TEXAS DEATH PENALTY APPEALS LAWYERS OVERWORKED, SOMETIMES SLOPPY
Texas' appeals system for indigent convicts facing the death penalty suffers
from poor representation, plagiarized boilerplate legal arguments and other
flaws that could result in innocent people being executed, according to a
scathing new report by a prominent lawyers group.
The report by the nonprofit Texas Defender Service highlights cases in which
attorneys never visited their condemned clients in prison, missed filing
deadlines and even missed court hearings because they were busy on other cases.
The group, which has a reputation for challenging Texas' frequent use of the
death penalty, called the legal deficiencies "multiple and severe."
"Because Texas uses the death penalty so much, that makes this report extra
ugly," said Kathryn Kase, executive director of the group, which was created in
1995 to improve Texas' justice system and the quality of legal representation
afforded to convicts facing the death penalty. "These findings are about as bad
as you can get."
The report is focused on direct appeals, those started immediately after a
conviction, in which trial errors and other issues can be legally vetted before
an execution occurs. Those can include complaints of racial bias, ineffective
counsel and other legal issues.
Condemned Texans who cannot afford to pay for their own lawyers - a majority on
death row - typically get attorneys appointed by local judges, who generally
award those cases to friends or lawyers willing to take on those appeals, the
It recommends that Texas create a state office to oversee death-penalty direct
appeals, to appoint 2 lawyers to each direct appeal instead of one, and to
reform the system to provide minimum standards and better compensation for
lawyers in some parts of the state to guard against ineffective counsel.
With public support for the death penalty in Texas waning, and as life without
parole has become a more popular alternative, the group's findings almost
assure that the oft-criticized appeals system in capital cases will be a topic
of debate when the Legislature convenes in January.
A growing chorus of critics in recent years has warned that, absent reforms,
Texas' current system is likely to face increasing scrutiny by appeals courts.
Patrick McCann, a Houston defense lawyer with expertise in capital appeals,
characterized the report's findings as horrible, astounding and disheartening.
"This report is a very sad commentary on how the system runs and whether or not
it should be revamped or scrapped," he said. "There's nowhere to go from here
The report, "Lethally Deficient," was set for release early today. An advance
copy obtained Monday showed the group reviewed 84 death penalty appeals decided
by the Texas Court of Criminal Appeals between January 2009 and December 2015.
Of those, Kase said, convictions were overturned in only 3 cases.
The report targets Texas' practices for selecting direct-appeal attorneys for
its harshest criticism. While death-penalty trials require 2 attorneys be
appointed to each case, direct-appeals appointments get only 1.
"This leaves the defense short-handed and runs counter to the recommendations
from the State Bar of Texas and the American Bar Association that 2 lawyers
represent a defendant through a death-penalty case," the report states. 2/3 of
the cases in the study sample were handled by solo practitioners, who "may lack
ready access to direct supervision, consultation or support staff."
The report also contends that low pay rates in some rural counties could lead
to ineffective or sloppy representation.
"Some lawyers who handled appeals in our survey had a capital and noncapital
workload during the 2014 fiscal year that equaled the recommended workload for
three or more lawyers," the report states.
Additionally, the report's authors said, a lack of direct supervision led to
instances in which appointed lawyers copied text in their filings directly from
Lawyers in other states have been sanctioned for copying and pasting such
wording in filings, but none in Texas has been penalized, the report notes. In
one example cited by the report, a lawyer copied a trial motion "without
analyzing the trial court's decision or making her own argument in support of
the client's appeal."
The report also stated that lawyers in 24 cases did not list any time in
billing records dedicated to communicating with their clients. 2 defendants
wrote to the Texas Court of Criminal Appeals to report that they had not heard
from their lawyer; 3 defendants wrote that their appellate lawyer had filed
briefs without consulting them.
Brian Stull, a North Carolina-based senior staff attorney with the Capital
Punishment Project of the American Civil Liberties Union who has handled Texas
death penalty cases, said the report highlights serious issues that need to be
"The direct appeal is where important issues are reviewed in death-penalty
cases," he said. "The Texas system has major problems."
(source: Houston Chronicle)
Wasting big money to keep death penalty
Nebraskans have the opportunity on Nov. 8 to end a wasteful and ineffective
government program, capital punishment. Opportunities don't come along often
when voters can so directly influence government spending.
According to a Nebraska economist's study, Nebraska is wasting a lot of money
to maintain its death penalty. Creighton University economist Ernie Goss says
its costs Nebraskans $14.6 million annually to prosecute capital punishment
cases, defend against numerous appeals and house convicted prisoners on death
row. Despite all the big spending, Nebraska hasn't executed anyone for almost
20 years. The last time a convicted killer was put to death was in 1997.
Today, 10 people with murder convictions face execution, but it's a long shot
any of those 10 will ever make it to the death chamber. That's because recent
court rulings are making it more and more difficult to impose the death
penalty. Also, as Nebraskans know, it is difficult - if not impossible - to
legally acquire the drugs needed for Nebraska???s lethal injection protocol.
Gov. Pete Ricketts and the Department of Corrections wasted $54,000 in 2015
attempting to purchase and import the death chamber drugs. The Federal Drug
Administration won't allow the drugs to be imported, and American
pharmaceutical companies don't want to supply them.
Voting to set aside lawmakers' 2015 repeal of the death penalty makes no fiscal
sense. Why continue spending so much to maintain a program that produces so
little? Nebraska is unable to use capital punishment because of legal and
pharmaceutical hurdles, and even if we were able to execute convicted killers,
would it really make a difference? Few studies have concluded the death penalty
deters crime. That is because murder frequently is a crime of passion committed
in the heat of the moment.
Since 1973, there have been 1,842 homicides in Nebraska, yet very few of those
crimes resulted in death penalty convictions. Has the threat of capital
punishment really slowed down the killing? No. Also, why, when there have been
so many killings, are only 10 people awaiting execution?
There's a better way. Nebraskans should accept the Legislature's repeal of
capital punishment in favor of life in prison without the possibility of
parole. Life puts killers away for good, and their cases are resurrected only
if credible evidence surfaces that puts their guilty verdict in question. No
more innocent people will be sentenced to die for crimes they didn't commit,
and Nebraskans would no longer be asked to pay for a government program that
gets no results.
(source: Opinion, Kearney Hub)
Martinez eyes death penalty in special session
New Mexico Gov. Susan Martinez says she will place reinstating the death
penalty on the agenda for the pending special session to fix the state's
The Republican said in a statement Monday that she wants the death penalty as
an option for convicted killers of police, children and corrections officers.
New Mexico repealed the death penalty in 2009 before Martinez took office by
replacing provisions for lethal injection with a sentence of life in prison
Martinez previously indicated she would back legislation for capital punishment
during the upcoming state legislative session in January.
The move comes as lawmakers are calling for a special session to address an
half a billion dollar shortfall.
(source: Associated Press)
With Death Sentence Looming, Judge Keeps Defense Motion Sealed in Wozniak Case
With Daniel Patrick Wozniak's likely death sentence just days away, the judge
in his double-murder case has taken the unusual step of blocking public release
of the defense's last-ditch arguments to win a new penalty trial.
For nearly 2 weeks, Superior Court Judge John D. Conley has refused to unseal a
185-page motion filed Sept. 2 by Wozniak's public defender, Scott Sanders.
On Friday, during the case's most recent hearing, Conley agreed to keep
Sanders' motion sealed because deputy district attorney Matthew Murphy said he
needed more time to review the defense pleadings to insure no deleterious
informant information would be inadvertently revealed. But then on Monday,
Conley allowed the public release of Murphy's response to the sealed motion.
During arguments in court Friday, Sanders repeatedly insisted there is nothing
in the motion that warrants sealing, adding he "never heard" of such a series
Last January, a jury recommended the death penalty for Wozniak, a Costa Mesa
man who in 2010 decapitated 26-year-old Samuel E. Herr, dismembered his body,
and threw the parts in an estuary. He then shot and killed Herr's friend,
23-year-old Juri "Julie" Kibuishi, in an attempt to throw investigators off his
It is widely expected that Conley will hand down a death sentence against
Wozniak on Friday. There is another hearing scheduled for Wednesday, during
which Conley could unseal Sanders' motion.
Wozniak's case has been extended for nearly three years in large part because
Sanders in 2014 disclosed a wide-ranging informant network in Orange County
jails, where sheriff's deputies and prosecutors had violated the constitutional
rights of criminal defendants.
Sanders' revelations came as part of his defense of Scott Evans Dekraai - who
in 2011 gunned down his ex-wife and seven other people in a Seal Beach beauty
salon - but the ramifications have spilled over into the Wozniak case and
Various court proceedings and observers suggest Sanders' sealed motion may
include more critical or embarrassing information about the DA's office, the
court, and/or the Sheriff's Department.
The 34-page filing by Murphy is highly critical of Sanders' defense tactics for
Wozniak and accuses him of "professional misconduct" in defenses in other
When asked to comment, Sanders said: "Based on the court's rulings, I believe I
am prohibited to speak about my own brief until it is unsealed."
In Murphy's filing, there are hints of what Sanders is arguing in his
suppressed motion for a new penalty phase trial for Wozniak.
The pleadings suggest the defense is arguing Wozniak was denied the opportunity
to fully cross examine Costa Mesa detectives because information about a jail
informant was withheld until this spring - when yet another batch of hidden
records was uncovered at the sheriff's department.
Additionally, the prosecution brief belittles Sanders' apparent theory that
Costa Mesa police had planned to arrest Wozniak's fiancee - Rachel Buffett -
for murder, but then did not. Sanders apparently argued this limited his
ability to fully question detectives, compromising his client's defense.
Buffett, a former child princess in Disneyland shows, and, like Wozniak, a
community actor, faces three felony counts of being an accessory after the fact
to the murders for allegedly lying to detectives to protect Wozniak. Her
prosecution has been delayed, with the next hearing set for Nov. 10. Her Santa
Ana attorney, David Medina, couldn't be reached for comment Monday.
Also, Sanders apparently alleges in his sealed motion that details relating to
the 2006 beating death of John Derek Chamberlain in the Theo Lacy Jail are
pertinent to his defense of Wozniak.
Chamberlain was tortured and beaten to death by fellow inmates, who mistakenly
believed he was a child molester, while sheriff's deputies failed to respond,
some reportedly watching television.
Murphy argues all these issues are irrelevant, and their use is not supported
by the law.
Evidence of Wozniak's guilt is overwhelming, Murphy added, noting the killer's
confession, physical evidence, and his continued partying after the killings
during the prelude to his planned wedding. Wozniak's desire for money to pay
matrimonial costs has been cited as a primary motive.
Murphy goes on to assert in the filing that Sanders has accused some 15
prosecutors - including Rackauckas - of improprieties in various prior cases.
In early 2015, after Sanders spurred an unprecedented hearing revealing
informant misconduct in the Dekraai case, Judge Thomas M. Goethals barred
District Attorney Tony Rackauckas' entire office from prosecuting Dekraai's
penalty phase. Dekraai pleaded guilty in 2014. That recusal ruling is under
appeal by the state Attorney General's Office, which would assume the
prosecution if Goethals' ruling is upheld.
Additionally, more than a half dozen individuals convicted of murder or other
serious crimes have had their life sentences overturned based on informant
revelations from Sanders' defense of Dekraai and Wozniak.
But Conley has blocked the use at trial of details about informants in the
Wozniak case, calling them irrelevant and ruling such evidence couldn't be used
by the prosecution.
In particular, Conley cut off Sanders' probing and disclosures about a cache of
computer records deputies kept secret until this past spring. This "special
handling log," in which deputies charted the activities of informants and
others in the County Jail in Santa Ana, is among evidence Sander's cites in his
sealed motion, according to Murphy's filing.
But on Thursday, Goethals will hold a hearing in the Dekraai case on Sanders'
request to unseal records from the newly disclosed special handling log. Last
month, Goethals ruled "a substantial amount" of records from that log were
withheld from Dekraai for years.
During the Thursday hearing, the prosecution may report to Goethals on yet more
evidence that should have been revealed previously to Dekraai's defense.
Last week, Sanders filed a motion asking Conley to unseal the special handling
log in a manner to not endanger informants.
And late Monday, he filed a request for a 3-week continuance to Wozniak's
sentencing - to give him time to respond to the prosecution's criticisms.
Sanders wrote that Murphy "wanted the allegations to be seen," preferably "at a
time while [the defense] brief was sealed." Sanders added, "This is why he
claimed for 13 days" he couldn't check the sealed motion for possible errant
Sanders also wrote the prosecution's misconduct allegations against him are
A service courtesy of Washburn University School of Law www.washburnlaw.edu
DeathPenalty mailing list