Thank you for sharing!

Your article was successfully shared with the contacts you provided.
When Morris Moon and Jim Marcus present oral arguments today before the 5th U.S. Circuit Court of Appeals at a potentially precedent-setting hearing in a death row case, the defense attorneys intend to raise a number of thorny issues. But the core underlying issue raised with Yokamon Laneal Hearn, Appellant v. Doug Dretke, et al. is simple: Who’s supposed to pay for legal battles of the indigent, mentally retarded death row inmates, who concluded their habeas proceedings before 2002, when the U.S. Supreme Court in Atkins v. Virginia barred their executions? (Dretke is the director of the Texas Department of Criminal Justice’s institutional division.) Moon and Marcus, both staff attorneys with the Texas Defender Service in Houston, say advocacy for condemned, mentally retarded inmates who exhausted their state and federal habeas proceedings before Atkins is a laborious and expensive task. That group of indigent inmates, the TDS lawyers say, never have been able to raise Atkins claims because the precedent didn’t exist when the state was willing to pay for their defense. And the state isn’t willing to pay anymore, even though the Supreme Court intended for Atkins to stop all executions of the mentally retarded. Under the death row indigent defense system, revamped by the Texas Legislature in 1995, a trial judge can pay out of state coffers as much as $25,000 in attorney fees and expenses for a court-appointed lawyer to work on state habeas proceedings in a capital case. At the federal level, that goes up to as much as $35,000. But Marcus estimates that it could easily cost as much as $25,000 for each of the mentally retarded death row inmates to pursue a reprieve from death in a successive habeas proceeding with an Atkins-based argument. If that additional money is not spent, however, Moon, Marcus, three other defense lawyers, a professor and a state legislator agree that Texas may be in danger of violating Atkins and executing indigent, mentally retarded inmates — precisely because nobody foots the bill for further proceedings based on Atkins. Shannon Edmonds, a staff attorney for governmental relations at the Texas District and County Attorneys Association in Austin, says he is not close-minded about finding a way to prevent Texas from unwittingly executing indigent, mentally retarded offenders. Edmonds says he would have to review any funding proposal for successive habeas proceedings related to Atkins. But he says his organization may ultimately approve of the state providing additional funding for lawyers appointed to indigent death row inmates to pursue Atkins claims. Not surprisingly, lawyers from the Texas Office of the Attorney General who are opposing Hearn’s appeal disagree. They argue that the state is not at risk of violating Atkins and that indigent death row inmates in Hearn’s situation already have received sufficient funds from the state for their defense lawyers in habeas proceedings. Moon and Marcus argue that, under the current state law, indigent, retarded death row inmates whose habeas proceedings concluded before Atkins have no state- or federally supplied resources available to them to hire counsel to represent them in a post- Atkins habeas proceeding. Therefore, Moon argues, even if an appellate lawyer could marshal the evidence to persuade a court to halt an indigent, mentally retarded inmate’s execution, that attorney would have no way of getting paid, other than through charitable funds, which, Marcus notes, are not always available. Under the current Texas Department of Criminal Justice policies, there is no immediate way to tally the number of indigent, mentally retarded death-row inmates who concluded their habeas proceedings before Atkins, because, according to TDCJ spokeswoman Michelle Lyons, the state agency does not does not systematically test the IQs of death row inmates. “Clearly, Mr. Hearn is not capable of representing himself in such proceedings,” defense lawyer Moon writes about his client in a post-stay brief, filed with the 5th Circuit earlier this year. GETTING THE MESSAGE? In response to Moon’s appeal of the U.S. District Court for the Northern District of Texas’ treatment of a Motion for Appointment of Counsel and Stay of Execution, the 5th Circuit stayed Hearn’s March 4 execution. More recently, the 5th Circuit agreed to hear 30 minutes of oral arguments from Moon and his opposing counsel from the Texas OAG’s appellate staff about the question of funding Atkins appeals. Jerry Strickland, a spokesman for the Texas OAG, said the staff lawyers handling Hearn would not comment on a pending case. But in a post-reply brief to the 5th Circuit, assistant Texas attorney general Margaret Schmucker argues that the state has properly established procedures to enforce the constitutional prohibition on executing indigent, mentally retarded offenders. “Hearn’s argument is disingenuous at best,” Schmucker writes. She contends that in a July 2002 decision by the Texas Court of Criminal Appeals ( Ex parte Briseno), the judges established that the state’s pre-existing procedural framework “can and does adequately protect the rights of petitioners like Hearn even absent legislative guidance, and will continue to do so until the Texas Legislature exercises its authority to amend them [the current laws].” In Briseno, the CCA ruled that the burden of proof was on an applicant making a claim of mental retardation. To accept that Hearn is entitled to appointment of new counsel, Schmucker argues in the post-reply brief to the 5th Circuit, “would be to signal tacit approval of endless motions for the preparation of endless successive petitions.” For some observers, however, the 5th Circuit’s decision to hear oral arguments in Hearn indicates that Texas soon may be getting a message that it is not following the U.S. Supreme Court’s orders in Atkins. “For them to take the case sends a signal that we have to get our act together,” Jeremy Warren, a spokesman for Sen. Rodney Ellis, D-Houston, says about the 5th Circuit’s agreement to hear oral arguments in Hearn. In the 78th Texas legislative regular session, Ellis introduced a bill, S.B. 163, which subsequently died in the Senate Committee on Jurisprudence, to set up procedures for determining Atkins claims. “We need to have procedures in place to be in compliance with the law of the land. If we are not violating the letter of the law, then we are clearly violating the spirit of it,” Warren says. In Atkins, the U.S. Supreme Court states that “the Constitution places a substantive restriction of the State’s power to take the life of a mentally retarded offender.” When it agreed to hear oral arguments in Hearn, the 5th Circuit asked the OAG and Moon to file supplemental briefs by May 10 to address a number of issues, including whether Hearn is required “to make a showing of mental retardation in order to be entitled to counsel to pursue an Atkins claim.” “Except for the very recent efforts by undersigned pro bono counsel to gather school and other records,” Moon wrote in his brief, “Mr. Hearn has not had any legal assistance with the investigation and development of a claim that he is mentally retarded and thereby ineligible for the death penalty.” In 1998, jurors sentenced Hearn, who was 20 years old at the time, to death for the carjacking and killing of a young Plano, Texas, stockbroker. He denied any wrongdoing. At the trial, witnesses testified that Hearn waved a newspaper clipping about the murder victim, Frank Meziere, and was pleased to have made headlines for killing the 23-year-old. Dallas police had discovered Meziere’s body in an east Oak Cliff, Texas, field. He had been shot 10 times in the head. In his brief filed with the 5th Circuit, Moon includes an affidavit he asked Jan Hemphill to submit. Hemphill is a Dallas solo practitioner and TDS board member. She was appointed by the 282nd District Court of Dallas and later by the U.S. District Court for the Northern District of Texas to represent Hearn in habeas proceedings. In that affidavit, Hemphill states that she met with the death row inmate “only once for approximately an hour.” She wrote that she noted at the time of that interview that Hearn was “baby faced … not very intelligent — maybe below normal.” She states in the affidavit that, “At the time, I did not consider mental retardation one way or the other.” According to Moon’s brief and to what Marcus says he learned by reviewing Hemphill’s files on the Hearn case, Marcus found that Hemphill — who did not return three telephone calls seeking comment before press time — did not take steps that would be necessary for an Atkins claim. However, at the time Hemphill represented Hearn in habeas proceedings, the U.S. Supreme Court had not issued its Atkins ruling, and so she wasn’t required to examine whether he was mentally retarded. Therefore, according to the brief Moon filed with 5th Circuit, Hemphill did not conduct a social history investigation, did not obtain Hearn’s school records, and did not seek assistance from a mental retardation expert, all of which an Atkins-related claim now would require. In a letter dated Sept. 23, 2003, after her last unsuccessful attempt to appeal his execution to the U.S. Supreme Court, Hemphill wrote in a letter to Hearn: “For all practical purposes, this is the last service I can give you as my client … the state may ask that an execution date be set for you. I suggest you talk to your family about that.” With Hearn’s execution date looming, the death row inmate’s family contacted TDS for assistance, Moon says. Restrained by limited resources and time, Moon says, TDS was able to conduct only an initial investigation into Hearn’s mental abilities. But TDS, Moon says, found enough evidence to establish that Hearn could be mentally retarded. For example, the death row inmate failed first grade, and by ninth grade had failed seven out of 11 classes. There are no Texas laws — only case law — that give guidance to criminal courts about how to make a determination of mental retardation. Mary Alice Conroy, the director of the Psychological Services Center at Sam Houston State University, says even when tests are administered the results can be debatable. Some of those tests to determine whether someone has impaired adaptive behavior skills, a sign of mental retardation, are mind-bogglingly irrelevant, she says, when juxtaposed with the death row scenarios. For example, one question on such a test asks if the examined subject serves food or drink when a guest comes to visit, Conroy says. TDCAA’s Edmonds, who represents prosecutors in Austin, agrees that identifying the mentally retarded on death row is tricky. “Part of the problem is that the medical community is so subjective in determining mental retardation,” Edmonds says. EXPENSIVE DECISION Sydney Young, a partner in Paris, Texas’ Ellis, Young & Tidwell, knows firsthand about the lack of funding for Atkins claims for indigent, mentally retarded death row inmates who have otherwise exhausted their habeas proceedings. Young represents Robert Charles Ladd, a death row inmate who was scheduled for execution before the 5th Circuit ordered a stay hours before he was to die in April 2003. To get the stay, Young presented the court with juvenile records showing Ladd had an IQ score of 67. (In Briseno, The Texas Criminal Court of Appeals cited a statistically significant IQ score below 70 as a possible indication of mental retardation.) Ladd was convicted for the 1996 capital murder of a Tyler, Texas, woman who was beaten to death and whose body was set on fire. Young says Ladd denied the allegations at trial and throughout his direct appeals. Young says she raised the Atkins claims as quickly as possible after the Supreme Court’s ruling and did so on her own dime. The Texas Court of Criminal Appeals had rejected Ladd’s mental retardation claim before the 5th Circuit issued its stay. Since she was no longer receiving funds from the federal or state courts, Young says she spent at least $5,000 of her own money. She has subsequently decided not to take death row appeal cases and works primarily in real estate law. “It comes to a point that you have to decide, I’m here to make a living, so I had to get out of that line of work,” Young says. Young says Ladd’s case is now pending in federal court. Moon worries that because no one is willing to pick up the tab for those lawyers, like Young, working on post- Atkins habeas proceedings and because charitable organizations such as the TDS only have enough resources to handle a handful of cases, the representation of post- Atkins appeals for indigent death row inmates will be arbitrary. “For me, that’s what’s so troubling,” Moon says. “It’s completely random now who gets counsel on this.”

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]

Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.