Express-News Analysis of Texas Habeas Corpus provisions

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Sunday, September 25, 2006

Shoddy lawyering can prove fatal in death row appeals

Maro Robbins
Express-News Staff

With his client's life on the line, the lawyer appointed to file the
death
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
judge.

"Applicant totally misinterprets what actually occurred in this case,"
State
District Judge Noe Gonzalez of Edinburg wrote about one of the
attorney's
claims.

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 result?

The attorney, Mark Alexander of McAllen, remains on the state's list of
136
lawyers who can be appointed to the cases that challenge convictions
and
help ensure no one unfairly convicted reaches the execution chamber.

The State Bar dismissed the grievance against Alexander. His former
client,
Arturo Eleazar Diaz, remains on death row, arguing the courts never
really
reviewed his case because Alexander botched the appeal.

Confusing as they may have been, Alexander's arguments are the last
words
Texas courts are likely to hear about Diaz. They remain fixed in the
record,
an example of a dilemma apparent to observers of all political stripes:

Texas tolerates and even finances questionable legal work in the
closing
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,
a
Republican on the Texas Court of Criminal Appeals. "But I don't think
there
are any easy solutions to it."

Examples of troubling habeas cases abound, activists say. Just last
month,
Texas executed Justin Fuller, whose appointed lawyer filed a habeas
challenge with rambling claims, glaring typos and incoherent
repetitions.

Another execution is scheduled in January for an inmate whose appointed
lawyer filed two pages — upward of 100 is more common — that raised
only one
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
the
defendant's trial lawyers, as well as the investigators, prosecutors,
judges
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,
but,
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
safeguards
against shoddy legal work. For instance:

The State Bar disciplines lawyers who file nothing at all for their
clients,
but not necessarily attorneys who file worthless paperwork. It leaves
those
to malpractice lawsuits.

Lawyers who mishandle divorces, employment disputes or other civil
matters
can be sued by their clients. But not in criminal cases. The law
essentially
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
actually
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
cases. By
contrast, 14 of the nation's 37 states with the death penalty hold
habeas
attorneys to the same standards as trial lawyers.

"We don't have any watchdog organization that checks for quality
control" in
capital habeas cases, said Catharine G. Burnett, a South Texas College
of
Law professor and a member of the committee that complained about
Alexander.

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
cases,
it acts as the executioner's gatekeeper.

Unlike the direct appeals that automatically follow every death
sentence and
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
clear of
it, partly because they say the amount the state will pay — up to
$25,000 —
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
including
investigative expenses.

Texas started supplying habeas lawyers for death row inmates in 1995.
Seven
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
Texas,
the nonprofit found nearly 40 percent had fatal technical flaws and
provided
"nothing for the courts to consider."

Since the study, "nothing has improved," said Andrea Keilen, director
of the
Defender Service.

Mark Alexander was preparing a habeas application around the time the
Defender Service completed its study. His client, Arturo Eleazar Diaz,
had
been convicted of stabbing his victim dozens of times during a 1999
robbery
in McAllen.

Filed in 2002, Alexander's petition crammed 19 separate arguments into
35
pages. Its brevity came at the expense of clarity.

When Alexander complained the prosecutor had made inflammatory remarks
to
the jury, he never cited specifics. Judge Gonzalez responded with a
shrug,
writing: "It is practically impossible to discern which particular
comment,
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
told
how long parole laws would keep Diaz locked up if he received a life
sentence — crucial information for any jury weighing between prison
time and
lethal injection.

"Simply not true," the judge stated in his order rejecting all
Alexander's
claims. The record showed the jury had been given precisely that
information.

What Alexander's petition failed to include was Diaz's contention that
his
trial lawyer spent only 15 minutes discussing the plea bargain offered
by
prosecutors.

Had Diaz better understood the plea and the risks of trial, the inmate
says,
he would have accepted a life sentence. When he tried raising this
issue in
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
concerned
about the quality of appointed counsel, the Committee on Legal Services
to
the Poor in Criminal Matters.

Alarmed by the Defender Service's study, committee members decided to
look
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
disciplinary
office had dismissed the complaint against Alexander without a hearing.
By
its standards, his work didn't violate the bar's rules.

"It was frustrating to us," said Michael K. Moore, a committee member
and
political science professor at the University of Texas at Arlington.
"It
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
of
capital cases.

Alexander said his medical problems have blurred his memory so that he
no
longer remembers enough to explain every assertion in Diaz's case. But,
he
insisted he labored long and dutifully on the case.

The $13,040 bill he submitted to Hidalgo County listed 326 hours of
work,
the equivalent of two months. Primarily, Alexander said, he knew the
habeas
represented Diaz's last chance to present new claims.

As a result, Alexander said he alleged things he couldn't prove simply
to
put them on the record. That way, if someone eventually found evidence
to
bolster them, the issues could be resurrected in federal court.

It wasn't a perfect legal brief, Alexander concedes, but in his defense
he
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
reasons
for what I did. I think my reasoning was sound."

Neglecting a case would violate ethical rules for attorneys. The State
Bar
regularly disciplines lawyers who collect fees and then file nothing or
abandon a case before it's over. But if attorneys file glaringly bad
claims,
the bar typically does nothing.

The bar's investigators find it difficult to prove that someone who
worked
on a brief for more than 100 hours neglected the case, said Betty
Blackwell,
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
rules
don't really address that."

Blackwell, like many others, believes the job of watchdog belongs to
the
Court of Criminal Appeals, the tribunal that reviews every habeas
application and vets the list of attorneys who can be appointed to
capital
habeas cases.

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
habeas
lawyers, said the nine judges there disagree about what to do with
attorneys
who submit abysmal habeas petitions.

Some believe that only a formal reprimand from the State Bar would
justify
yanking a lawyer's name from the roster. That was the issue with at
least
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,"
she
said, "and I cannot get any support for it because he has no
disciplinary
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
necessarily be
troubled by a habeas application that fails to make any reasonable
arguments.

In their eyes, lousy arguments in a habeas case are likely the sign of
a
defense lawyer grasping at straws because the conviction was fair and
just.

"I'm not aware of and I don't believe there are cases where there's
gross
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
can be
found in most capital cases. To them, superficial habeas applications
signal
a lack of effort or ability.

"In every case I know of ... where someone didn't do their duty as a
habeas
lawyer and someone else came along and did it, there were new claims
that
were found," said Jim Marcus, a lawyer with the University of Texas
Capital
Punishment Clinic.

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
new
landlady and her 42-year-old son after they cut off his water and moved
to
evict him.

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
law.
Nowhere did his brief say anything about Kerr's trial.

The trial court, State District Judge Sharon MacRae, rejected the
petition.
So did the Court of Criminal Appeals.

A few months later, Marcus, then with the Defender Service, interceded.
He
took the case to federal court, where he showed how McGlohon had
mishandled
Kerr's habeas application. The federal judge was appalled.

Concluding that Kerr never had a fair habeas petition, U.S. District
Judge
Orlando Garcia kicked the case back to the state courts. Confronted by
the
judge's ruling, the Court of Criminal Appeals relented and made an
unusual
exception. It allowed him to refile his habeas petition.

The second time around, Kerr was represented by Marcus and Kathryn
Kase, an
attorney with the Defender Service. They had plenty to say about Kerr's
trial.

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
would
win, it only started preparing for the punishment phase after the
guilty
verdict.

By then it was too late to complete the detailed research expected in
capital cases. Kerr's relatives testified, but the jury never heard
several
potentially mitigating details about the tattooed defendant with a
history
of domestic violence and petty crimes.

Kerr had endured an abusive childhood and had helped care for two
brothers
with mental retardation and an ailing grandmother. He had a history of
head
injuries, drug abuse and learning disabilities, possibly because of
fetal
alcohol syndrome.

At least one juror said the new information might have convinced her to
spare Kerr, and Judge MacRae revised her previous findings. Earlier
this
year MacRae sent her conclusions to the Court of Criminal Appeals,
where
they are under review.

This time, she urged the court throw out Kerr's death sentence.
- - - - -
mrobbins@express-news.net
Staff Writer John Tedesco contributed to this report.