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Hilton Crawford, who is scheduled to be executed on July 2, is the new poster boy for death penalty reform in Texas. His attorneys allege that the murder for which he was convicted happened in Louisiana, not Texas, and that an earlier habeas corpus petition filed on his behalf was virtually a photocopy of the appeal. Critics of the system complain that many death row inmates don’t get adequate post-conviction review. They charge that the present system and the caps on fees and expenses attract unschooled and undedicated lawyers. “Texas continues to carry out executions at a prodigious rate, and because of failures in the system there is no way to know how many of them were innocent,” said Jim Marcus, director of the Texas Defender Service, a nonprofit law firm that aims to improve the quality of representation in capital cases. He said that many lawyers don’t present evidence of mitigation “or even bother to look for it.” Texas recently executed its 300th prisoner since the death penalty was re-instituted in 1976. It is on a pace to execute one prisoner a week this year. Many of the 38 states with capital punishment are wrestling with issues involving the representation of death-row inmates in state habeas review. The issues concern the entity that decides which attorneys are deemed qualified to represent condemned inmates, such lawyers’ compensation and the standards of competency that they must meet. The National Law Journal is examining several states currently grappling with these matters. This is the second part of an ongoing series. [ See " A Fight Over Limits on Pay, Hours."] These issues are on the the front burner in Texas. It has no public defender system for habeas review, but assigns all these cases to the private bar. Though it isn’t required to, Texas mandates the review and pays for it. It’s the quality of the work that’s at the center of controversy. The state Senate last week passed a bill that seeks to guarantee lawyer competency. It would: � Allow for multiple habeas petitions in cases of incompetent counsel. � Shift responsibility for selecting habeas counsel away from the top criminal appeals court. � Recommend standards of competency for lawyers. A less comprehensive bill awaits action in the House. The Senate bill would leave unchanged the $25,000 cap per case on what the state will reimburse a county for attorney and investigative fees and expenses in death penalty habeas review. Counties may augment this amount, but they rarely do. The bill falls short of the standards of the American Bar Association but has the support of the defense bar. “We are grateful,” said Andrea Keilan, Texas Defender Service’s legislative director. Many district attorneys don’t agree with the legislation, said Shannon Edmonds, legislative director of the Texas District and County Attorneys Association. “We did help work with the language to make sure it will withstand review,” he said. The organization does not take stands on specific legislation. District Attorney Roe Wilson, post-conviction writs chief for Harris County, which includes Houston, thinks the present statute is adequate. “I don’t think it should be tampered with,” she said. In Crawford’s appeal, the state’s highest criminal court, the Court of Criminal Appeals, found in its statement of facts that, while the victim had been kidnapped in Texas, the murder had been committed in Louisiana, where the body was found. Crawford v. Texas, CCA, No. 72,611. But since neither trial nor appellate counsel had raised that issue, the court did not address the issue of Texas’ jurisdiction. John Quinn, a solo practitioner in Bryan, Texas, was Crawford’s state-appointed habeas counsel. With minor word changes, his petition mirrored the mandatory appeal that was written by another lawyer. CCA Writ No. 40,439-3. Since habeas petitions are limited to issues outside the trial record, the petition was summarily dismissed. A subsequent federal petition met the same fate, since no cognizable issues had been raised at the state level, the death-knell of federal habeas claims. Crawford’s cause was taken up by Austin, Texas, attorney Ron Greenwood, who has 33 years of habeas experience. He and his co-counsel Ken McLean alleged in a subsequent petition that Texas lacked jurisdiction and that Crawford’s prior counsel had not represented him competently. They pointed to the trial counsel’s failure to call witnesses in the penalty phase to try to establish mitigating factors. The first habeas petition, they wrote, was automatically moot and “does not, in fact, qualify under any reasonable definition as being a ‘habeas corpus petition.’” Quinn declined to comment. Greenwood’s petition was denied. A certiorari petition is pending in the Supreme Court. A review of the 251 habeas filings in the state in 2002 by the Texas Defender Service found that 30 percent of briefs were 30 pages or less. In only 12 percent of cases did appointed counsel file discovery requests. Thirty-nine percent of the briefs didn’t include extra-record claims or materials, effectively ending post-conviction review when the petition was filed. Of the 142 attorneys on the approved list, 57 percent of them had been responsible for the filing of these wholly deficient claims, according to the report. Cynthia Orr, president-elect of the Texas Association of Criminal Defense Lawyers, said the system produces incompetence and indifference among habeas counsel. “Having seen the two-page writs and the nine-page writs, I think that’s evident,” she said. Orr chairs the death penalty committees for both the Texas and the National Associations of Criminal Defense Lawyers and is an associate at San Antonio’s Goldstein, Goldstein, & Hilley. Richard Wetzel, general counsel to the Court of Criminal Appeals, which, since 1999 has compiled the list of lawyers eligible to be appointed by district courts to state death penalty habeas cases, disputes the charge that the system is flawed. “There are always two sides to the story,” he said of the report’s findings. “To the extent they’re faulting counsel, as far as failure to file nonrecord claims are concerned, it’s a matter of approach.” The Texas Defender Service’s view “is that every death penalty is an unlawful conviction and every death sentence unlawful, and that there are grounds to set it aside. That is not true.” Asked about standards for counsel, he said, “There are no specific standards for the appointment of counsel. Three or four judges review the lawyers, and the standards vary from lawyer to lawyer. They look at each individually in order to find qualified individuals.” He said that an attorney’s ethical obligations may account for what the report deems a deficiency in claims on the defendants’ behalf. “You can’t make issues up,” he said. “They’re there or they’re not. Attorneys have an ethical obligation against filing frivolous claims. It does not mean that claims were not investigated properly. It’s a matter of approach. We appoint lawyers to these lawsuits. We don’t appoint people to investigate.” Andrew Hammel, adjunct professor at the University of Texas School of Law, said investigation is the point of habeas petitions — to investigate issues outside the record, to find new or previously unavailable witnesses or discredit old ones, to find evidence to mitigate the penalty and to look for prosecutorial misconduct. Hammel is co-director of its Capital Punishment Litigation Committee. An associate at Austin’s Owen & Rountree, he does death penalty habeas corpus work. Court of Criminal Appeals statistics show that in 306 state death penalty habeas cases, lawyers billed an average of $18,859 out of the $25,000 allowed. “There is no way you can even begin to perform a competent state habeas in 190 hours and remember, here, that includes investigator’s fees and expenses,” Hammel said. “Compare it to the 840 hours attorneys get paid for in Florida, plus what they get for other expenses. And many fine lawyers say that’s only a third of what you really need.” THE ‘GRAVES’ CASE Crawford’s case was closely followed by the defense bar because it gave the appeals court an opportunity to revisit Ex Parte Graves, 70 S.W.3d 103 (2002), which Greenwood asked the court to do. Anthony Graves was convicted of capital murder after his alleged accomplice testified against him in a deal with prosecutors, who agreed not to prosecute the accomplice’s wife. The accomplice, who has been executed, recanted his allegations against Graves in front of the the grand jury but testified against Graves at trial. He recanted again at a deposition, and finally in front of witnesses to his execution, just moments before he died. No motive was alleged other than that one of the six victims, all family members, was promoted over Graves’ mother at a workplace several years earlier. Graves’ first habeas lawyer had been out of law school for only three years. He did not subpoena the alleged accomplice to make a court record of his recantation. Graves, whose subsequent habeas petition was filed by Greenwood, argued, among other issues, the ineffectiveness of his prior habeas counsel. The Texas appeals court ruled that only the initial qualifications of an attorney were determinative, not their work product. Three dissents were filed in Graves. In one, Judge Tom Price wrote, “‘Competent counsel’ ought to require more than a human being with a law license and a pulse.” Graves is still on death row. LEGISLATION The bill passed by the state Senate provides for subsequent habeas writs if “the applicant was represented by incompetent counsel during the initial application [and] as a direct result … a meritorious claim or issue … was not raised [and] if proven … could entitle the applicant to relief.” Besides providing for payment of subsequent counsel, it also takes the authority to create the list of habeas lawyers from the Court of Criminal Appeals and gives it to a more diverse task force. The bill also recommends lawyer competency standards to the task force, including proficiency, commitment and experience. “This legislation will help to ease some of the worries that Texans have about our criminal justice system,” said state Sen. Rodney Ellis, who co-sponsored the legislation with Sen. John Corona. Roe is concerned that defense lawyers will use the process to perpetuate endless rounds of writs, but if it’s “used only in cases where there was truly an inadequate writ filed,” she says she, too, believes in fundamental fairness. The House bill, H.B. 615 lays out strict standards for competency and also gives the task force the job of compiling and maintaining the list, but does no more. The bills will need to be reconciled.

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