April 12
TEXAS:
Keel-Hauling Death Row Defendants
Should Austin Republican Rep. Terry Keel's HB 268 pass through the Lege as
currently written, Texas may become the first state in the nation to
fast-track federal appeals for indigent death row defendants - clearing the
way for the state to whisk their gurneys to the death chamber, potentially
without the benefit of any meaningful federal appellate review. To hear
Keel tell it, that outcome would be an affirmation that his bill has so
effectively raised standards for attorney appointment in indigent capital
cases that the feds will be willing to trust the well-oiled efficiency of
the Texas death penalty system.
Primarily, the bill seeks to expand the pool of qualified lawyers by
making eligible former prosecutors and appellate lawyers who have no
previous experience defending capital cases at trial. Under current law, a
lawyer must have experience as a second-chair defender to be eligible for
lead counsel. Keel argues that since there are relatively few death trials
each year, that's too great a hurdle, and effectively just a way for
defense attorneys to protect their legal turf. But the qualifications
would also apply to those attorneys eligible to handle post-conviction
habeas corpus appeals thereby qualifying the state for federal "opt-in"
status, triggering a set of federal provisions that would drastically
reduce the amount of time attorneys have to file federal appeals, as well
as reducing the ability of defendants to receive stays of execution.
Congress' last real modification of the law governing federal death case
review came nearly a decade ago, during the Clinton administration, with
the passage of the Antiterrorism and Effective Death Penalty Act of 1996.
If a state's statutory standards meet AEDPA requirements basically, only
that the state "provide standards of competency for the appointment" of
habeas counsel the state may qualify to opt in to "special procedures,"
including reducing the period allowed for filing an appeal from a year to
six months drastically reducing the amount of time attorneys have to
investigate and prepare their cases and prohibiting federal courts from
staying an execution if the attorney is tardy in filing a federal writ.
Lawyers would have to litigate death cases under the gun to beat execution
dates.
According to the Texas Defender Service's 2002 report on Texas death
penalty appeals, late filing has been a problem, in part because the
federal rules are complicated and many attorneys misunderstand them
including those the state otherwise deems eligible for appointment. Even
under the current deadlines, Texas has executed four death row prisoners
whose cases were never reviewed by a federal court because their attorneys
filed their appeals late a circumstance that has not happened in any
other state. No one, including the Court of Criminal Appeals, which
maintains the list, does anything to ensure that the attorneys listed are
actually able to handle the job.
Nonetheless, Keel's bill would apply the same standards required for trial
appointment to habeas appeal attorneys, thus triggering the opt-in
language. Theoretically, the opt-in provisions are intended as a quid pro
quo offering a s tate-hastened finality in death cases in return for
providing competent lawyers to indigent capital defendants. Yet if Keel's
bill passes, it would be a "quid without the quo," says Jim Marcus of TDS,
because the standards don't require that the work of the eligible
attorneys be reviewed to ensure that they're actually providing competent
and effective counsel.
For example, under Keel's bill, David Chapman, who represented executed
inmate Leonard Rojas, would still be qualified for appointment, even
though he failed to timely file Rojas' appeal and had received 3
probated suspensions from the Texas State Bar - the 3rd coming just 2
weeks before the CCA denied the appeal he filed on Rojas' behalf. Two
months after Rojas' execution, CCA Judge Tom Price authored a stinging
opinion in Rojas' case, decrying the court's unwillingness to intervene
despite serious issues regarding Chapman's competency. Presiding Judge
Sharon Keller's response proclaimed that Rojas' statutory right to
"competent counsel applies only to the attorney's initial qualifications"
such as Keel's list of appointment standards "and does not apply to the
final product of representation."
On March 1, Austin attorney Gary Hart, who has been handling death row
appeals for nearly a decade, told Keel's Criminal Jurisprudence Committee
that applying blanket standards for appellate appointments would be
"extremely dangerous and extremely embarrassing, ultimately. There are
ways to accomplish the same thing without making Texas the first opt-in
state in the entire country." Although Keel told the committee that it was
not his intent for Texas to become an opt-in state, he said he would not
favor requiring the state to conduct an annual review of the lawyers on
the appellate appointment list.
Despite the concerns of several members, the committee voted to move the
legislation to the House floor, where it was voted out on March 21, with
only Rep. Lon Burnam, D-Fort Worth, voting against it. Rep. Pete Gallego,
D-Alpine, offered an amendment, which Keel initially accepted, that
would've required the CCA to do an annual review of the appellate
attorneys, creating a case-by-case system for approving their appointments
and thus bypassing the opt-in provision, while still raising qualification
standards. But just before the vote, Keel amended the bill again, striking
the case-by-case review and reinserting the opt-in language. The bill then
passed with 140 votes, including that of Gallego. Whether it will be as
well-received in the Senate remains to be seen.
(source: Austin Chronicle, April 8)
