Reasonable Doubt 
And Justice for Some
Over the past ten years, the Texas Court of Criminal Appeals has disregarded exculpatory DNA evidence, threats of torture, bad lawyering, and in some cases, all common sense to uphold convictions in keeping with its tough-on-crime philosophy. Why should toughness steamroll fairness?
eileen says: Hi Carl, If you register as a user on our site (it’s free! and easy!), you will get access to the archives. Please feel free to contact me, edsmith@texasmonthly.com. (March 11th, 2010 at 3:34pm)
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In 1998 Charlie Baird was beaten by former Dallas County prosecutor Michael Keasler and Morris Overstreet left to run for AG; his seat was taken by former defense attorney Cheryl Johnson. The revolution was complete: All nine judges were now Republicans. In 2000 Keller ran for presiding judge, a position she had been well prepared for by the retiring Mike McCormick. Tom Price challenged Keller for the post, pointing to the Criner decision. “The question is,” he told Texas Lawyer, “How far to the right is this court going to be? Even Republicans want there to be fair trials.” At the same time, though, Price catered to the tough-on-crime crowd, saying in his campaign literature, “I have no feelings for the criminal. All my feelings lie with the victim.” Keller beat Price for presiding judge in the primary election, but Price kept his seat on the CCA in the November general election. (Steve Mansfield, whose tenure involved a 1995 public reprimand from the State Bar for lying during the campaign and a 1998 arrest for scalping complimentary UT-A&M football tickets outside UT’s football stadium, decided not to seek reelection.)
It was the Keller court now in every sense. Most of the judges were former prosecutors or appellate judges accustomed to the appeals process, where the burden of proof is on the appellant to show he’s not guilty. Few had spent much time as defense attorneys and so had little experience with sympathetic defendants—those who were either innocent or death penalty candidates who had done the crime but had been so abused as children or were so crazy as adults that an appropriate final solution was mercy. In fact, few CCA judges had much sympathy for defendants at all.
A GOOD LAWYER can save a man’s life, or at least give him a fair shot. A bad lawyer, or just an inexperienced one—intimidated by the state’s staff of efficient assistant DAs, ignorant of the art of investigation or the fine points of evidence, overwhelmed by the paperwork and deadlines—can send a man to death row. And the CCA, which oversees the courts and maintains a list of qualified court-appointed appellate attorneys, has sanctioned some really awful lawyering. For a long time the court was ridiculed for its tolerance of careless trial attorneys, such as the infamous cases in which it upheld death sentences even though the attorneys were known to have fallen asleep during trial. Horror stories such as these led the Legislature in 2001 to pass the Fair Defense Act, setting standards for court-appointed trial lawyers and procedures for appointing them.
If only the CCA would do the same for the appellate lawyers it is responsible for. The court oversees the appointment of counsel for poor inmates for their writs of habeas corpus, the appeals that serve as the criminal justice system’s safety net. Habeas work is detective work: looking for overlooked witnesses and new evidence as well as signs that the trial counsel did such a bad job that the defendant didn’t get a fair trial. It was an appellate lawyer who spent three years pushing for newly available DNA tests for Roy Criner, and it was an appellate lawyer who pored over Ernest Willis’s county jail logs, looking for anything that would shed light on why his client’s demeanor at trial had been so bizarre. Habeas lawyers also have to be familiar with technical rules, especially those related to preserving claims; if certain issues aren’t raised at the state habeas phase, they can’t be raised later at the federal phase. They’re lost forever.
In 1995 the Legislature passed the Habeas Corpus Reform Act, a law guaranteeing Texas death row inmates “competent counsel” for their habeas appeals, though there was no mention of who could be appointed. The pay was initially set by the CCA at a paltry $7,500 per case, which was absurd given the work needed to do a good job (habeas attorneys spend an average of four hundred hours on a death penalty writ). Few volunteered, so the pay was raised to $25,000, though critics still complained that it wasn’t enough. In 1999 the Legislature passed a law giving trial courts the authority to pick lawyers from an “approved attorneys” list the CCA was to draw up. But there was no mention of standards or qualifications, and the court named some lawyers who by any definition did not belong. “My biggest concern with the court,” says federal district judge Orlando Garcia, “is how it goes about appointing lawyers. Who does that? Is there an application? Or does any judge just add any attorney he wants?”
Garcia has firsthand knowledge of the CCA’s troubled way with incompetent lawyers: the Kerr case. Ricky Kerr, convicted of killing his landlady and her son in 1995, was one of the first death row inmates to get a court-appointed habeas lawyer under the new habeas statute. His lawyer, who had begun practicing law only a year before and who was suffering from dangerously high blood pressure, filed a late six-page writ with one ill-considered claim: that the Habeas Corpus Reform Act was unconstitutional. Kerr had written the court, complaining that he had met with his attorney only once and that he was screwing up his only chance at relief. He even asked for a new lawyer, and the court denied him. The habeas trial court turned down relief, scheduled the execution, and the CCA affirmed. In 1997, though, Kerr got new attorneys who wrote a new petition, asking for a stay of execution. Two days before the date, the CCA turned him down. Judge Garcia granted the stay, calling the CCA’s appointment of the lawyer “a cynical and reprehensible attempt to expedite petitioner’s execution at the expense of all semblance of fairness and integrity.” In 2002, after considerable bad publicity over the case, the CCA changed its mind about Kerr, saying he should get another shot since that six-page application was not a “true writ.” Keller dissented.
That same day, in Graves, the court released its most controversial decision of the past few years when it finally defined what was meant by “competent counsel.” A man named Robert Carter had been arrested for killing an entire family in Burleson County in 1992; he accused his wife’s cousin, Anthony Graves, of being an accomplice, though he later recanted in front of a grand jury and later still in a deposition. Both men were convicted and sentenced to death. Graves’s court-appointed habeas attorney, who had been out of law school less than three years, failed to subpoena Carter for a 1998 hearing, forcing the judge to refuse to allow the recantation. Subsequent habeas attorneys filed a claim that this was ineffective assistance of counsel. The CCA, in an opinion written by Cathy Cochran, disagreed. The court said that “competent counsel concerns habeas counsel’s qualifications, experience, and abilities at the time of his appointment”—not anything stupid or irresponsible he might do later. Tom Price dissented, saying that the attorney was way out of his depth and adding, “‘Competent counsel’ ought to require more than a human being with a law license and a pulse.”
Price has not been alone in dissenting on cases of bad lawyering; the issue has led to some of the more divisive disagreements on the court, with Larry Meyers (who has been on the court longer than any other judge), Cheryl Johnson, and Charles Holcomb (who was elected in 2000) often joining in. But even with all the controversy, the court has yet to set standards for appointed habeas lawyers, which infuriates its critics. Attorney and former state judge Jay Burnett says, “My biggest bone of contention with the CCA is, they select these people, they are the ones who put these lawyers there, and they are the ones who say it’s all right. Why do they keep a list with no standards or guidelines?” At a minimum, he says, there should be an intensive course on habeas lawyering, then an exam, and then some kind of on-the-job training, maybe working with a more experienced habeas lawyer. Keller has said that the court is discussing such matters, though it has yet to act. The court has never removed anyone from the roster for disciplinary or competency reasons, but in June Cochran and Johnson sent letters to listed lawyers, asking if they still wanted to receive appointments. Some, like former judge Mansfield, didn’t know they were even “approved attorneys.” Others, who had gone to work for the state, were ineligible. At least none were dead. William Loveless, who died in 1999, had been on the list until 2002.
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