Sunday, September 25, 2006
Shoddy lawyering can prove fatal in death row appeals
With his client's life on the line, the lawyer appointed to file the
row inmate's final state appeal cobbled together arguments that were
incomplete, vague and, in at least one place, just plain wrong.
They perplexed the prosecutor and provoked a 606-page response from the
"Applicant totally misinterprets what actually occurred in this case,"
District Judge Noe Gonzalez of Edinburg wrote about one of the
Appalled by the lawyer's work, a committee of attorneys and citizens
formally complained to the agency that polices attorney misconduct, the
State Bar of Texas.
The attorney, Mark Alexander of McAllen, remains on the state's list of
lawyers who can be appointed to the cases that challenge convictions
help ensure no one unfairly convicted reaches the execution chamber.
The State Bar dismissed the grievance against Alexander. His former
Arturo Eleazar Diaz, remains on death row, arguing the courts never
reviewed his case because Alexander botched the appeal.
Confusing as they may have been, Alexander's arguments are the last
Texas courts are likely to hear about Diaz. They remain fixed in the
an example of a dilemma apparent to observers of all political stripes:
Texas tolerates and even finances questionable legal work in the
chapters of its death penalty cases — the court challenges known as
applications for writs of habeas corpus.
"It's a problem. It needs to be addressed," said Judge Cheryl Johnson,
Republican on the Texas Court of Criminal Appeals. "But I don't think
are any easy solutions to it."
Examples of troubling habeas cases abound, activists say. Just last
Texas executed Justin Fuller, whose appointed lawyer filed a habeas
challenge with rambling claims, glaring typos and incoherent
Another execution is scheduled in January for an inmate whose appointed
lawyer filed two pages — upward of 100 is more common — that raised
claim, and experts say it was fatally flawed.
Yet another habeas attorney failed to show the main witness against his
client had recanted. With help from other lawyers, that inmate, Anthony
Charles Graves, now is off death row and awaiting a retrial.
The habeas attorney's job is to catch misconduct and mistakes made by
defendant's trial lawyers, as well as the investigators, prosecutors,
and jurors who touched the case beforehand.
If the state habeas attorney misses a detail, the inmate may never get
another chance to raise it. An inmate can try filing in federal court,
except in rare extenuating circumstances, federal judges won't consider
anything that wasn't already raised in state court.
It's an area of law that goes largely unchecked by traditional
against shoddy legal work. For instance:
The State Bar disciplines lawyers who file nothing at all for their
but not necessarily attorneys who file worthless paperwork. It leaves
to malpractice lawsuits.
Lawyers who mishandle divorces, employment disputes or other civil
can be sued by their clients. But not in criminal cases. The law
forbids malpractice claims from convicts.
The Court of Criminal Appeals decides who's qualified to handle habeas
appointments, but has done little, if anything, to ensure lawyers
live up to their credentials.
Trial attorneys in death penalty cases must, by law, perform to certain
constitutional standards. When, for example, lawyers fail to adequately
investigate, their clients can get do-overs. Not in Texas' habeas
contrast, 14 of the nation's 37 states with the death penalty hold
attorneys to the same standards as trial lawyers.
"We don't have any watchdog organization that checks for quality
capital habeas cases, said Catharine G. Burnett, a South Texas College
Law professor and a member of the committee that complained about
A poor track record
Habeas corpus is the Latin term for the centuries-old legal tool that
double-checks the fairness of a conviction or punishment. In capital
it acts as the executioner's gatekeeper.
Unlike the direct appeals that automatically follow every death
examine what might have gone wrong at trial, applications for writs of
habeas corpus dig deeper.
Not confined to what occurred in the courtroom, habeas attorneys are
supposed to consider the whole picture, from what detectives did at the
crime scene to what jurors discussed in the deliberation room.
It's a daunting responsibility, and many qualified attorneys steer
it, partly because they say the amount the state will pay — up to
won't cover what's required for the sizable task. Comparable cases in
federal court normally pay up to $35,000 in legal fees alone, not
Texas started supplying habeas lawyers for death row inmates in 1995.
years later, a nonprofit monitor of capital cases, the Texas Defender
Service, looked at what the state was getting for its money.
Reading all but a dozen of the 263 habeas applications bankrolled by
the nonprofit found nearly 40 percent had fatal technical flaws and
"nothing for the courts to consider."
Since the study, "nothing has improved," said Andrea Keilen, director
Mark Alexander was preparing a habeas application around the time the
Defender Service completed its study. His client, Arturo Eleazar Diaz,
been convicted of stabbing his victim dozens of times during a 1999
Filed in 2002, Alexander's petition crammed 19 separate arguments into
pages. Its brevity came at the expense of clarity.
When Alexander complained the prosecutor had made inflammatory remarks
the jury, he never cited specifics. Judge Gonzalez responded with a
writing: "It is practically impossible to discern which particular
if any, he believes had been objectionable."
When Alexander criticized the trial attorneys for failing to discover
potentially significant evidence, specifically "the tape" and "all the
witnesses," he never identified the tape. Or the witnesses.
Two paragraphs long, his final assertion was that jurors hadn't been
how long parole laws would keep Diaz locked up if he received a life
sentence — crucial information for any jury weighing between prison
"Simply not true," the judge stated in his order rejecting all
claims. The record showed the jury had been given precisely that
What Alexander's petition failed to include was Diaz's contention that
trial lawyer spent only 15 minutes discussing the plea bargain offered
Had Diaz better understood the plea and the risks of trial, the inmate
he would have accepted a life sentence. When he tried raising this
federal court, the judge there said it was too late.
No way to grade quality
By chance, Diaz's case caught the attention of a State Bar group
about the quality of appointed counsel, the Committee on Legal Services
the Poor in Criminal Matters.
Alarmed by the Defender Service's study, committee members decided to
at random habeas petitions. Overall, they weren't impressed. One case
especially disturbed them.
The committee's minutes show the group voted 8-1 to file a grievance.
Committee members wouldn't name in interviews the subject of their
complaint, but court documents identified Alexander as the target and,
although he says it was unjustified, he acknowledged the grievance.
Three months ago, committee members learned the State Bar's
office had dismissed the complaint against Alexander without a hearing.
its standards, his work didn't violate the bar's rules.
"It was frustrating to us," said Michael K. Moore, a committee member
political science professor at the University of Texas at Arlington.
never saw the light of day."
Reached by phone, Alexander said the grievance, together with the heart
attack he survived about a year ago, have convinced him to steer clear
Alexander said his medical problems have blurred his memory so that he
longer remembers enough to explain every assertion in Diaz's case. But,
insisted he labored long and dutifully on the case.
The $13,040 bill he submitted to Hidalgo County listed 326 hours of
the equivalent of two months. Primarily, Alexander said, he knew the
represented Diaz's last chance to present new claims.
As a result, Alexander said he alleged things he couldn't prove simply
put them on the record. That way, if someone eventually found evidence
bolster them, the issues could be resurrected in federal court.
It wasn't a perfect legal brief, Alexander concedes, but in his defense
says it was only his second habeas case. "I was learning," he said.
"It wasn't like I just neglected it or whatever," he added. "I had
for what I did. I think my reasoning was sound."
Neglecting a case would violate ethical rules for attorneys. The State
regularly disciplines lawyers who collect fees and then file nothing or
abandon a case before it's over. But if attorneys file glaringly bad
the bar typically does nothing.
The bar's investigators find it difficult to prove that someone who
on a brief for more than 100 hours neglected the case, said Betty
chairwoman of the State Bar's Commission for Lawyer Discipline.
Grading the quality of legal briefs is another challenge.
"Are you going to discipline somebody for a C, D or F?" she said. "The
don't really address that."
Blackwell, like many others, believes the job of watchdog belongs to
Court of Criminal Appeals, the tribunal that reviews every habeas
application and vets the list of attorneys who can be appointed to
Members of the court, in turn, want the State Bar to take the lead.
Cheryl Johnson, one of two judges at the court who vet the list of
lawyers, said the nine judges there disagree about what to do with
who submit abysmal habeas petitions.
Some believe that only a formal reprimand from the State Bar would
yanking a lawyer's name from the roster. That was the issue with at
one attorney whose name, Johnson said, doesn't belong on the list.
"I've been trying to get him off since I reached the court in 1999,"
said, "and I cannot get any support for it because he has no
history with the bar."
A check on the system
As with anything involving the death penalty, personal biases cloud the
discussion of habeas cases.
Judges and lawyers comfortable with capital punishment won't
troubled by a habeas application that fails to make any reasonable
In their eyes, lousy arguments in a habeas case are likely the sign of
defense lawyer grasping at straws because the conviction was fair and
"I'm not aware of and I don't believe there are cases where there's
injustices based on ineffective assistance at the post-conviction writ
stage," said Williamson County District Attorney John Bradley, who once
worked at the Court of Criminal Appeals.
By contrast, opponents of the death penalty believe reasonable claims
found in most capital cases. To them, superficial habeas applications
a lack of effort or ability.
"In every case I know of ... where someone didn't do their duty as a
lawyer and someone else came along and did it, there were new claims
were found," said Jim Marcus, a lawyer with the University of Texas
Marcus can point to such a case in Bexar County. As much as any, it
demonstrates why the quality of habeas counsel matters.
Ricky Eugene Kerr was sentenced to death in 1995 for the murder of his
landlady and her 42-year-old son after they cut off his water and moved
His appointed habeas lawyer, Robert A. McGlohon Jr., had three years'
experience as a lawyer and, though he had been a staff attorney for the
Court of Criminal Appeals, he never had handled a death penalty case.
Suffering from a debilitating illness and a serious misunderstanding of
habeas law, McGlohon filed a single, generic claim critiquing habeas
Nowhere did his brief say anything about Kerr's trial.
The trial court, State District Judge Sharon MacRae, rejected the
So did the Court of Criminal Appeals.
A few months later, Marcus, then with the Defender Service, interceded.
took the case to federal court, where he showed how McGlohon had
Kerr's habeas application. The federal judge was appalled.
Concluding that Kerr never had a fair habeas petition, U.S. District
Orlando Garcia kicked the case back to the state courts. Confronted by
judge's ruling, the Court of Criminal Appeals relented and made an
exception. It allowed him to refile his habeas petition.
The second time around, Kerr was represented by Marcus and Kathryn
attorney with the Defender Service. They had plenty to say about Kerr's
They showed that Kerr's trial attorneys had never shown jurors a full
picture of the man on trial. The defense team had been so confident it
win, it only started preparing for the punishment phase after the
By then it was too late to complete the detailed research expected in
capital cases. Kerr's relatives testified, but the jury never heard
potentially mitigating details about the tattooed defendant with a
of domestic violence and petty crimes.
Kerr had endured an abusive childhood and had helped care for two
with mental retardation and an ailing grandmother. He had a history of
injuries, drug abuse and learning disabilities, possibly because of
At least one juror said the new information might have convinced her to
spare Kerr, and Judge MacRae revised her previous findings. Earlier
year MacRae sent her conclusions to the Court of Criminal Appeals,
they are under review.
This time, she urged the court throw out Kerr's death sentence.
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Staff Writer John Tedesco contributed to this report.