We've been talking about the crisis in capital habeas representation for some time -- opening and then losing the Resource Centers, watching the demise of the writ of habeas corpus through the decisions of the Supreme Court, and then through the legislative branch with the severe limits of the Anti-Terrorist and Effective Death Penalty Act of 1996.
In mid-November 1996, the Texas Court of Criminal Appeals appointed some 50 attorneys, whose names were taken from the list of board-certified criminal lawyers, to handle the state habeas petitions of the same number of folk now sitting on death row in Texas. It does not appear that any of these lawyers signed on for the appointment -- or gave any indication of competence in this highly specialized area of law -- and many have responded that they feel ill-equipped to handle such cases. There are a few more wrinkles as well.
On September 1, 1995, Section 11.01 of the Texas Code of Criminal Procedure took effect. The statute imposes rigid time limits on the filing of the state habeas petition. The outside time limit is 180 days from affirmance of the direct appeal. That means things will move very fast. Complicating matters -- while Texas does not appear to be an "opt in" state (so far, Tennessee, Florida and even California have flunked the opt-in test; no jurisdiction has passed) -- there are the new time periods for filing for federal habeas relief.
In adopting the new Texas statute, the legislature also directed the appointment -- and payment -- of counsel for habeas proceedings. After a number of lawyers were appointed, the legislature reduced the funding; then the court imposed a fee cap of $7,500 and an investigative cap of $2,500. Ultimately, the court advised the bar that it would not adhere to the arbitrary cap it earlier imposed, and would pay reasonable fees at $100 per hour.
There's a silver lining in this cloud. Our affiliate, the Texas Association of Criminal Defense Lawyers, responded quickly and advised the court of it's availability to provide training and to assist in the recruitment of qualified lawyers. At the request of TCDLA President David Botsford, and with the quick response of members of our Executive Committee, the Death Penalty Committee co-chairs, and staffers Renée McDonald and Paul Petterson, NACDL has joined TCDLA in offering to assist with recruitment and essential training. Our letter to the Texas Court of Criminal Appeals follows:
Honorable Michael McCormick
Presiding Judge
Court of Criminal Appeals
P.O. Box 12308
Capital Station
Austin, Texas 78701
Dear Judge McCormick:
I write on behalf of the National Association of Criminal Defense Lawyers (NACDL) to join in the concerns expressed by David Botsford, President of the Texas Criminal Defense Lawyers Association (TCDLA), over the crisis in capital representation that has evolved in Texas. NACDL, with about 9,000 members and 78 state and local affiliated criminal defense attorney organizations, is gravely concerned both with the provision of representation for condemned inmates and with the conscription of lawyers ill-prepared to handle these cases. We firmly endorse a collaborative effort between the Court and the Bar to ensure that lawyers able to handle these complex cases are recruited in a fair and timely manner and are properly trained to handle the demanding and complex task of death row representation.
NACDL is committed to work in partnership with the Court and TCDLA to find solutions to the current crisis (which is mirrored -- on a smaller scale -- in many other jurisdictions). As Mr. Botsford's letter indicates, NACDL has pledged its full support toward providing outstanding volunteer speakers, specifically versed in death penalty procedures, to train those Texas attorneys handling capital post-conviction cases.
First, as we see it, adequate training will create a win-win situation for all those concerned -- the Court will help guarantee that the claims being brought are both legally sound and skillfully presented; and clients will be afforded representatives that have been trained by some of the most able minds in the field. A secondary result of training is that it may ultimately solve the current problem of representation by providing an incentive to innumerable attorneys who are interested in handling death penalty cases, but currently feel ill-prepared for the challenge. We urge the Court to endorse this intensive training program -- and to strongly encourage involvement by recently- assigned counsel, perhaps by including attendance as a fully (or partially) compensable activity.
Second, we believe that a critical aspect of any program seeking to ensure adequate representation of capital defendants is the assurance that each case will be staffed by two lawyers. Death penalty cases are unique in their tendency to drain the resources of a single practitioner, and in the intense levels of psychological stress they engender. Moreover, many of those willing to assist on a case lack the expertise to handle one alone. Working with a more experienced lawyer will vouchsafe the client's interest and will help young lawyers build an expertise in capital post-conviction representation. By assigning co-counsel on each case, you ensure that the quality of the representation is maintained without any single practitioner suffering unduly for his or her contribution. Along these lines, we understand that an arbitrary fee cap will no longer apply in Texas. We applaud the Court for recognizing that arbitrary limits on compensation are antithetical to quality representation, and should be scrupulously avoided.
Many inmates sit on Texas' death row without access to post-conviction counsel. In light of new state and federal habeas provisions, a distinct possibility exists that many of these people will be executed with absolutely no federal review of their cases. Whatever one's ultimate moral convictions may be with regard to capital sentencing, this cannot be a right result. It is elemental that the provision of competent counsel is a minimal safeguard that states must provide before executing their citizens.
As you probably know, NACDL, as well as the American Bar Association and the National Legal Aid & Defender Association, believe that an effective system for representing death row inmates in these highly specialized cases is best served by voluntary participation of the private bar. Notwithstanding that, we offer our assistance to the Court and to TCDLA to work together in a timely manner to solve the crisis in legal representation. In capital cases, fundamental fairness requires that this precious right of representation, and our humanity as a civilized society demands no less.
Sincerely,
Judy Clarke
President, NACDL
The crisis in Texas is a reminder of the dire need for qualified counsel to take capital habeas cases. There are over 3,000 folks on the death rows of this country, 478 of them in Texas. Many hundreds of our condemned citizens have no lawyers, and many hundreds of them face elimination of federal their death sentences in April 1997. We don't have the Resource Centers anymore. These folks must count on those of us who can to volunteer.
National Association of Criminal Defense Lawyers (NACDL)