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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The way to ensure that court-appointed lawyers will do good jobs is actually quite simple: Spend more money on them, like other states do. In California, for example, habeas attorneys make $125 an hour and can bill up to 570 hours investigating and preparing the petition, as well as another 569 hours if the court holds a hearing (that’s a total of $142,375); their investigation budgets alone are $25,000. “The money is the core problem,” says Dawson. “I don’t think we pay those lawyers enough money to expect them to do a good job. I’ve done a few writs. It takes an enormous amount of time.” Indeed, just about the only appellants who get relief are those represented by pro bono firms or attorneys with the resources to hire experts and do thorough investigations. Consider some of the men who got relief from the federal courts this year: Delma Banks, Joe Lee Guy (a death row inmate who was granted a life sentence in July by a federal judge after the trial judge and the DA in his case, as well as the Board of Pardons and Paroles, recommended a pardon), and Max Soffar (who in April was granted a new trial by the Fifth Circuit). Their attorneys have spent $860,000, $1.9 million, and $2 million in pro bono hours and expenses, respectively. Then there’s Robert Tennard, whose IQ of 67 was never considered as mitigating evidence in his 1986 death penalty sentencing, at least until the Supreme Court ordered the Fifth Circuit to reconsider the case in June. His case was handled for free by UT professor Rob Owen and six law students. Finally, there’s Ernest Willis, whose New York firm spent more than $5 million pro bono in the twelve years it worked for him.
When Willis walked free on October 6, it was worth every penny.
IN JUNE, at the last oral arguments of the 2003-2004 session, the judges of the CCA, led by Cochran and Keasler, dived into the fray, asking about rules of evidence, arguing and bantering with the attorneys and among themselves, discussing the Constitution (the Sixth Amendment versus the Fifth) and various mitigating character issues. Watching the judges, it was hard to square the court’s rhetoric with its reputation. Sometimes the judges were tough on the defense attorneys, sometimes they were tough on the state’s attorneys.
The reality is, the court today hardly resembles the court of the woolly end-of-the-century years. There are three judges on the far right (Keller, Keasler, and Barbara Hervey), three on the near left (Price, Meyers, and Johnson), and three in the middle (Cochran, Holcomb, and Paul Womack). The CCA began to slowly rein itself in after the Criner debacle and the 2000 elections as, in particular, Price, Sue Holland (elected in 1996), and Womack began to vote more with the defense. In 2001 the court stayed Napoleon Beazley’s execution as well as two others in a four-month period, which was not typical Keller court behavior. The next year, in Tuley, the court upheld a trial court’s granting of a new trial to a man who had pleaded guilty to sexually assaulting a girl, after she recanted. This April the court overturned two death sentences, including that of Willie Mack Modden, a man with an IQ of 64; it was the first time the court had spared a retarded man from the needle.
As the CCA has changed and Keller has found herself more and more on the losing side (she dissented in Beazley and Tuley), she’s also found herself on the wrong end of some off-the-court decisions. For several years the CCA had paid the Texas Criminal Defense Lawyers Association to train court-appointed trial lawyers, but in April and then August 2002, Keller unilaterally bestowed $225,000 on a different group. The rest of her colleagues reluctantly okayed the grant, but in 2003 they bucked her leadership and refused to renew it, leading the usually reticent Keller to tell Texas Lawyer that she was “pretty disappointed.” Later that month the judges fired longtime general counsel Rick Wetzel, who had been with the court since 1979 and had become a powerful behind-the-scenes figure and Keller ally. The vote was 7–2, with only Keller and Meyers wanting him to stay.
Keller—the nice Catholic girl who accidentally became a lawyer, then an assistant DA, then a top judge, and finally the top judge—has always been a quiet leader. At the June oral arguments she was in charge, but she also seemed fundamentally apart from her colleagues, at the center of them but separate. As they asked questions and argued, she remained calm and above it all. She leaned forward in her chair, sometimes taking notes, sometimes playing with a rubber band. Usually she stared straight ahead with the barest smile on her face, slightly nodding her head, like a schoolteacher lost in thought. The presiding judge speaks less than any of the others and usually only to call the next case or tell an attorney that his time is up.
These days it’s Cochran, the most junior member of the court, the author of both the Graves and Banks decisions, who seems to be directing things. Cochran, appointed to fill Holland’s seat in 2001 when she left the court for health reasons, is the most alert member and often the first questioner of an attorney. She is always polite and prepared, and unlike some of her fellow judges, she betrays no bias in her questioning. She is, says lawyer Brian Wice, “the intellectual heart and soul of the court.” And she has become a crucial swing vote. “In my opinion, we’re doing fairly well,” says Cochran, when asked to grade the court, noting “close to an even balance” and the diverse backgrounds of her colleagues. Indeed, though the court is, as it has always been, crowded with ex-prosecutors, both Cochran and Johnson have extensive experience as defense attorneys, and Cochran is a former law professor while Womack is a current one. Owen, who remains a critic, gives the court grudging praise. “There has been a genuine reform impulse from outside the court, in the media and society,” he says. “All that has made the court more self-conscious about doing things in the right way. To give [the judges] their due, which I don’t like to do, a lot of this is a genuine concern that innocent people might be wrongly convicted.”
Despite the apparent moderating trend, the court has shown it is still tied to its past, and the federal courts are not amused. Of course, there was Banks and Willis. Then there’s Saldano, in which the CCA, in 1999, sanctioned the use of race to determine a criminal’s future dangerousness; the resulting death penalty was thrown out by the Supreme Court—and then okayed again by the CCA in 2002. Last year a federal judge threw it out again, and this year the Fifth Circuit blocked an attempt (by the prosecuting attorney) to reinstate it. These federal cases are a reminder that there will always be periods when the court swings far and wide from the law and common sense. The fundamental problem is that the CCA judges—like all judges in Texas—are elected politicians in a state prone to hysteria over not looking tough enough on crime. No one is ever going to accuse these high-court judges of being soft on criminals or hard on victims, even today, when the violent crime rate is low. And so we’ll always have the occasional Fierro, Criner, Banks, and Willis.
One solution, brought up in the Legislature last session by senators Rodney Ellis, a Democrat from Houston, and Robert Duncan, a Republican from Lubbock, is an appointment-retention system, where all state judges would be appointed by the governor upon recommendations from a committee of civilians; then, after serving a term on the bench, the judges would be subject to a public vote on whether to keep them. Though many lawyers and judges—including Cochran, Meyers, and Holcomb—like the idea, there was little support in the Legislature. Another idea is to make elections nonpartisan; what, after all, does party affiliation have to do with being a judge? A third option: Just abolish the CCA, or combine it with the Texas Supreme Court, so the state’s high court will resemble every other state’s, except Oklahoma. Ellis and Representative Pete Gallego, a Democrat from Alpine, sponsored a bill to do this too. But all these ideas have failed to get much support. As long as the Republicans control the court and the Legislature (of the three CCA judges up for election this month, only Keasler has a Democratic opponent), reforms will go nowhere, just as they went nowhere when the Democrats controlled them. The unfortunate fact is, the CCA will not be changing anytime soon.
If you want to see what that really means, away from politics, rhetoric, and a bunch of lawyers, take a look at Ernest Willis, the man convicted of setting that fire that killed two women in Iraan eighteen years ago. In his last death row interview, on September 22, Willis talked about how the CCA could have denied his petition back in 2000. “I really don’t know how they could do that,” he said in his slow drawl, “especially on a death penalty case. That’s showing no respect for human life. If they know a person is innocent—and from reading all the evidence, I know those judges know I was innocent—it shows that they just didn’t care. All they wanted was to see me executed.”
Two weeks later Willis was given $100, a flannel shirt, a pair of oversized trousers, and some white running shoes, in which he walked out the front door of the Texas criminal justice system, straight into the arms of his wife, Verilyn, whom he hugged for a full minute. As the first man to walk away from death row in seven years spoke briefly with reporters, his voice cracked and he dabbed at his eyes, which were ringed with dark circles. Then he was off, one arm wrapped around his wife, the other pulling up his pants, which were drooping down around his hips.
Willis didn’t set the fire or kill those women. And he got a raw deal. A state district judge said so, a federal district judge said so, the attorney general of Texas said so, and the district attorney of Pecos County said so. His only crime was to be in the wrong place at the wrong time. First, it was a burning house in Iraan. Then it was in front of the Texas Court of Criminal Appeals.
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