Legislature must prioritize death penalty appellate counsel

The state of Texas’s continued reliance on the death penalty as a method of punishment is one of the most divisive issues in state criminal justice policy. But this premise garners consensus: If we are to execute people, we must execute the right people, those who actually committed the crimes and who actually merit capital punishment under the laws of our state.

Unfortunately, Texas’s inattention to a major hole in its provision of representation for those facing the death penalty is substantially undermining that protection. Under Texas and federal law, the primary vehicle for correction of error in a criminal case is the first direct appeal, taken immediately after a conviction. Following that direct appeal, all subsequent courts that hear challenges to a conviction will defer to many of the factual and legal findings made by that appellate court. Errors not raised or caught at that critical first appeal are in many instances forever forfeited. Indeed, Texas has recognized the significance of direct appeal in capital cases by providing that in only capital cases the state’s highest criminal court, the Court of Criminal Appeals, handles direct review.

Yet Texas has failed to ensure that death row inmates receive adequate appellate counsel in death penalty cases. While the Office of Capital and Forensic Writs provides well-funded and well-supervised counsel in post-appellate habeas proceedings, appointment of appellate counsel happens through a patchwork of county-level policies with little quality oversight. Contrary to the American Bar Association’s standards for fairness, Texas provides only one, not two appellate lawyers for death-sentenced defendants and has poor mechanisms in place to screen lawyers for their skill in litigating appeals prior to appointment. Compensation set by counties for appellate counsel is frequently grossly inadequate and creates pressure on appellate lawyers to take on unmanageable caseloads. The deficiencies are all the more glaring given the superior resources of the state in most capital appeals, which are typically handled by large county district attorney offices with specialized appellate units and multiple lawyers assisting in briefing.

Such were the conclusions of a statewide taskforce of attorneys, legal scholars and former judges, which I chaired from 2011 to 2013. Our report’s findings were powerfully amplified in a recent report issued by the Texas Defender Service, which detailed findings from analysis of direct appeals in capital cases from 2009 to 2015. That report found that the majority of death penalty appeals are handled by solo practitioners; that those lawyers often face vastly superior litigation resources from the state; that appellate defenders are commonly overburdened with caseloads that greatly exceed the norms in other death penalty states; and that the lawyers routinely render substandard performance by filing boilerplate briefs, waiving opportunities to submit reply briefs and failing to seek review before the Supreme Court. Critically, in the time period studied, only three defendants had their death sentences reversed on appeal; all were represented by two lawyers.

These issues should be given priority attention in the upcoming legislative session. A statewide appellate defender office, comparable to the Office of Capital and Forensic Writs, would be a substantial improvement on the patchwork of appointment, oversight and compensation that currently characterizes capital appellate defense in Texas. Death-sentenced defendants should, as the American Bar Association recommends, enjoy the assistance of two lawyers in their appeals. At a minimum, the Legislature must shore up oversight of appointment and compensation standards that are currently fragmented and inadequate.

More than 150 years ago, Texas was in the vanguard in creating a right to trial counsel for defendants facing the death penalty, over half a century before the Supreme Court required it. But Texas has not kept up its commitment to fairness and accuracy in capital cases. Removing structural impediments to accurate determinations of who should live or die is a moral imperative. It is well within the capacity of the Texas Legislature to respond to that challenge.

Laurin is a professor at the University of Texas School of Law. She was the chair of the American Bar Association Texas Capital Punishment Team that produced the 2013 report “Evaluating Fairness and Accuracy in State Death Penalty Systems: The Texas Capital Punishment Assessment Report.”

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