In a Texas death row case in which a disbarred lawyer may have previously represented the defendant, a Hogan Lovells team has joined with local Texas counsel to try to derail an execution set for later this month.
The lawyers are seeking either commutation or, alternatively, a delay of convicted murderer TaiChin Preyor’s July 27 scheduled execution.
They have asked Republican Texas Gov. Greg Abbott for the reduced sentence or delay so they can deploy $45,000 that a federal court has awarded Preyor to pursue his clemency request and investigate allegations about his initial post-conviction counsel, Brandy Estelle.
Estelle, a court-appointed public defender, was “woefully unqualified,” and served only as a “mouthpiece” for Phillip Jefferson, the disbarred lawyer, who handled the legwork for Preyor’s appeals, according to Preyor’s application for commutation of sentence filed last week with the Texas Board of Pardon and Paroles.
Estelle also double charged the federal court and Preyor’s mother for the legal work she was having Jefferson do, according to the same application’s allegations.
“This is not just an individual plea for mercy,” said Catherine “Cate” Stetson, a member of Hogan Lovells’ global board and a co-director of its appellate practice group, who represents Preyor.
Her firm handles multiple death row cases on a pro bono basis, but “this one was to our collective sensibilities jarring,” Stetson said, given the allegations about Preyor’s prior appellate counsel.
Neither Preyor nor his present lawyers deny that he committed “a terrible act,” but “the gross infirmities in his representation during the sentencing phase and during habeas proceedings should give this Board pause,” his commutation application stated.
According to an Associated Press account, Preyor was sentenced to death in 2005 for killing 20-year-old Jami Tackett in a brutal San Antonio slashing and stabbing attack that also wounded Tackett’s boyfriend.
Estelle did not return a call for this story. Jefferson could not be reached. Estelle’s law firm’s website lists her as graduate of Loyola Law School and notes her “15 years of legal work in both public law and private practice,” citing specifically “her extensive background in real estate.’
Texas lawmakers have made efforts to reform the process for appointing lawyers to help death row defendants pursue their writs of habeas corpus—the appeals that serve as the criminal justice system’s final safety net. In habeas proceedings, a defendant’s lawyer can present new exculpatory evidence, previously untapped witnesses and indications that trial counsel failed to do their job properly.
In 1995, Texas lawmakers passed the Habeas Corpus Reform Act, a law guaranteeing Texas death row inmates “competent counsel” for their habeas appeals. Four years later they passed another law giving trial courts the authority to pick lawyers from an “approved attorneys” list drawn up by Texas’ highest court for criminal appeals.
But those reforms “were not enough to target this kind of practice,” Stetson said of the Preyor case.
According to Preyor’s application this month, Jefferson, who like Estelle is from California, had been castigated in an unrelated case by the U.S. Court of Appeals for the Ninth Circuit for having shown “a gargantuan indifference to the interests of his client,” committed “gross misconduct,” shown “chronic inattention to his client’s interests,” and been “wholly incompetent.”
Jefferson never disclosed to Preyor or his family that he was disbarred, according to Preyor’s commutation application.
For her part, Estelle never informed the court about Jefferson’s role in the case, the same application alleged.
“[I]t appears from the documents filed by Ms. Estelle that she and Mr. Jefferson conducted no investigation beyond the record as it then existed, and raised no arguments before the habeas court regarding the sentencing phase of his trial,” the application stated.
Estelle and Jefferson “overlooked” that Preyor’s trial counsel had failed to hire a mitigation specialist during a sentencing phase, and “it appears they conducted only a cursory mitigation investigation despite references in trial counsel’s files to the fact that Mr. Preyor experienced a deeply troubled childhood,” the application asserted.
The Texas governor isn’t exactly known for granting frequent commutations and pardons, Stetson noted.
“The record is not good, but we are still hopeful,” she said. “If you look at the fact pattern here and the nature of the representation, a disbarred lawyer using a California real estate lawyer [Estelle] as his beard, even if you are supportive of capital punishment, there is a baseline foundation of fairness that was not met.”