Seth Kretzer

The U.S. Court of Appeals for the Fifth Circuit has chastised two Texas attorneys in connection with a last-minute effort to stay the execution of a death row client, though it stopped short of sanctioning them.

Seth Kretzer and Carlo D’Angelo represented Rosendo Rodriguez III, who was convicted of capital murder and sentenced to death in 2009 for the murder of Summer Baldwin, a pregnant prostitute he killed and stuffed in a suitcase.

After years of unsuccessful appeals, the attorneys filed another writ of habeas corpus a week ahead of Rodriguez’s March 27 execution date, alleging they found newly discovered evidence that questioned the credibility of Lubbock County Medical Examiner Dr. Sridhar Natarajan, who performed the autopsy on Baldwin’s body.

The writ alleged that the lawyers had become aware on Feb. 16 of a 2015 wrongful termination suit filed against Natarajan by Dr. Luisa Florez, who claimed that Natarajan was not performing his own autopsies but was delegating those duties to technicians who were not trained doctors. The writ also alleged that Natarajan and Lubbock County settled that lawsuit, and paid Florez $230,000, on Nov. 7, 2017.

The Fifth Circuit denied the writ, and Rodriguez was executed as scheduled March 27. Two days day later, according to the decision, the Fifth Circuit issued a show cause order against Kretzer and D’Angelo, directing them to explain why they shouldn’t be sanctioned for filing the successive writ.

The Fifth Circuit asked the attorneys to explain two things: When did they first became aware of the 2015 lawsuit that Dr. Florez settled in 2017, and why their writ did not mention the Feb. 26 eyewitness affidavit, filed by prosecutors in Rodriguez’s criminal matter, of former Lubbock County homicide investigator Garland Timms, who swore he personally witnessed the autopsy of Baldwin performed by Natarajan.

In their response, according to the court, the attorneys explained they knew nothing about the Florez suit until February 2018, because the case was only disclosed in a handful of Lubbock media outlets.

As for Timms’ affidavit, which was created 12 years after the autopsy occurred, they noted they had no opportunity to cross-examine Timms about his statement.

Those answers did not completely satisfy the Fifth Circuit panel, but the court ultimately decided against sanctioning the attorneys.

“As to the first question, counsel claimed their client, now executed, informed them about the lawsuit filed by Dr. Florez in February 2018, which precipitated their filings,” the Fifth Circuit panel wrote in per curiam opinion. “Counsel nevertheless failed directly to answer the second question, and instead asserted unpersuasive, post-hoc arguments as to why this court should have discredited the affidavit.”

“After reviewing counsels’ submissions carefully, we do not impose sanctions, but we chastise habeas counsel for failing to even acknowledge, much less attempt, to rebut an affidavit timely offered by the state that on its face contradicted the factual basis for the last minute successive petition,” the court wrote.

“This court takes very seriously its duty to review all petitions on behalf of petitioners facing execution. Our task is made all the more difficult when counsel, having already pressed against an impending execution date, simply ignore the facts brought to bear by the state that undermine their newly discovered theories,” the court wrote. “There is no excuse for such delays.”

“This bespeaks lack of candor to the court and arguably lack of a good-faith basis for the positions they espoused,” the court concluded. “However, attorneys Seth Kretzer and Carlo D’Angelo are admonished that their pleadings and filings in future cases will be scrutinized for accuracy, completeness and compliance with Rule 11,” which allows courts to sanction attorney for filing pleadings that have no evidentiary support.

The panel that admonished the attorneys consisted of Fifth Circuit Judges Edith Jones and Jerry Smith. Judge James Dennis also sat on the panel but declined to participate in the lawyers’ admonishment.

Kretzer, a Houston attorney who frequently litigates criminal appeals before the Fifth Circuit, said he was happy to answer the Fifth Circuit’s questions and welcomes their scrutiny.

“Obviously, we have nothing but the greatest respect and deference for all of the judges on the Fifth Circuit,’’ Kretzer said.

“I welcome any scrutinization of my work for completeness and accuracy,” added Kretzer, noting that he and his co-counsel hired Thomas C. Wright, a Houston attorney who defends attorneys in professional responsibility cases, to answer the Fifth Circuit show cause order.

“I hired an outside counsel to check our work. If I felt I had done anything wrong, I would have said so,’’ Kretzer said.

D’Angelo, a Tyler attorney, and Wright, both did not return calls for comment.