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Because of a paperwork glitch, writ applications filed on behalf of approximately 30 Tulia, Texas, residents convicted on drug charges after a 1999 sting operation could have been returned to their attorneys without being considered by the state’s Court of Criminal Appeals. Some attorneys failed to state the grounds for an applicant’s claims on the form accompanying each habeas corpus writ application, as required under Rule 73 of the Texas Rules of Appellate Procedure. Rule 73, which took effect on Jan. 1, 2001, requires that post-conviction habeas applications be made on a form prescribed by the CCA. Under Rule 73.2, the CCA clerk may return an application that doesn’t comply with the rule. The rule specifies that the person who makes the application must provide all information required by the form. Instructions on the form require an applicant to state concisely every ground on which he or she is making a claim. If the grounds for a claim aren’t stated on the form, the writ application will be returned to the district court clerk, who will be directed to return the application to the applicant, says Rick Wetzel, the Court of Criminal Appeals’ general counsel. Defects in the forms filed with the Tulia residents’ writ application came to light on June 17 — the day after 12 of the defendants were freed from prison on bond. Visiting Judge Ron Chapman of Dallas set bail for each of the 12 during a June 16 hearing in Tulia’s 242nd District Court. A review conducted last week by Texas Lawyer found that the grounds for claims were stated on forms accompanying the applications filed on behalf of only five of the Tulia defendants. The applications of four of those individuals were the first filed for habeas hearings in March in the 242nd District Court, says Able Acosta, the CCA’s chief deputy clerk. Texas Lawyer examined the applications of 32 individuals — some of whom have multiple applications. On the forms filed with the writ applications for 27 Tulia residents, the words “see attached” are written in the space provided for stating each ground for a claim. The grounds are detailed in briefs attached to the applications. Writing “see attached” on a form is not clearly and concisely stating a claim, Wetzel says. Amarillo, Texas, solo Jeff Blackburn, of counsel to the 38 Tulia residents awaiting disposition of their writs, says he had made sure the forms accompanying the first four writs filed were done correctly but that mistakes were made in the rush to file applications for the other defendants. “In our haste, we forgot to fill out the cover sheets correctly, but we are correcting the problem immediately,” Blackburn says. Blackburn says corrected forms were to be sent to the CCA by June 20, after press time. Submitting forms that state the grounds for each claim should cure the problem, Wetzel says. “We can’t let any procedural thing get in the way of the review on the merits,” says Vanita Gupta, assistant counsel for the NAACP Legal Defense and Educational Fund, which represents a majority of the Tulia defendants. TECHNICALITIES The CCA is reviewing the Tulia defendants’ convictions, which were based on the uncorroborated testimony of Tom Coleman, an undercover narcotics officer formerly employed by Swisher County. On April 1, after a week of testimony in habeas corpus hearings in the cases, the defense and prosecution agreed to stipulate that Coleman was not credible, and Chapman said he would recommend that all the defendants receive new trials. “I feel sure the Court of Criminal Appeals is more concerned with justice than technical paperwork requirements,” Blackburn says. CCA Presiding Judge Sharon Keller says she had not looked at the applications filed on behalf of the Tulia residents. But Keller says the court does send back writ applications that do not comply with Rule 73. Wetzel says the court receives about 7,000 writs a year and probably returns five to 10 a week. “We attempt to enforce the rule and do our best to see that it is uniformly, evenly and fairly applied,” he says. David Schulman, an Austin, Texas, solo who handles habeas writs, says the rule is clear and is published on the CCA’s Web site. But Schulman adds, “I’ve never liked the rule, and I don’t think it does anything to further the interests of justice.” Wetzel says the rule assists the court and assists the applicants by requiring them to state clearly the grounds on which they are basing their claims.

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