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| Texas death house, holding cells and death chamber, The Walls Unit, Huntsville |
In the hours before Raphael Holiday was put to death by lethal injection earlier this month, he made a final appeal to the Supreme Court. The convicted Texas murderer argued that his two court-appointed lawyers had abandoned him by not filing a last-ditch petition for clemency.
Now, another man on death row in Texas is accusing the same two lawyers of failing to provide him with effective counsel. In a petition to the Supreme Court, Robert Roberson alleges that they haven’t pursued a key legal avenue in his appeal because of a conflict of interest.
The lawyers, James Volberding and Seth Kretzner, say they’ve represented their clients effectively, and that the claims against them have been instigated by outside attorneys. “We’re practical street lawyers. We deal with reality, not the world that you wish it was,” Volberding told me. “Some other lawyers—we call them dreamy-eyed—want to pursue any conceivable option, even though it’s completely unrealistic.”
But the legal duo is facing the unusual situation of opposing court motions filed by two of their their own clients within a few weeks. Their actions have raised eyebrows in the insular world of capital punishment attorneys—and at the Supreme Court.
Being a death penalty lawyer means following complicated, technical appeals processes, often with only a vanishing chance of winning. That’s especially so in Texas, which has accounted for more than a third of all executions in the country since 1976.
In both the Holiday and Roberson cases, the question seems to focus on whether a lawyer must exhaust every possibility of avoiding an execution—or whether it’s better to be realistic about which claims are likely and which have virtually no chance of success.
Let’s start with Holiday. He was sentenced to die in 2002 for burning a house down with his 18-month-old daughter and her two half-sisters inside. His mother-in-law testified during trial that he forced her at gunpoint to spread gasoline while the kids watched. Then he lit a match.
Volberding and Kretzner represented Holiday in his federal appeal. They filed a long petition alleging mistakes in the trial. But they lost at every level, and in June, the Supreme Court declined to hear the case.
Holiday asked Volberding and Kretzner to file a clemency petition on his behalf. They declined, telling him that success was highly unlikely. Clemency requires approval from a state board as well as the governor. Only two death row inmates in the last 20 years have won clemency in Texas.
“It was our professional opinion that a clemency petition did not have a realistic chance of success and merely raised false hopes,” Volberding told me. “We hate the situation that ultimately happens, where someone is sitting there on the day of the execution waiting for a one in a million or one in a billion chance that their petition is going to work,” Kretzner added.
But federal law stipulates that attorneys appointed to represent death row clients shall represent them in “all available post-conviction proceedings.”
After Holiday took on the services of a pro bono attorney who filed a motion to have Volberding and Kretzner removed from the case (the two lawyers are being paid by the court), the lawyers soon changed their minds and filed what they admit was a hastily-written clemency petition—Volberding characterized it as “very quickly and effectively” done. The petition was denied.
Source: Fusion, Casey Tolan, December 1, 2015