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To critics of the Texas death penalty system, often the accused are victims who are represented by borderline lawyers and doomed to death because of inept counsel. To defenders of the system, the legal representation afforded those accused of capital murders where prosecutors seek death sentences passes the test of justice. Two recent reports come down squarely on the side of critics. An October report from the Texas Defender Service and a September offering from the Texas Civil Rights Project paint sad pictures of justice gone awry when it comes to the defense of those who face possible death sentences. “Many post-conviction lawyers have displayed obvious signs of inexperience and incompetence,” claims the Texas Defender Service. TDS and TCRP point to a variety of issues, including low pay and inadequate resources for court-appointed lawyers in capital punishment cases, as a key point of unfairness in a system they say is rigged to convict rather than seek justice. It is not a new issue. Critics have long contended that death penalty cases involving the indigent are one situation where DAs often have the upper hand. O.J. Simpson may have had the so-called “dream team,” but the indigent are not afforded such resources. Critics such as TCRP Director James Harrington allege it is typical for the state to come to court with a top-flight prosecutor, who then faces off against an inexperienced appointed lawyer. And the state brings all its resources to bear — a loss in a death penalty case is politically embarrassing to a DA and must be avoided at all cost — while the defense may not have the tools it needs to fend off the attack. The Texas Defender Service cites the case of Ricardo Aldape Guerra, among others. In 1980, his defense lawyers struggled for payment of $700 for investigation expenses. Guerra was found guilty and sentenced to die, but his conviction was later overturned because of alleged police and prosecutorial misconduct, according to the TDS, and Guerra was set free when Harris County prosecutors declined to retry him. The TCRP and TDS reports cite the case of Federico Macias, convicted and sentenced to die in 1984. The reports say Macias’ trial attorney received only $500 for investigation and expert witness costs. Macias was later exonerated, but the 5th U.S. Circuit Court of Appeals, in Martinez-Macias v. Collings, sniped at the state: “The state paid defense counsel $11.84 per hour. Unfortunately, the justice system got only what it paid for.” ALLEGATIONS DISPUTED Defenders of the system, such as Harris County DA Johnny Holmes, don’t buy the arguments. In a county that leads the nation in death sentences, he has tried what he describes as “a half dozen” death penalty cases. Holmes says in each case he not only faced a strong defense, but also the lawyers were all former assistant district attorneys. In Harris County, Holmes says he suspects that the majority of death sentence defense attorneys at trial are his former employees. And he refuses to believe they are doing sloppy work. But the TCRP study does show a disparity. It reports that defense lawyers in Harris County death penalty cases receive a maximum of $540 per day, although judges do have discretion to award any amount they feel is reasonable. “Criminal defense attorneys retained for a capital case might typically average $300-$500/hour,” the TCRP report states. The report adds that Harris County, on average, is the highest-paying county in Texas and is not representative of the state as a whole. “It’s pathetic,” Harrington says. “And Harris County is less pathetic than most, that’s all,” he adds. Harrington says pay for court-appointed capital punishment cases in Texas is discretionary across Texas, and the amounts allowed by judges is “all over the board.” He alleges all Harris County did by raising rates several years ago was admit that what it did in the past was even more pathetic. Harrington adds that even with minimum standards imposed in Harris County for appointment as defense counsel in death penalty cases, the system overpowers the indigent accused. “It’ll be a cold day in hell when the defense outguns the prosecution in a death penalty case in Texas,” Harrington says. The TCRP report calls for more stringent minimum standards in death penalty cases proposed by the American Bar Association, which include guidelines for years of experience as an attorney and numbers of complicated felony cases handled. Bob Hinton, president of the Texas Criminal Defense Lawyers Association, says appointed defense lawyers at the trial and appellate levels are not being paid as much as they should, and the result is that people are not being represented by competent lawyers. He says there is no uniformity around the state; the only answer is state funding for indigent representation, Hinton says. His organization urged members to no longer accept appointment to habeas cases in 1998. In its resolution, the TCDLA said that Texas, with limited funding for appellate death sentence defense work, “will not afford a citizen sentenced to death any meaningful review” and added that lawyers who accept such assignments “are providing no other service but to hasten the execution of citizens sentenced to death.” The group says it cannot accurately report on how many, if any, of its members joined the suggested boycott. Even the resolution passed by the TCDLA board says that many lawyers will continue to accept appointments as a matter of conscience. Holmes says that if appointed lawyers feel they should be paid more, they should lobby for it. But he says pay is not a factor in a trial itself. Hinton says his group will lobby the Legislature for guidelines on what defense lawyers should be paid to represent indigent defendants and hopes a commission will be appointed to study what the pay rates should be. “That’s saying the quality of representation is dependent on whether I get $500 a day or $1,000 a day,” Holmes says. “If I were a defense lawyer, I would be upset by that.” Mike Jones, spokesperson in Austin for Gov. George W. Bush, says the state is committed to making sure that there is justice in death penalty cases. He points out that Texas law requires lawyers to be reimbursed for necessary expenses when defending the indigent. And he says the state spends $4 million every two years — Texas works with a two-year budget — reimbursing counties for legal expenses of court-appointed lawyers in death penalty cases. Jones says the state spends about $400,000 every two years to assist with the training of those defense lawyers. Critics say it is not enough. Houston-based Justice for All stands by the death penalty system in Texas. The group sponsors Internet sites such as prodeathpenalty.com and murdervictims.com. Justice for All President Diane Clements says that it takes two to tango, even in death penalty cases. And she says prosecutors do stumble and fall. Notes Clements, “You never hear reports of inept prosecution letting a guilty person go free.” THE TCRP’S WISH LIST In addition to calling for a moratorium on executions, the Texas Civil Rights Project called for a slew of other changes in its September report. Among those measures, TCRP recommends the appointment of a panel — by the governor, Legislature, Texas Supreme Court, Court of Criminal Appeals and the State Bar of Texas — to review each death row case. The panel would look for cases that should be stayed pending a full due-process hearing. And the group also says a similar panel should review the entire death penalty system in Texas. TCRP maintains anyone wrongfully convicted and sentenced to death should be repaid for any legal expenses and receive statutory damages of $3,000 for each month on death row. The group says juries in capital punishment cases should be allowed to hand down a sentence of life without parole as an alternative to a death sentence. In its report, TCRP says the Board of Pardons and Paroles should set up a process to administer DNA tests to prisoners who request them. TCRP also wants those board members to meet as a body when considering clemency petitions rather than voting on them by fax and telephone. TCRP says the execution of anyone with an IQ of 70 or less should not be allowed. A bill that would have set the IQ limit at 65 failed in the Legislature’s 1999 session. TCRP says a bill setting the benchmark at 70 is anticipated when the Legislature meets in 2001. TCRP Director James Harrington says that at least two people with IQs of less than 70 are on Texas’ death row. And TCRP, in its report, also calls for a ban on giving a death sentence to anyone for acts committed while that person was younger than 18.

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