Create a Specialty Public Defender for Capital Appeals!
Ask the Calendars Committee to get HB 1676 a vote on the House floor!
There’s a growing list of innocent people who are failed by state-level appellate courts on direct appeal and who, after many years, are exonerated from death row through “habeas corpus” petitions. Why must wrongfully convicted men like Anthony Graves, Randall Dale Adams, Alfred Dwayne Brown, Ernest Willis, and Clarence Brandley (to name a few) wait a lifetime to clear their names? Because defense representation in Texas’ death penalty appeals is understaffed, over-worked, underpaid, and therefore woefully inadequate to handle our state’s capital defense system.
Bi-partisan coalition for reform
The following organizations support this proposal: Texas Defender Service, Texas Fair Defense Project, Texas Criminal Justice Coalition, Texas Appleseed, ACLU of Texas, Austin Justice Coalition, and Just Liberty.
There’s too few lawyers to defend in appellate proceedings
Despite recommendations from the State Bar of Texas to appoint two lawyers to represent defendants facing execution, the default is to state law’s allowance of just one attorney to represent indigent condemned inmates on direct appeals. These lone attorneys are pitted against prosecutors with dedicated appellate staff, contracted external assistance, and assistance from state agencies. A recent report revealed that these defense lawyers:
- failed to adequately brief legal issues,
- recycled text without updating it to reflect the current state of the law
- avoided “optional legal procedures”
- neglected to file reply briefs in 83.1% of the cases within the survey
- waived oral argument in nearly a third of all cases
- required review by the U.S. Supreme Court in 35% of the 86 cases reviewed
- billed 72.1 to 535.0 hours (and averaged 275.9) between 2009 and 2015, where other jurisdictions found attorneys spending between 500 and 1000 hours preparing a capital direct appeal
Untamed workloads overtask defense counsel
It’s telling that between 2009 and 2015, motions for an extension of time were filed in two-thirds (68.3%) of cases. With stacked trial schedules, overlapping briefing deadlines, and appointments to defend in multiple death penalty cases defense counsel struggles to provide effective representation. Defense attorneys report having to juggle numerous pending capital murder trials or being unable to appear for oral arguments in death row client appeals due to other professional obligations. They don’t have the bandwidth to sufficiently handle so many capital direct appeals.
Unchecked compensation disparities cause catastrophes
There’s no consistency in pay between counties, with some offering $150 to $200 an hour and uncapped hourly and others with flat fees and capped compensation. The latter incentivizes lawyers to wrangle a high volume of appointments while exerting few hours.
How to fix the problem
There’s a solution at the capitol at this very moment. Rep. James White (R-Woodville) filed HB 1676 creating a public defender office to handle direct capital appeals for indigent clients in Texas. The bill was passed unanimously out of the House Criminal Jurisprudence committee, and the goal now is to get it to a vote on the House floor. Let’s get this bill moving by asking representatives on the Calendars Committee to set it for a floor vote.