If you are a reader of Texas Monthly, you may recall the advertisements for Texas Super Lawyers that have appeared in recent issues. What you won’t see is a similar advertising section entitled Texas Sleeper Lawyers, or Texas Slacker Lawyers. Who would want an attorney who falls asleep in court? Or fails to call helpful character witnesses to the stand? But many indigent defendants in Texas don’t have a choice—their court-appointed public defenders are not always the most experienced in criminal law practices.
The Texas Court of Criminal Appeals (CCA) exists to assuage just that problem. Throughout its 112-year history, the court has been known for its tendency to overturn the rulings of lower courts on technicalities, such as bad lawyering by the defense or the prosecution’s failure to present exculpatory evidence. Hundreds of inmates are on death row in Texas; in the rare instance that one’s conviction is overturned, it is often because the Court of Criminal Appeals has decided the defendant did not get a fair trial. In fact, the Court’s decision may have absolutely nothing to do with the innocence of the defendant.
Only two states have separate high courts of last resort. Texas is one; the other is Oklahoma. In Texas, the two state appellate courts are distinct in the type of appeals that come through their doors. The Supreme Court deals with civil appeals while the Court of Criminal Appeals exclusively debates criminal cases. This division was implemented to alleviate a heavy case load in the Supreme Court; according to the Handbook of Texas, Article V of the Texas Constitution of 1876 designates the authority to handle criminal cases to a three-judge panel originally called, simply, the Court of Appeals. Fifteen years later, Texans voted for an amendment to the state constitution to create the Court of Criminal Appeals. In September 1892, James Mann Hurt became its first presiding judge.
The current Court consists of a nine-judge panel, and it has drastically changed in recent years—while it was wholly Democratic in 1992, when the first Republican judge was elected, by 1999 the Court was completely Republican. The Court went through a decidedly conservative turn in the nineties, but during its most recent years, the CCA has tentatively retraced its steps and made more moderate decisions. The fact remains, however, that the CCA still focuses on technicalities in trial procedures, but it has overturned many fewer death row convictions than in its Democratic years, refusing stays of executions, sometimes regardless of seemingly exonerating evidence.
The state legislature attempted to fix the system in June 2001, when it passed the Texas Fair Defense Act. The law was a result of several years’ worth of lobbying efforts to create a more neutral and timely process of appointing indigent defendants with representation. New requirements included attorney qualifications, attorney fee schedules, compensation for experts, and a specific time frame for appointing defense attorneys. The lobbying effort was in response to the outcome of Calvin Burdine’s capital murder trial. He appealed his conviction after accusing his lawyer, Joe Cannon, of sleeping through parts of his trial. Burdine’s conviction was overturned in 2001, but he still sits in jail because he entered into a plea bargain agreement to avoid the death penalty instead of receiving a new trial.
While Burdine’s case helped publicize the principles behind the Fair Defense Act, the law still has critics who say it left the actual formation and structure of the new rules up to counties instead of implementing a state-wide system. A report released late last year, conducted by the Equal Justice Center and the Texas Defender Service, revealed that about two thirds of the counties in the study had not fully implemented the guidelines. And while the lawyers are being paid more—an incentive to stay awake in court—and must meet certain qualifications and standards, the system still isn’t perfect.