Death row lawyers put on notice

The court previously had no mechanism in place to identify poorly performing lawyers or to remove them from a court-run list of attorneys eligible to submit, at state or county expense, writs of habeas corpus for death row inmates.

Habeas writs are considered the more important of two appeals given to the condemned in Texas, but a recent Austin American-Statesman review of the appeals system found that the court tolerated lawyers who regularly submitted writs that were incomplete, unintelligible or improperly argued.

The situation has persisted despite an 11-year-old state law requiring the Court of Criminal Appeals to ensure that death row inmates receive competent legal help for their appeals.

Under rules adopted unanimously after extensive behind-the-scenes debate, a majority of judges can remove a lawyer from the court's habeas list for any writ that exhibits "substandard proficiency."

Lawyers also can be removed for engaging in unprofessional or unethical behavior or if they are found to have provided poor legal representation in a criminal case.

Interpreting the rules is left to the discretion of each judge.

"We recognize the need to have at least somewhat more specific rules . . . to remove attorneys who are not fulfilling their obligation to their clients," said Judge Cathy Cochran, who initiated the rules change with Judge Cheryl Johnson.

Mandy Welch, a Houston lawyer who teaches continuing education courses on habeas law, was heartened by the changes, though she wanted to observe the court's interpretation of the rules before offering wholehearted approval.

"Reviewing a lawyer's performance is critical to ensuring that people are properly represented, and this is at least a move in the right direction," Welch said.

The rules are meant to be a first step, Cochran said.

The court is awaiting recommendations from a State Bar of Texas task force formed last month to recommend extensive fixes to the state's death penalty habeas system.

"We're only partway there," Cochran said. "We are hoping the task force comes up with more specific recommendations. In the meantime, at least we have something in place."

F.R. "Buck" Files Jr., a Tyler lawyer and co-chairman of the task force, said the 12-member group is eager to work with the court.

"Everything that we have heard tells us the ball is in our court and (the judges) are waiting to hear from us," he said.

The committee's first meeting was Dec. 1, and the goal is to produce a report by April, while the Legislature is still in session.

The Court of Criminal Appeals had been kicking around changes to the habeas system for more than a year, but one of the sticking points was creating a fair process for lawyers being removed from the court's habeas list.

In the end, the court declined to establish a formal appeals process, though lawyers may ask the judges to reconsider their decision within 15 days. Removed lawyers also may reapply to join the habeas list after two years, but only after demonstrating improved proficiency and professionalism and submitting three writs of habeas corpus in non-death penalty cases.

"We have been thinking, talking about it for well over a year," Cochran said. "And, quite honestly, it was probably the Austin American-Statesman that caused it to move faster rather than slower."

The Statesman series, which ran Oct. 29 and 30, examined habeas lawyers who simply copied from their previous appeals or from other attorneys, whether the facts applied to their current case or not, or who recycled claims that have been denied time and again while ignoring obvious avenues of investigation.

One lawyer submitted a writ copied almost entirely from his client's letters from death row, including this memorable passage: "I'm just about out of carbon paper. As soon as I get some more typing supplies I have about thirty more errors I want . . . in my appeal."

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The Great Writ

The writ of habeas corpus, known as the Great Writ, is meant to protect against illegal detention by asking the courts to re-examine the circumstances and legality of an inmate's confinement.

Taken from the Latin for 'you have the body,' habeas corpus is derived from seven centuries of British law that required authorities to bring incarcerated people to court so their sentences can be reviewed.

Habeas writs have been used to exonerate several men on Texas death row and led to U.S. Supreme Court decisions that fundamentally altered death penalty law across the nation.

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