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?
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IT WAS, BY ALL ACCOUNTS, the high court’s low point. A teenage girl named Deanna Ogg had been raped, bludgeoned, and stabbed to death on a late September afternoon in 1986 near the tiny town of New Caney, north of Houston. Roy Criner, a 21-year-old logger, was arrested after three friends said that, within hours of the time of Ogg’s death, Criner had bragged about picking up a hitchhiker, threatening her with a screwdriver, and forcing her to have sex. No other evidence tied him to the crime, but Criner was convicted and given 99 years for aggravated sexual assault. In 1997 newly available DNA tests showed that the sperm found in Ogg was not Criner’s. To be certain, the Montgomery County district attorney did a second test in the state’s lab and got the same results. Criner’s attorneys moved for a new trial, and in January 1998 the trial court agreed he deserved it.
Four months later, the Texas Court of Criminal Appeals, the highest criminal court in the state, went against law, science, and, it seemed, all common sense when it wrote, “The new evidence does not establish innocence,” and overruled the trial court. Sharon Keller, who had been on the CCA only a little more than three years but was rapidly becoming the court’s philosophical leader, cited the incriminating statements to the three friends as “overwhelming, direct evidence” of Criner’s guilt. New evidence ofinnocence, she argued, had to be so clear and convincing that no reasonable jury would have convicted Criner had it known about it. DNA, she said, was not enough. Keller noted that perhaps Criner had worn a condom or failed to ejaculate. There was also testimony, she wrote, that the victim had said that she “loved sex,” so perhaps she had had sex with someone and then met her demise at the hands of the logger. These theories had not been alleged at trial, nor was there evidence that Ogg had had sex with anyone else within 48 hours of her death, and court watchers wondered why an appellate judge was posing alternate theories that the prosecutor could have offered years before at trial. It seemed that Keller and the court really wanted to keep Criner in prison.
In 2000 the PBS show Frontline aired an episode called “The Case for Innocence,” featuring Criner’s story. Keller was interviewed, and she defended the CCA’s opinion and characterized the victim as “a promiscuous girl.” When asked about the possibility that Criner was innocent, Keller said, “I suppose that that is a possibility. But he certainly hasn’t established it.” When asked how a person could establish it, Keller replied, “I don’t know. I don’t know.” She appeared to be lost in her own circular reasoning. All Criner was asking for was a new trial, but that, said Keller, was out of the question. It was the last in-depth interview she would give to the media.
Later that year more DNA tests were done, this time on saliva from a cigarette butt found at the crime scene. The DNA matched that of the sperm, and a month later the DA and the county sheriff joined the trial judge in calling for a pardon for Criner. The state Board of Pardons and Paroles, which almost always denies such requests, voted 18–0 to grant one, and in August Governor George W. Bush, in the heat of a presidential campaign, relented. Roy Criner was freed.
It was a stunning rebuff to the CCA. One of Keller’s fellow judges, Tom Price, later said that the case (in which he had dissented) had made the court a “national laughingstock.” The Criner case was proof to some people that the court was ruled by a bunch of pro-prosecutor, right-wing ideologues with one goal in mind: keeping inmates behind bars, no matter what. The court, which handles thousands of petitions each year, mostly dealing with everyday criminals but also with death row inmates and their appeals, had been growing increasingly conservative since 1994. That year, on the heels of Bush’s successful run for governor, Republicans, including Keller, swept into statewide office. Six years later the national media, from the Chicago Tribune to Rolling Stone, were flocking to Bush’s home state to analyze Texas’s impressive death penalty machine. Most were trying to find evidence that the presidential nominee had executed an innocent man, and they inevitably wrote stories about a runaway criminal justice system and a gatekeeper high court that did nothing to control it. They ridiculed the court for Criner. The CCA, the national media reported, was a powerful group of nine conservative Republicans. Though they were public officials, elected in staggered six-year terms, theirs was a “stealth court,” shrouded in secrecy, whose sometimes outrageous decisions often came with no explanation. The court handled only criminal appeals (the Texas Supreme Court took care of civil matters), and the judges were mostly ex-prosecutors whose main goal seemed to be to satisfy the state’s appetite for execution; the court reversed only 3 percent of the death penalty convictions that came before it, less than any other state high court. It even had a group of staff lawyers called the Death Squad who worked on nothing but death penalty cases.
Since 2000, partly in response to the uproar over Criner, the CCA has moderated somewhat. But the past continues to haunt it. In the first half of this year, federal courts second-guessed a dozen Texas cases, ten of which had been acted on by the CCA after the 1994 election. The federal courts stayed two executions, set aside two death sentences, ordered three new trials, and mandated further hearings and other action in the rest. Criner, it was clear, had not been the only hard-luck Texan to run up against an inflexible court. Some, like Ernest Willis, had it even worse. Willis (whose story is told in detail in “Death Isn’t Fair” in the December 2002 Texas Monthly) had been convicted in 1987 for setting fire to a house in Iraan that killed two women. There was no physical evidence—no gasoline on his clothes, no witnesses, no fingerprints. Eight years later new attorneys found evidence of appalling misconduct, which they offered at hearings in 1996 and 1998: Willis had been drugged with powerful antipsychotic medicine for months before his trial, turning him into a drooling zombie, something the prosecutor made full use of in front of the jury. Moreover, the prosecution withheld a psychological report stating that Willis was not a future danger to society. His court-appointed lawyer did almost nothing for him, dooming him to death row. In 2000 the trial judge wrote a 33-page opinion recommending a new trial. The CCA, in 6 pages, denied it.
In October a federal judge ordered the state to either retry Willis or set him free. The attorney general of Texas declined to appeal, and the Pecos County DA dismissed the murder indictment, saying that the fire was an accident. Willis walked free from death row, the first inmate to do so since 1997. The state cheated, the defense gave up, and as a result, an innocent man was sentenced to die. Worst of all, the CCA knew all about it.
Why would a court keep an innocent man on death row? Why would a court look the other way in the face of DNA evidence? Antagonists—and there are many, most of them defense lawyers whose clients have lost before the CCA—say the court is full of heartless, result-oriented hacks. In fact, the CCA is full of hardworking, responsible, churchgoing men and women. But time and again over the past decade, whenever judges have had a choice between tolerating bad behavior by prosecutors and police or enforcing the due process rights of criminals, they have sided with the state. For some judges it has been a conscious choice, a turning away from the court’s previous technicality-based, defense-oriented decisions. For others it has been merely a reflection of their prosecutorial backgrounds. For all, it is politics: The judges on the CCA are elected politicians and are careful to paint themselves as tough on crime and criminals, whatever the cost. And so they have developed an overriding concern with preventing further hearings, appeals, and new trials. As Keller told the Frontline crew, attempting to explain the Criner judgment but also expressing an underlying rationale for the way the court does business: “Finality of judgments is important.” Of course it is; without finality, cases would drag on forever and the system would fall apart. But over and over before the CCA, finality has trumped everything else, especially fairness.
AN OLD FRIEND OF SHARON KELLER’S remembers hearing about Keller’s comments on Frontline and being dumbfounded: “I didn’t know where that absolute moral conviction came from. She didn’t question herself at all.” The friend reminisced about their youth in the early seventies and said, “She didn’t do anything wilder than anyone else. But I don’t know how she sleeps at night.”
To understand the CCA you have to understand Keller. Within the steps of her journey over the past decade, from assistant DA in Dallas to presiding judge, there is the story of a changing CCA as it went, under Keller’s leadership, from a fusty obscurity to an unwanted celebrity as the most notorious state high court in the country. “For ten years now,” says a veteran court watcher, “she has not wavered in her ambition to see the state win every case.” In the Texas Legislature she is known as Sharon Killer, while on her own court she is nicknamed Mother Superior. Part of this comes from her demeanor; she is quiet, studious, diligent, and closemouthed (she declined to be interviewed for this story). But as a conservative Catholic, she is also on a mission. “She believes she’s doing the work of God,” says one ex-staffer. Keller is one of the highest-ranking Republican elected officials in the state, yet she herself is a mystery. Many old friends and former staffers and judges as well as current colleagues were willing to talk about Keller, but few spoke on the record. One reason is obvious: She’s a powerful person. But friends and colleagues are also protective of her. They genuinely like her, even when they are genuinely horrified by who she has become and the decisions she has handed down. One old friend says it’s a Dr. Jekyll and Mr. Hyde thing. “When did this happen?” she asks. “How did this happen?”
Keller was born in Dallas on August 1, 1953. Her father, Jack Keller, started Keller’s Drive-In in 1950; there were eventually three restaurants, though one has since closed. Sharon had two brothers and an older sister and went to the exclusive private Greenhill School, graduating in 1970. She spent a year at the conservative Catholic college the University of Dallas, then, at her father’s suggestion, transferred to Rice University, where her sister was attending school. Sharon was reserved and withdrawn, though according to several friends of hers from the time, she was no straight arrow and availed herself of the freedoms of the counterculture.
In a 1998 interview, Keller said, “I don’t think people who knew me before I took the bench would perceive me as a leader-type person.” Not only that, friends don’t remember her even talking about big issues of the day, such as the death penalty, which was about to be outlawed, or the Vietnam War. “Most of our discussions were about where to go to have fun,” remembers one friend. “It would be a shock to most people that she would go to law school, much less become the most conservative Court of Criminal Appeals judge in the state’s history.”
Like many young people, Keller didn’t know what to do with her life. At first, she planned to study physics but later changed her major to philosophy. Her father suggested law, and after graduating from Rice, she enrolled at Southern Methodist University, earning her degree in 1978. She worked at a small firm for a few years, then married Hunt Batjer, a neurosurgeon. After their son, Temple, was born, she went to work for her father’s company as a senior executive. She and Batjer divorced soon afterward. In 1987 a parent of one of Temple’s Greenhill schoolmates told Keller about an opening at the Dallas County DA’s office; she applied and got it. As an assistant DA, she worked in the appellate division, and one of her jobs was arguing before the CCA. In 1993 Keller’s boss, DA John Vance, suggested that she run for a CCA seat that had come open at the last minute in the upcoming election. “It was a job I had not envisioned seeking,” Keller said later.
At the time, the court was all Democratic and all male. It also had a reputation for reversing convictions on technicalities, such as when a name was left off an indictment. In 1993 the court ordered a new trial in the horrific Tracy Gee carjacking murder case in Houston because the trial judge had called for a second shuffling of the jury cards. The public, enduring a high violent crime rate, was outraged, and newspapers editorialized against the court for being slaves to technicalities.
The furor changed the tenor of the CCA election, with candidates claiming to be pro-victim and anti-criminal. Keller campaigned as a tough-on-crime district attorney who would bring “the perspective of a prosecutor” to the court and not let criminals off on minor procedural violations. She outspent her general election foe by a three-to-one margin—Keller borrowed $213,000 from her family and raised another $25,000—and won easily, carried onto the court by the wave of anti-Clinton, pro-Bush sentiment, becoming the first woman elected to the court and a rising star in the party that had just taken over the state. The other new judge was Steve Mansfield, who was elected over moderate incumbent Charles Campbell even though it was revealed before the election that Mansfield had lied about being born a Texan (he was from Massachusetts) and about being a criminal defense lawyer (he was an insurance company attorney). It didn’t matter. During the campaign he had promised to have a “conservative, pro-victim orientation.” Tough talk and an “R” by your name were all you needed to get elected to the CCA, even if you were a double-talking Yankee.
Almost immediately, Keller and Mansfield made their presence known. In their first month they were the only two dissenters in a case granting a poor defendant the right to a court-appointed lawyer. They frequently joined with two other conservatives, presiding judge Mike McCormick and Bill White, to vote solidly pro-state. McCormick liked the hardworking Keller and put her on some of the court’s many committees, sharing with her some of his administrative and legislative responsibilities. She was a good student. Soon the CCA would vote to rehear three cases in which it had previously ruled for the defense; all were reversed. It wasn’t long before Keller was helping direct the court.
IN 1996 KELLER WROTE her first big decision, one that showed how hard the new court would be willing to steer in the state’s direction. Cesar Fierro had in 1980 confessed to murdering an El Paso cab driver; Fierro was convicted and given the death penalty. The problem, which was discovered fifteen years later, was that Fierro had confessed only after local police, in league with Mexican counterparts across the border in Juárez, told him that if he didn’t spill, the Mexican cops would torture Fierro’s mother and stepfather, whom they had just taken into custody. When the truth finally came out, both the prosecutor and the trial judge said that Fierro should get a new trial. Keller and the CCA saw it differently. “We conclude that applicant’s due process rights were violated,” she wrote in the court’s decision. “But, because we conclude that the error was harmless, we deny relief.” Fierro still sits on death row.
The Fierro decision demonstrated that not only would the court vote with the state, it would do so even when the police were a party to threats of torture—even when the state cheated. The phrase the court used in Fierro was “harmless error,” a concept developed nationally in the sixties as a reaction to otherwise sound cases getting thrown out of court on technicalities. Under the rule, if misconduct or a mistake by the police, prosecution, judge, or jury is minor—if it doesn’t affect the ultimate outcome of the case—the verdict is not touched. Unfortunately, as the court would show over the next eight years, the CCA considers almost any problem with the state’s case, however egregious, harmless.
Consider Delma Banks, whose name has plagued the Texas courts since 1980, when he was convicted of killing sixteen-year-old Richard Wayne Whitehead in a park near Texarkana. Banks, it seems from reading the trial record, is most likely guilty. Witnesses had seen him and Whitehead in Whitehead’s green Mustang the night before the murder, and other witnesses saw Banks driving a green Mustang around Dallas the next morning. A man Banks stayed with in Dallas produced the murder weapon for the police, a pistol he said Banks had left with him.
But even the guilty are due a fair trial, and in Banks’s case, the state deceived the jury to get a conviction and then lied to get the death penalty. A capital murder trial has two parts: the guilt phase and the punishment phase, at which it is crucial for the state, in order to win the death penalty, to show that the recently convicted is a future danger to society. Two of the state’s main witnesses in Banks, one used in each phase, cooperated with police out of fear of going to prison; one, it was revealed later, was heavily coached by prosecutors, and the other was a paid informant. While it’s legal for prosecutors and police to talk to witnesses before they testify and also to use paid informants, the state has an obligation to disclose these relationships to the defense as well as all other evidence in its possession. In Banks the prosecution denied both the coaching and the informing. Worse, at the punishment phase, the informant lied, saying that Banks, who had no criminal record, had told him that he was intent on launching an armed robbery spree and would use a pistol to “take care of” any trouble that came up. In other words, Banks was a future danger. Again, the prosecution, which knew this was untrue, said nothing, and Banks was sentenced to death.
In 2000, after the truth came out, a federal judge recommended a new sentencing hearing. The U.S. Court of Appeals for the Fifth Circuit reversed, and Banks was given a March 12, 2003, execution date. In the days leading up to the lethal injection, the Houston Chronicle, the Dallas Morning News, and the San Antonio Express-News all editorialized about the unfairness of the case. Banks’s last judicial hope in the state of Texas was the CCA, which had denied three previous writs of habeas corpus, the appeals phase at which a defendant brings up constitutional issues, in particular the failure to get a fair trial. On March 10, 2003, the court denied the petition again. (Banks had been denied a federal writ of habeas corpus as well.) In her opinion, Cathy Cochran, who had been appointed to the court by Governor Rick Perry in 2001, wrote, “In baseball, the batter is out after three strikes . . . applicant has had five strikes at habeas corpus relief. After 23 years . . . applicant has had his fair share of due process.”
Ten minutes before Banks was to be executed, however, the phone rang. The U.S. Supreme Court stayed his execution. The court took up the case in its next term, and at oral arguments an incredulous Justice Anthony Kennedy asked the assistant attorney general representing the state, “So the prosecutor can lie and conceal, and the defendant still has the burden to discover the evidence?” This past February, the Supreme Court, in a strongly worded 7–2 decision, left little doubt as to what it thought of Cochran’s theory, overturning the death penalty but keeping the verdict. The state, the court found, had withheld important evidence at trial and then lied to ensure Banks would get the death penalty. “As to the penalty phase,” wrote the court, “one can hardly be confident that Banks received a fair trial.”
The tortured 24-year-long Banks case reveals just how much the adversarial system is a dogfight. It’s no secret that police and prosecutors are under heavy pressure to win, especially after a brutal murder such as Whitehead’s. The cops are allowed to lie some—in interrogations, for example—and prosecutors are allowed to exaggerate. That’s part of their job. But they can’t cheat when it comes to evidence, and they can’t lie in front of a jury to encourage it to vote to execute someone. As the Supreme Court wrote about the role of the prosecutor 69 years ago: “While he may strike hard blows, he is not at liberty to strike foul ones.” Prosecutors must play fair, even if they’re dealing with someone who they believe shot a sixteen-year-old boy in the head.
“What this is all about,” says Amarillo defense attorney Warren Clark, who has argued before the CCA many times, “is following the rules. Everybody is bound by the system. In this case, the system broke down—in Banks it’s an obscenity. The CCA knew the prosecution lied and everybody just shrugged their shoulders.” In both Fierro and Banks it was clear that the prosecutors and the state felt that they had their man, so they went overboard to keep him—and then punish him. But, says University of Texas law professor and defense attorney Rob Owen, a longtime CCA antagonist who ran for a seat on the court in the last election: “If you indulge the state in cheating when guilt is clear, it tempts the state to cheat in cases when guilt is not clear.” Adds a federal judge, who spoke on condition of anonymity: “Most people think, ‘If a guy did it and didn’t get a fair trial and didn’t get a good lawyer, what are we arguing about?’ What people don’t get is that if the government is allowed to overreach and skew the system, it can do it to anyone.”
NOT LONG AFTER the Fierro decision, in 1996, three new Republicans were elected to the court. The next year Keller established herself as the CCA’s leader, writing 29 opinions, more than any other judge. Charlie Baird, a holdover liberal with whom Keller did not get along, either politically or personally, wrote the most dissents; he was often joined by fellow Democrat Morris Overstreet, the only African American to ever serve on the CCA. Baird says the court was changing in more ways than one. “It used to be,” he says now, “we would conference all day Monday and half the day Tuesday—all nine of us, fully discussing the cases. Toward the end of my tenure, in 1997, we’d talk about an hour a week. The other judges would not entertain anything Overstreet or I had to say. They were of one mind: ‘This is the result we want.’ We talked very little about Fierro.”
Too many new judges were getting elected too fast, says former judge Charles Campbell. “To maintain continuity,” he says, “an appellate court depends on institutional memory: a knowledge of how the system works, case law, the Legislature, how the law should change, what’s the right thing to do. It’s not simply a matter of following precedent but understanding what following precedent means.” And during the mid- to late nineties, the precedents fell. “The court had an agenda: reevaluating defense-oriented decisions,” says UT law professor and longtime court observer Robert Dawson. “They overturned a bunch of these cases. Some needed overturning, some did not.” Sometimes the court seemed to bend over backward for the state. In 1993 Jose Santellan Sr. killed his girlfriend in a parking lot, then drove away with the body. In order to get the death penalty, the prosecutor in the case had to show that the killing was committed in the course of another felony, such as kidnapping. However, since you can’t kidnap a dead body, the prosecutor called the crime attempted kidnapping—and got his death penalty. The CCA affirmed the capital conviction anyway, adding that there was a “reasonable inference” that the woman was “still alive” when Santellan put her in the car. A federal judge later overturned the death sentence, saying the CCA’s ruling was “wholly improper” and “lacked judicial integrity.” It was, he wrote, a “specious theory.”
Perhaps the best proof of the court’s new pro-state tendency was its habit of overturning mandates from trial judges for new trials. Between 1995 and 2002, it did so at least seven times. “If there’s one thing we didn’t do much that the Keller court has done,” says Campbell, “it’s overruling trial judges when they make recommendations for new trials. The trial judge has the people in front of him. He’s watching their body language. If the trial judge is willing to stick his neck out and recommend a new trial, for crying out loud, something bad must have happened.” Defense attorneys protested, but it did no good. Mike Charlton, one of Roy Criner’s appellate attorneys, remembers, “The court was run by a group of judges who were bound and determined to turn the state’s jurisprudence in a conservative direction. By 1998 the standard joke among appellate attorneys was that we were losing so often, our IQs had dropped fifty points between 1994 and 1998.”
During this time, Keller rarely faltered in her mission, refusing, for example (along with the rest of the court), to grant a stay of execution to Karla Faye Tucker, the notorious killer and born-again Christian. Her 1998 Criner decision, which came a few months later, reads in retrospect almost like a dare to defense attorneys everywhere: Go ahead. Bring your DNA evidence. The former free-spirited college student, who had been awash in the relativism of the seventies, had become a moral absolutist. She had no compunction about harsh punishment for people who’d made mistakes, even when, like Tucker, they’d sincerely repented, and no doubts about her mission, even when confronted with science. In many ways she resembled the man whose political lead she had followed in 1994, George W. Bush, who had gone through his own desultory times only to come out on the other side with a stubborn good-versus-evil view of the world.
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.
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.