for the measure, which he expects will soon become law: "This is the Real Keel Deal," he said.

Back in March, Keel was rather abrasive (to put it mildly) with witnesses testifying in opposition to his bill during its hearing in the House Criminal Jurisprudence Committee, which Keel chairs. The main complaint of those who spoke against the measure centered on a provision of the bill that would allow former prosecutors without any defense experience to be appointed to represent indigent defendants in death cases. (See "Terry's Tantrum," April 1.)

The more troubling provision, however, was one that would create a distinct set of qualifications for attorneys appointed to represent indigent death row clients on their post-conviction writs of habeas corpus. The codifying of specific requirements for such appellate appointments would likely trigger a currently dormant provision of the federal Antiterrorism and Effective Death Penalty Act of 1996 that, in essence, places death row defendants on the fast-track to execution by curtailing the review process in federal court. So far, no state has promulgated standards to trigger the so-called "opt-in" provision of the AEDPA, and death penalty foes argue that Texas, with its active death chamber and less-than-stellar reputation for handling indigent death cases, is the last state that should offer itself up for accelerated federal-court review.

According to Keel, however, HB 268's opponents can put their opt-in fears to rest. Keel said that he and Hinojosa, with the help of a writ attorney, crafted new language that would strengthen appointment standards while avoiding the AEDPA's opt-in provision. Instead of "mandatory standards" for appellate appointments, Keel said, the bill now refers to "discretionary qualifications promulgated by the Task Force on Indigent Defense," the 13-member body created in 2001 to oversee implementation of the Fair Defense Act. "We agreed to take the words, 'the task force shall,' and make them the 'task force may,'" Keel said, which should be enough tweaking to bypass the dreaded opt-in provision.

While the compromise may have legislators and defense attorneys singing Kumbaya, it might not please Court of Criminal Appeals Chief Justice Sharon Keller, who told the House committee in March that triggering the opt-in provision would be a good thing for Texas because there would be "more deference … to [our] state court decisions," meaning the decisions of the CCA would be even more difficult to challenge.

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death penaltyTexas Legislature, HB 268, Terry Keel, indigent defense, Juan Hinojosa, death penalty, Court of Criminal Appeals, Sharon Keller

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