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Capital Punishment in the United States Explained

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In our Explainer series, Fair Punishment Project lawyers help unpackage some of the most complicated issues in the criminal justice system. We break down the problems behind the headlines - like bail, civil asset forfeiture, or the Brady doctrine - so that everyone can understand them. Wherever possible, we try to utilize the stories of those affected by the criminal justice system to show how these laws and principles should work, and how they often fail. We will update our Explainers monthly to keep them current. Read our updated explainer here.
To beat the clock on the expiration of its lethal injection drug supply, this past April, Arkansas tried to execute 8 men over 1 days. The stories told in frantic legal filings and clemency petitions revealed a deeply disturbing picture. Ledell Lee may have had an intellectual disability that rendered him constitutionally ineligible for the death penalty, but he had a spate of bad lawyers who failed to timely present evidence of this claim -…

Report: Texas death penalty appeals lawyers overworked, sometimes sloppy

The Huntsville Unit, where Texas carries out its executions.
The Huntsville Unit, where Texas carries out its executions.
Texas is paying four times more for its execution drugs from a new supplier, putting it in line with a local consumer rate but well below the cost in at least one other death penalty state. Documents obtained by The Associated Press show the state paid $13,500 for its most recent batch of pentobarbital at a cost of $1,500 per vial. This compares to $350 per dose paid last year to a previous supplier that cut ties after backlash from death penalty opponents.

AUSTIN — Texas’ appeals system for indigent convicts facing the death penalty suffers from poor representation, plagiarized boilerplate legal arguments and other flaws that could result in innocent people being executed, according to a scathing new report by a prominent lawyers group.

The report by the nonprofit Texas Defender Service highlights cases in which attorneys never visited their condemned clients in prison, missed filing deadlines and even missed court hearings because they were busy on other cases.

The group, which has a reputation for challenging Texas’ frequent use of the death penalty, called the legal deficiencies “multiple and severe.”

“Because Texas uses the death penalty so much, that makes this report extra ugly,” said Kathryn Kase, executive director of the group, which was created in 1995 to improve Texas’ justice system and the quality of legal representation afforded to convicts facing the death penalty. “These findings are about as bad as you can get.”

The report is focused on direct appeals, those started immediately after a conviction, in which trial errors and other issues can be legally vetted before an execution occurs. Those can include complaints of racial bias, ineffective counsel and other legal issues.

Condemned Texans who cannot afford to pay for their own lawyers — a majority on death row — typically get attorneys appointed by local judges, who generally award those cases to friends or lawyers willing to take on those appeals, the report said.

It recommends that Texas create a state office to oversee death-penalty direct appeals, to appoint two lawyers to each direct appeal instead of one, and to reform the system to provide minimum standards and better compensation for lawyers in some parts of the state to guard against ineffective counsel.

With public support for the death penalty in Texas waning, and as life without parole has become a more popular alternative, the group’s findings almost assure that the oft-criticized appeals system in capital cases will be a topic of debate when the Legislature convenes in January.

A growing chorus of critics in recent years has warned that, absent reforms, Texas’ current system is likely to face increasing scrutiny by appeals courts.

Patrick McCann, a Houston defense lawyer with expertise in capital appeals, characterized the report’s findings as horrible, astounding and disheartening.

“This report is a very sad commentary on how the system runs and whether or not it should be revamped or scrapped,” he said. “There’s nowhere to go from here but up.”

The report, “Lethally Deficient,” was set for release early today. An advance copy obtained Monday showed the group reviewed 84 death penalty appeals decided by the Texas Court of Criminal Appeals between January 2009 and December 2015.

Of those, Kase said, convictions were overturned in only three cases.

The report targets Texas’ practices for selecting direct-appeal attorneys for its harshest criticism. While death-penalty trials require two attorneys be appointed to each case, direct-appeals appointments get only one.

“This leaves the defense short-handed and runs counter to the recommendations from the State Bar of Texas and the American Bar Association that two lawyers represent a defendant through a death-penalty case,” the report states. Two-thirds of the cases in the study sample were handled by solo practitioners, who “may lack ready access to direct supervision, consultation or support staff.”

The report also contends that low pay rates in some rural counties could lead to ineffective or sloppy representation.

“Some lawyers who handled appeals in our survey had a capital and noncapital workload during the 2014 fiscal year that equaled the recommended workload for three or more lawyers,” the report states.

Additionally, the report’s authors said, a lack of direct supervision led to instances in which appointed lawyers copied text in their filings directly from other appeals.

Lawyers in other states have been sanctioned for copying and pasting such wording in filings, but none in Texas has been penalized, the report notes. In one example cited by the report, a lawyer copied a trial motion “without analyzing the trial court’s decision or making her own argument in support of the client’s appeal.”

The report also stated that lawyers in 24 cases did not list any time in billing records dedicated to communicating with their clients. Two defendants wrote to the Texas Court of Criminal Appeals to report that they had not heard from their lawyer; three defendants wrote that their appellate lawyer had filed briefs without consulting them.

Brian Stull, a North Carolina-based senior staff attorney with the Capital Punishment Project of the American Civil Liberties Union who has handled Texas death penalty cases, said the report highlights serious issues that need to be addressed.

“The direct appeal is where important issues are reviewed in death-penalty cases,” he said. “The Texas system has major problems.”

- Download the full Texas Defender Service report (pdf): "Lethally Deficient: Direct Appeals in Death Penalty Cases"

Source: Houston Chronicle, Mike Ward, Austin Bureau,September 20, 2016

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