Texas Faulted in Death Row Report

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

By Lee Hockstader

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