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September 20, 2016

"Lethally Deficient: Direct Appeals in Texas Death Penalty Cases"

Td2The title of this post is the title of this notable new lengthy report produced by the Texas Defender Service.  The start of this news release provides an overview of the report's contents:

Texas’ system of providing direct appeal representation in death penalty cases is in dire need of reform, according to a new report by Texas Defender Service.  The report, Lethally Deficient, evaluates six years of direct death penalty appeals and concludes that the current system is broken.  The Texas Legislature should, Texas Defender Service recommends, create a capital appellate defender office to handle these appeals, establish a statewide appointment system with caseload controls and uniform compensation, and require the appointment of two qualified lawyers to each death penalty direct appeal.

Lethally Deficient: Direct Appeals in Texas Death Penalty Cases is the first report to engage in an in-depth examination of direct appeals for Texas death penalty cases. Texas law requires all death sentences to be directly appealed from the trial court to the Texas Court of Criminal Appeals.  A direct appeal is based on the trial record and transcript.

“This report documents that, in case after case, most death row inmates are not well represented on direct appeal,” said Kathryn Kase, Executive Director of Texas Defender Service, a nonprofit law firm that works on capital cases and related criminal justice issues. “Texas should do what it did to address the crisis in capital habeas representation: create a public defender office that handles only direct death penalty appeals.”

TDS examined all direct appeals filed in each of the 84 death penalty cases decided by the Court of Criminal Appeals between January 1, 2009 and December 31, 2015.  The study uncovers multiple deficits in capital direct appeal representation. Lawyers submitted briefs that recycled failed legal arguments without updating to reflect current law, failed to meet — and at times, correspond with — their clients, failed to request oral argument, and avoided filing reply briefs and applications for U.S. Supreme Court review.  And while other jurisdictions reported attorneys needing between 500 and 1,000 hours to brief a capital direct appeal, defense lawyers for the cases in the TDS study billed between 72.1 to 535.0 hours for each appeal, for an average of only 275.9 hours.

In the six years – 2009 through 2015 – that these deficiencies occurred, TDS found that the CCA did not reverse a single conviction in a death penalty case on direct appeal.  The CCA affirmed convictions and death sentences in 79 cases, and reversed death sentences in just three cases.

When compared to capital litigants in other jurisdictions, Texas death penalty appellants fare far worse. Death row inmates outside Texas are 2.8 times more likely to have their cases reversed on direct appeal.  TDS reviewed 1,060 capital direct appeal decisions issued by the highest courts in the 30 other death penalty states between 2005 and 2015, and these courts collectively reversed 16.0% of all death sentences.  By contrast, the Texas Court of Criminal Appeals reversed just 5.7% of the death penalty cases heard on direct appeal between 2005 and 2015.

September 20, 2016 at 09:31 AM | Permalink

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