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Affirming convictions in death penalty habeas corpus writs is a routine matter for federal courts in Texas, as are the issues presented — so many ineffective-assistance-of-counsel claims, so little time. But a 2003 U.S. Supreme Court decision, Wiggins v. Smith, gives some added traction to shopworn ineffective-assistance claims in death penalty cases appealed to the 5th U.S. Circuit Court of Appeals. Recently, the 5th Circuit granted one certificate of appealability, remanded a case to the trial court for an evidentiary hearing and ordered one outright reversal of a Texas inmate’s death sentence because of Wiggins. Five criminal law experts say they believe that’s just the beginning for successful Wiggins appeals at the 5th Circuit. And the Wiggins-related decisions so far display the pitfalls for prosecutors and defense attorneys when it comes to presenting mitigation evidence in death penalty cases. Wiggins requires that trial attorneys for death penalty defendants conduct a “reasonable investigation” into mitigation evidence. The June 26, 2003, opinion seemingly changed how the 5th Circuit views ineffective-assistance claims, the experts say. “I think what we’ve got is a new atmosphere [at the 5th Circuit], especially surrounding the death penalty,” says Fred Moss, a law professor who teaches criminal law at Southern Methodist University Dedman School of Law. “The federal courts are inundated with habeas corpus writs. And it’s hard to sort the wheat from the chaff,” Moss says. “I think they’ve built up intellectual calluses on habeas corpus cases.” The decisions Wiggins gave rise to are long overdue, he says. For Douglas Alan Roberts, who was sentenced to death for kidnapping, robbing and murdering a man near San Antonio in 1996, Wiggins means he may get a shot at a new trial that he might not otherwise have had, says Andrew Hammel, a Kerrville, Texas, solo who represent Roberts. On Jan. 9, the 5th Circuit granted Roberts a certificate of appealability to pursue an ineffective assistance-claim in Roberts v. Dretke. “I personally think the Wiggins decision, as well as the Williams decision from 2000, were two very loud shots across the bow,” Hammel says. On April 18, 2000, in Williams v. Taylor, the U.S. Supreme Court found that a Virginia death row inmate’s constitutional right to effective counsel was violated. The Court ruled that the result of the sentencing phase of Terry Williams’ trial might have been different if his attorney had presented and explained mitigating evidence, including information about Williams’ abusive childhood and “borderline” mental retardation. In Wiggins and Williams, the Supreme Court reaffirms how the federal circuits should view the high court’s seminal decision in Strickland v. Washington (1984), which sets the standard for determining whether a defendant’s lawyer was ineffective, Hammel says. Strickland requires a defendant to show that his counsel’s performance was so deficient that he was not functioning as acceptable counsel under the Sixth Amendment and — but for counsel’s error — the result of the proceedings would have been different. “The message was meant for the 4th and 5th Circuits in particular, which had routinely tolerated a level of representation that would certainly not have been tolerated by many other federal circuits,” Hammel says. Jim Marcus, executive director of the Texas Defender Service in Houston, agrees. “What is remarkable about Williams and Wiggins is that neither of those cases are remarkable. In other words, the claims that prevailed in Williams and Wiggins are the type of ineffective [assistance] claims that we see fairly routinely,” says Marcus, who represents Texas death row inmates in habeas writs. “And neither Williams or Wiggins involved a change in the standard governing these claims,” Marcus says. “Instead, it was the Supreme Court merely modeling the claims and the approach. And this is the way that constitutional law is developed. “ SAME RESULT The three cases in which the 5th Circuit either issued a certificate of appealability or reversed the lower court judgment because of Wiggins involved fairly standard ineffective-assistance claims. But the circumstances surrounding all the claims differ, covering the spectrum of ineffective-assistance-of-counsel assertions found in Texas death row appeals. Guy v. Cockrell, an Aug. 13, 2003, opinion, may contain the most unusual ineffective-assistance-of-counsel claim. In that case, the 5th Circuit reversed and remanded Joe Lee Guy’s death penalty conviction to the trial court to determine whether the investigator hired by the defense to interview mitigation witnesses had a conflict of interest. The 5th Circuit noted that the investigator was named the sole beneficiary of the victim’s mother’s estate six months after the trial. The 5th Circuit found that it was difficult to tell if the investigator hindered Guy’s mitigation defense. A jury had convicted Guy in 1994 for the robbery and murder of a Plainview, Texas, grocer. And on Dec. 23, 2003, in Lewis v. Dretke, the 5th Circuit reversed a lower court ruling that Andre Anthony Lewis’ trial attorneys were not ineffective because they did not discover information from Lewis’ family members about his alleged abusive childhood. In that case, Lewis’ three sisters testified at his habeas proceeding that their father regularly beat all of them and all the children lived in constant fear of their father’s rages, according to the 5th Circuit opinion. The 5th Circuit ordered that Lewis receive a new sentencing-phase trial. In 1987, a Dallas jury had sentenced Lewis to death for murdering a Carrollton, Texas, gas station attendant during a robbery. In Roberts, decided Jan. 9, the 5th Circuit granted Douglas Alan Roberts a certificate of appealability because his trial attorney “fail[ed] to properly develop evidence of Roberts’ mental illness” and “fail[ed] to make adequate use of his court appointed psychologist,” according to the opinion. A jury had convicted Roberts in 1997 of kidnapping, robbing and murdering a man near San Antonio. Roe Wilson, chief of the post-conviction writs division for the Harris County district attorney’s office, says Wiggins has not really affected appeals filed by death row inmates convicted in Harris County. Currently, Harris County has 159 convicts on death row, the most of any county in Texas. Wilson says she believes the reason Harris County death penalty convictions may be unassailable under Wiggins is because over the past decade Harris County judges increased the qualifications for attorneys who are appointed to death penalty cases. But Phillip Wischkaemper, a Lubbock attorney who serves as the capital assistance attorney for the Texas Criminal Defense Lawyers Association, says there likely are plenty more viable Wiggins claims from Texas death row inmates, including those convicted in Harris County. “There are 450-plus guys on death row,” says Wischkaemper, who also represents Guy in his appeal. “And I feel somewhat safe saying that the majority of those didn’t have the kind of mitigation investigation that the Supreme Court envisioned in Wiggins.” Terry McEachern, the district attorney for Hale, Swisher and Castro Counties who tried and convicted Guy, did not return a call seeking comment before press time. WHOSE RESPONSIBILITY? A spokesman for the Texas office of the attorney general, which represents the state in federal court in all Wiggins appeals, says the decision does not affect the way the state handles habeas corpus writs. “Anytime the Supreme Court makes a decision there is the possibility it could affect cases in Texas,” says Jerry Strickland, an AG spokesman. “But at this point the Wiggins decision doesn’t change the way we approach the issue,” Strickland says. Some prosecutors say there is little they can do to control how defense attorneys present their cases at trial. But Wiggins may force prosecutors to do just that, says John Bradley, Williamson County’s district attorney. “What the appellate courts will end up doing is forcing the prosecutors to get into the defense attorneys’ business,” Bradley says. “What I really object to is the appellate courts making policy decisions about what is and is not the best defense in a capital murder case,” Bradley says. “And if they’re going to do that, let’s start holding the hearing on what strategy the defense lawyer is making before we even hold the trial.” Adam Seidel, a former prosecutor who tried and convicted Roberts in Kendall County, Texas, agrees that prosecutors will have to start worrying about the quality of the defense’s mitigation evidence if prosecutors want to protect a death penalty conviction. Steven Pickell, a Kerrville solo who represented Roberts at trial, did not return two calls seeking comment before press time. Prosecutors must turn over any exculpatory or mitigating evidence that they have. But Wiggins may force prosecutors to go a step further, Seidel says. Prosecutors seem to have to actively look for mitigation evidence in the event that defense counsel does not, says Seidel, who now is a criminal defense solo in Dallas. “But they do remain helpless as to whether defense counsel adequately puts that to use.” Wiggins also puts criminal defense attorneys in a Catch-22 situation, two defense attorneys say. Defense lawyers may be forced to call family members to testify about issues such as a defendant’s abusive childhood. But those same witnesses may open the door for the prosecution to ask the family members about violent tendencies the defendant may have displayed as a child and throughout his life. Unfortunately, capital murder defendants aren’t always the most cooperative clients, five defense attorneys say. Some are reluctant for their family members to be interviewed about their childhoods because of the pain it may cause. But that shouldn’t affect a lawyer’s trial strategy, says Randy Schaffer, a Houston criminal defense solo. “It’s the lawyer’s decision on how to conduct the litigation,” Schaffer says. “And I see a lot of cases where lawyers defer to clients on what questions to ask and what witnesses to call.” “And it’s totally inappropriate to do in a death penalty case where the [client] doesn’t have the knowledge to make those kind of decisions,” Schaffer says. “It’s like a patient directing a doctor on how to conduct a surgery.” David Botsford, of Austin’s Law Office of David Botsford, says Wiggins almost makes it a requirement that attorneys appointed to death penalty cases ask the trial court to pay for a mitigation expert. “The dilemma comes in if the judge denies you the dollars, you face the choice of digging into your own pocket to fulfill your duties to your client,” Botsford says. “I submit you have to dig into your own pocket. I’ve done than in court-appointed cases before. It’s never fun.”

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