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July 28, 2009

Texas to establish its first another capital defender office

As detailed in this Houston Chronicle article, which is headlined "State to handle capital appeals," Texas is reforming its process of capital defense.  Here are more details:

Texas, which executes more convicts than any other state in the nation, will open its first capital defense office next year to manage appeals for death row inmates after years of reports that appointed private attorneys repeatedly botched the job.

“The status quo has been an international embarrassment,” said state Sen. Rodney Ellis, D-Houston, who sponsored the law that created the office.  It was supported by an unusual alliance between the State Bar of Texas, the Court of Criminal Appeals and public defense advocates, who all backed it in the last legislative session.

The law was inspired by a series of stories about Texas inmates who lost crucial appeals after court-appointed attorneys missed deadlines or filed only so-called “skeletal” writs — documents with little information often copied from other cases.  It represents a significant reform for Texas, one of the only capital punishment states that lacks a public defender to oversee key death row appeals known as state writs of habeas corpus.

The office, with an annual budget of about $1 million and a staff of nine, won't open soon enough to help any of the inmates whose appellate rights were squandered recently.  “Better late than never,” said Juan Castillo, one of four death row inmates whose state appeals were never filed by the San Antonio attorney assigned to represent them.  “This is a start.  There's a lot of cases” that have been screwed up....

The Office of Capital Writs will be funded by redirecting money already in the state budget: $500,000 formerly used to pay private attorneys for appeals and $494,520 from the state's Fair Defense account, already earmarked for indigent defense.  Ultimately, its attorneys will likely handle most state appeals — about 10 a year, if the current pace of death sentences continues.

UPDATE:  Post title altered in response to comments.

July 28, 2009 at 10:45 PM | Permalink


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Obviously, $1 million will not be enough, nor will any amount. This is just the beginning of a beautiful lawyer business.

Posted by: Supremacy Claus | Jul 29, 2009 12:21:04 AM

What I don't understand, how is missing even one filing deadline not grounds for sanction? And if the convict has a legal right to effective assistance at that stage, how does such failure not irreperably prejudice the convict?

If the convict doesn't have a right to effective assistance during habeas then I don't see why any counsel should be provided.

Posted by: Soronel Haetir | Jul 29, 2009 2:31:58 AM

Does the defendant have a right to the Dream Team or to a fair hearing? Whatever the technical error, is there evidence the outcome was wrong? Because the potential number of rule infractions is infinite, the defendant needs to show an error in outcome. Procedural errors are lawyers making work for themselves by robbing the taxpayer.

Posted by: Supremacy Claus | Jul 29, 2009 6:34:33 AM

(1) Doug, good post, but the headline is somewhat misleading. Texas previously established a trial-level capital PD office for West Texas.


The importance of this office is it is a capital WRIT PD office, which had not existed previously. This is for post-trial motions in state court before the federal habeas stage.

(2) Soronel - no federal constitutional right to effective assistance at that stage. But whether there is a state-law "right" (which could only be enforced or protected by state courts) or not, there is also a cost-benefit issue going on. Counsel was already provided to the capital inmates, but on the basis of private attorney appointments. Courts benefit from appointments because they get better petitions and advocacy, issues are cleaner. The PD office saves money and hopefully results in a better quality of advocacy. Also, maybe this is controversial, but the State arguably has an interest in capital convictions that are free of legal taint. That interest is served by having competent counsel working at the state writ stage.

(3) While I'm violating my own troll-feeding policy by responding to the other comment above, petitioners whose lawyers effed up the state writ filing deadlines never get an opportunity to demonstrate any trial-level errors, whether outcome-determinative or not. The court never reaches any of the errors at trial because of the writ-stage mistake. And that often shuts the door to the federal courts.

Posted by: Texas Lawyer | Jul 29, 2009 12:32:07 PM

Same here. The lawyer is the lying nation-class troll, sucking it down into oblivion, while simultaneously being in utter failure in every self-stated goal of every law subject. The sole reason the profession persists is that it controls the three branches of government and maintains its position and rent seeking at the point of a gun.


Is there any evidence that any injustice has been done from missing a writ deadline? If there is no evidence of a harm, this remedy is more pretextual lawyer job creation. The lawyer just invented a specialized job that is unnecessary. Are the courts of Texas so wrong in their verdicts, so often, that an office with a budget of $1 million has to be set up to do only writs of habeas corpus? Where are the data showing that? Facts persuade, not personal remarks.

Torts would remedy legal malpractice. It should be tried before starting a new bureaucracy with potentially limitless budget. It will be a right soon, if the lawyer is allowed to pursue its pretextual scam. Why can't the defendants sue their public defender, and deter carelessness?

Posted by: Supremacy Claus | Jul 29, 2009 2:14:14 PM

Sorry, Claus, we forgot that we were supposed to meet whatever "gauntlet" you throw down, and convince you of the wisdom of our actions, before we do anything to make our judicial system more efficient. Please accept my apology on behalf of all rent-seeking Texas attorneys.

And, I agree, it is very wise of you to require us to convince you that procedurally defaulting a writ actually prejudices a meritorious claim with "data," even though the merits are never adjudicated because of the default.

And, you're right. A good way to avoid lawyer rent-seeking is to make use of the common law tort system. It's too bad we don't already have malpractice tort claims available to "remedy legal malpractice" in Texas. Because that certainly would have prevented multiple expensive appeals to the U.S. Supreme Court concerning Texas's death penalty system.

Posted by: Texas Lawyer | Jul 29, 2009 11:07:44 PM

Doug, your headline would have been accurate if you said it was the first capital APPELLATE public defender. The one in West Texas is for trial level representation. The locals out there call it "murder insurance" because of the high cost of prosecuting capital cases, which of course you've frequently written about.

The irony of Supremacy Claus' rantings here is that they're trying to fix the problem SC chiefly rants about - replacing hack "rent seeking" lawyers with dedicated attorneys not motivated by profit. The most likely effect of a capital writ office in the long run, or one of them, may be to expedite the execution process by reducing endless appeals often caused by crappy lawyering (or "ineffective assistance," in the parlance) performed by underpaid, poorly motivated, court-appointed counsel. That recurring fact pattern has generated NUMEROUS bench slappings of Texas courts by SCOTUS. So they're gettign rid of the "rent seeking" component, take "yes" for an answer! I often can't tell what SC is complaining about anymore and have mostly stopped trying.

Posted by: Gritsforbreakfast | Jul 30, 2009 11:54:36 AM

I think he's complaining about losing his pro se appeal.

Posted by: Mark#1 | Jul 30, 2009 12:37:44 PM

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