Is it appropriate for condemned's lawyers to give up capital fight at 11th hour?

The question in the title of this post is prompted by this extended Dallas Morning News article headlined "Condemned man’s lawyers stop helping, cite ‘false hope’." Here is the start and end of the story involving a murderer scheduled to be executed today in Texas:

From his cell on death row, Raphael Holiday drafted letter after desperate letter to lawyers who represent the condemned. He begged for their help to plead for mercy from Gov. Greg Abbott, to try any last-ditch legal maneuvers that might stave off his impending execution.

Holiday’s appointed lawyers had told him that fighting to stop his punishment was futile, and they wouldn’t do it. The 36-year-old thought he’d be left to walk to the death chamber with no lawyer at his side.

Less than a month before his execution — scheduled for Wednesday — Holiday secured help. Austin attorney Gretchen Sween agreed to ask the court to find new lawyers willing to try to keep him from dying. But Holiday’s federally appointed lawyers — the ones who said they would do no more to help him — are opposing their client’s attempts to replace them.

Now, just hours before he is set to face lethal injection for burning to death three children, including his own daughter, Holiday is awaiting word from the U.S. Supreme Court on his latest request for help.

Lawyers James “Wes” Volberding and Seth Kretzer said they worked diligently to find new evidence on which to base additional appeals for Holiday, but that none exists. Seeking clemency from Abbott, a staunch death penalty supporter, would be pointless, they say. The two contend they are exercising professional judgment and doing what’s best for their client.

“We decided that it was inappropriate to file [a petition for clemency] and give false hope to a poor man on death row expecting clemency that we knew was never going to come,” Volberding said in a telephone interview.

But others say the law under which death row lawyers are appointed doesn’t allow that kind of discretion. It requires attorneys to make every possible effort to save a client’s life, if that’s what the inmate wants. “This seems unconscionable,” said Stephen Bright, president and senior counsel of the Southern Center for Human Rights and a teacher at Yale Law School. “Lawyers are often in a position of representing people for whom the legal issues are not particularly strong, but nevertheless they have a duty to make every legal argument they can.”

So far, appeals courts have sided with Volberding and Kretzer. Last Thursday, the 5th U.S. Circuit Court of Appeals denied a motion to have them replaced. On Monday, Sween appealed to the Supreme Court.

Holiday was convicted of intentionally setting fire to his wife’s home near College Station in September 2000, killing her three little girls. He forced the children’s grandmother to douse the home in gasoline. After igniting the fumes, Holiday watched from outside as flames engulfed the couch where authorities later found the corpses of 7-year-old Tierra Lynch, 5-year-old Jasmine DuPaul and 1-year-old Justice Holiday huddled together. Volberding and Kretzer were appointed in February 2011 to represent Holiday in his federal appeals. They filed a 286-page petition in federal court, alleging dozens of mistakes in Holiday’s case, ranging from assertions that he was intellectually disabled to charges that clemency is so rarely granted in Texas that the process has become meaningless.... In decades of practicing, Bright said he had never seen a case like Holiday’s in which appointed lawyers so vociferously fought to keep a death row inmate from retaining a different attorney. In some cases, he said, new lawyers have discovered evidence others overlooked pointing to an inmate’s innocence or showing people’s intellectual disabilities made them incompetent for execution. “Most people don’t get executed for crimes they committed,” Bright said. “They get executed for mistakes their lawyers made.”