Austin American-Statesman

TEXAS: Study: Legal aid deficient in appeals---Report says judges fail in appointments of adequate lawyers in death penalty cases

 The state Court of Criminal Appeals is regularly failing to make sure that men and women on Texas death row get adequate lawyers to handle their appeals, which dramatically increases the chances that an innocent man or woman will be executed, according to a study released Tuesday.

 A scathing report issued by Texas Defender Service, a nonprofit group that represents capital murder defendants, found that incompetent and inexperienced lawyers, including one with a cocaine problem and another with bipolar disorder, are routinely appointed to handle the cases.

 When an appeal in state courts is mishandled, the study said, an inmate stands little chance of having his or her case fully reviewed later by a federal court. "Only in death penalty cases can prosecutors, judges, police and lawyers bury their mistakes," said Keith Hampton, an attorney with the Texas Criminal Defense Lawyers Association.

 But 2 judges on the Court of Criminal Appeals said they disagree with the findings.

 "Generally speaking, the lawyers that are appointed are very well-qualified, very capable people and do their job well," said Sharon Keller, the court's presiding judge.

 Judge Lawrence Meyers said he knows many of the lawyers appointed to the cases, "and the ones I know are all outstanding. I don't see any problems out there."

 Texas Defender Service said it reviewed legal briefs filed in almost all capital murder cases since 1995, when the Court of Criminal Appeals was given responsibility for appointing appeals lawyers.

 The review found that in 39 percent of the cases, appeals lawyers made no apparent effort to investigate the cases against their clients to determine whether the defendants were improperly convicted or possibly innocent.

 At issue is not the quality of lawyers who handle actual trials but lawyers who are appointed for appeals.

 The study included appeals in which defense lawyers fell asleep on the job, prosecutors suppressed evidence, witnesses lied or new evidence came to light proving that someone else committed the crime.

 Several innocent defendants in Texas were freed after vigorous work by appeals lawyers unearthed proof that they had been wrongly convicted.

 But that check on the integrity of capital cases is now often absent because appeals lawyers are not doing the job, said Jim Marcus, executive director of Texas Defender Service.

 "We cannot ensure that our system is reliable and fair," Marcus said. "This is happening over and over and over again."

 Arguments must be raised in state courts before an inmate can pursue the same claims in federal courts.

 If the state appeals lawyer files only a cursory brief, the inmate all but loses any chance of a federal court overturning the conviction.

 State Rep. Pete Gallego, D-Alpine, a former prosecutor and death penalty supporter, agreed with the findings and said he will try to push legislation in the next session setting minium qualifications for appellate lawyers.

 "Lives are at stake, literally," Gallego said. "I still think of myself as a prosecutor at heart, but the system has to work. Things are happening out there that shouldn't be happening."

 Under a 1995 law that Gallego sponsored, the Court of Criminal Appeals maintains a master list of lawyers who can be appointed to death row appeals.

 Marcus said his group's review found numerous lawyers with little experience or records of disciplinary problems with the State Bar. One of the lawyers on the list is dead.

 "We'll take the name of the lawyer who died off the list," Keller said.

 An indication of the study's validity might come as early as tonight, Marcus said.

 Leonard Rojas, a 51-year-old carpenter convicted of 2 1994 murders, is set to be the 32nd person executed in Texas this year.

 The lawyer appointed to handle Rojas' appeal has admitted he bungled the case.

 In a sworn affidavit, David Chapman said he was under three separate probations from the State Bar while representing Rojas, all for mishandling other clients because he was on medication for bipolar disorder and "my mental conditions affected my legal work to some degree."

 Chapman concedes that he did almost no work investigating the case against Rojas, barely spoke with his client and missed the deadline to appeal the case in federal court.

 Tuesday, the Court of Criminal Appeals rejected a request by Texas Defender Service lawyers to delay Rojas' execution until the inmate can receive a meaningful appellate review of his case.

 (source: )

Capital Defendants Often Hurt by Attorneys' Poor Work, Study Says

By Lee Hockstader

December 4, 2002

 AUSTIN, - Texas is scheduled to execute a convicted killer today whose lawyer in a crucial state appeals process was suffering from bipolar disorder, had been disciplined three times by the state bar, failed to meet a critical deadline for a federal court review of the case and acknowledged that he did almost no investigative legwork on behalf of his client.

 The case of the condemned man, Leonard Rojas, is highlighted in a new report by a group representing Texas death row convicts. The study, by the Texas Defender Service, concludes that capital defendants in the state have more than a 1 in 3 chance of being executed without benefit of competent appellate attorneys, who would present legitimate constitutional arguments or claims of innocence or unfairness.

 The report, "Lethal Indifference," is based on a review of nearly all the 263 critical post-conviction appeals filed since the Texas Legislature established the current process, in 1995. The appeals, known as habeas petitions, offer the only chance for convicts' attorneys to reinvestigate their cases and present new evidence beyond the trial record.

 According to the report, the lawyers assigned to represent death row inmates often are so inexperienced, inept or distracted that they make little or no effort on their clients' behalf. In 39 percent of the cases reviewed, the lawyers presented no new evidence in their appellate petitions -- the equivalent of filing a blank piece of paper, said Jim Marcus, executive director of the Texas Defender Service.

 "This is happening over and over and over again," Marcus said. "If Texas doesn't initiate a reform of the system, we will continue to run the very serious risk of executing innocent people."

 In response to the report, Sharon Keller, presiding judge of the state's Court of Criminal Appeals, said Monday that thin appeals petitions meant there were no issues to raise on behalf of some defendants.

 But Marcus and other advocates for capital defendants rejected the judge's remarks, insisting that competent and experienced attorneys can always find avenues for appeal in death penalty cases.

 Since the U.S. Supreme Court reinstated the death penalty in 1976, Texas has executed far more convicts than any other state. This year, 31 people have been executed in Texas's death chamber -- more than in the other states combined.

 That has made the state's capital punishment system subject to criticism not only from opponents of the death penalty, but also from death penalty advocates who believe defendants too often do not receive adequate representation in Texas.

 Pete Gallego, a Democratic state representative who favors the death penalty, said today he plans to propose legislation next year setting standards for lawyers assigned to represent death row inmates.

 "When the law says you're entitled to an attorney, it doesn't mean you're entitled to an attorney who sleeps or an attorney who doesn't do his job," said Gallego, who represents a district along the Mexican border. "It's important we understand our system seeks justice and not revenge."

 Although the state legislature has guaranteed competent appellate counsel for death row convicts, the Court of Criminal Appeals has ruled that there is no recourse for inmates who are represented incompetently.

 The court has taken the position that inmates' rights are protected so long as they are assigned a lawyer from a court-approved list.

 According to the Texas Defender Service, however, the list currently includes three prosecutors, an employee of the Texas Department of Criminal Justice, several lawyers who have been disciplined by the state bar and one lawyer who is dead.

 Opponents of the death penalty said that judges on the Court of Criminal Appeals, and other courts in Texas, are elected and mindful of the overwhelming public support for the death penalty in the state. Nonetheless, in a poll conducted by the E. W. Scripps Data Center last summer, 66 percent of Texans said they believed the state had executed an innocent person.

 The Texas Defender Service is assisting in 11th-hour appeals on behalf of Rojas, the convict scheduled to face execution by injection Wednesday.

 He was convicted in the 1994 murders of his common-law wife, JoAnn Reed, and his brother, David Rojas. According to evidence at trial, Rojas shot Reed between the eyes when she told him that she was leaving him for another man, and then he shot his brother.

 He turned himself in to Dallas County authorities the next day.

 ï¿½ 2002 The Washington Post Company