Skip to main content

Texas: Surviving bad lawyers just got tougher for death row inmates

Texas' death row, Polunsky Unit, Livingston
Texas' death row, Polunsky Unit, Livingston
For inmates on death row, having a bad lawyer just got deadlier.

In a ruling Monday against a Texas death row inmate who claimed his lawyer failed to argue his case adequately, the Supreme Court ruled that federal courts could not review prisoners' claims that their state appeals lawyers were ineffective, resolving an issue that had split courts across the country.

The decision makes it harder for death row inmates who had poor legal representation to make that part of their appeals, a particular issue for poor inmates who likely have court-appointed lawyers in the early stages of their cases.

"It does perpetuate a system of inequality," said Sean O'Brien, a law professor at the University of Missouri-Kansas City School of Law who has argued several capital punishment cases and served as the director of many of the school's criminal defense law clinics. "It gives the state a reward for giving prisoners incompetent lawyers in state post-conviction.... That's the net effect of this."

In 2008, Erick Davila was convicted of fatally shooting a 5-year-old girl and her grandmother. Davila argued that he had meant to shoot a rival gang member - the girl's father. The fact that he had not meant to kill more than 1 person should have made him ineligible for a capital murder verdict and the death penalty. But the judge gave the trial jury incorrect instructions about Davila's eligibility, and they sentenced him to death by lethal injection.

During Davila's appeal, his lawyer failed to argue that those bad instructions affected Davis' sentencing. Then, crucially, during Davila's post-conviction proceedings in state court, a new lawyer didn't bring up the appeal lawyer's failure to mention the instructions. With his case now up for a federal appeal, Davila's latest lawyer argued that because his appeals lawyer was incompetent, the federal court should review the impact of the inaccurate instructions to the jury.

Federal courts, however, typically won't rule on issues that could have been reviewed at the state level.

"The question is [not] really whether or not Davila had a fair trial," O'Brien said. "He did not. The question is whether the federal court can remedy that he had an unfair trial."

The answer to that question, the justices ruled in a 5-4 decision in Davila v. Davis, is no.

"Claims of ineffective assistance of appellate counsel, however, do not pose the same risk that a trial error - of any kind - will escape review altogether," Justice Clarence Thomas wrote in the majority opinion. (Thanks to a 2011 Supreme Court case, federal courts can already review lawyers' mistakes at the trial level.) Thomas added that, if the court ruled in Davila's favor, "Not only would these burdens on the federal courts and our federal system be severe, but the benefit would - as a systemic matter - be small."

It's unclear just how many cases will be affected by Monday's ruling. During oral arguments, lawyers for Texas argued that a ruling in Davila's favor could unleash a "flood" of cases into federal courts. Texas Attorney General Ken Paxton echoed that assessment in a statement celebrating the ruling, saying, "Had the high court ruled otherwise, states and the federal court system would have been burdened with an avalanche of claims facing an infinitesimal chance of success."

"It's going to exacerbate the difference between prisoners who have access to good lawyers and those who don't."

Stephen Vladeck, a professor at the University of Texas School of Law who wrote about the case for the Supreme Court outlet SCOTUSBlog, says this case wasn't just about the fates of what both he and O'Brien believe will actually be only a small number of prisoners who find themselves in situations like Davila's. Instead, Vladeck says, the case demonstrates a "lack of doctrine that responds to and accounts for these inequalities" in the criminal justice system - particularly for people facing capital punishment.

"It's going to further exacerbate the difference between state prisoners who have access to good lawyers for their post-conviction proceedings, and those who don't," Vladeck said. "Because the good lawyers will be able to salvage the ineffectiveness of the appellate counsel."

That difference may be steep. A Harvard Law School study of the 16 counties that imposed the death penalty 5 or more times between 2010 and 2015 (3 were in Texas) found "appalling inadequacies" in the quality of legal defense.

"You've got to win the lottery and get 3 good lawyers in a row," O'Brien said of the trial, appellate, and post-conviction process. "Even if you do get 1 good lawyer, the other 2 lawyers are going to undo the work of that lawyer.... They have a hard time consistently providing competent lawyers at the trial level, especially Texas."

As of late last year, Texas had executed more people than any other state - including 3 people who were sentenced to death after their lawyers slept through parts of their trials.

"It's going to be the occasional case that we'll see where this case makes a difference between life and death," O'Brien said of the Supreme Court ruling. "There will be some prisoners who will lose the capital punishment lottery because of this principle."

Source: vice.com, June 28, 2017

⚑ | Report an error, an omission, a typo; suggest a story or a new angle to an existing story; submit a piece, a comment; recommend a resource; contact the webmaster, contact us: deathpenaltynews@gmail.com.


Opposed to Capital Punishment? Help us keep this blog up and running! DONATE!

Comments

Most viewed (Last 7 days)

Tibetan protesters executed for Lhasa riot killings

Tibetan exiles have reported the first executions of those convicted for rioting last year in Lhasa, with at least two people put to death in a rare implementation of capital punishment in the restive region. Two Tibetans convicted of arson and sentenced to death in April were executed on Tuesday morning in Lhasa, reported The Tibetan Centre for Human Rights and Democracy, which is based in the Indian town of Dharamsala—the home in exile of the Dalai Lama. It said that Lobsang Gyaltsen and Loyak had been sentenced to death for their part in setting fire to five shops in the Tibetan capital, killing seven people, in the riot that rocked Lhasa in March last year. Officials say that 21 people — including three Tibetan protesters — died in the violence, which embarrassed Beijing just as it was preparing to stage the Olympic Games and prompted a security crackdown across the Himalayan region. The body of Mr. Gyaltsen had been returned to his family and then submitted to a river burial—an un...

Iran: Delara Darabi has now been scheduled for execution

Delara Darabi has now been scheduled for execution, according to the Iranian newspaper Etemad on 18 April, according to another source on 20 April. She was convicted of murdering a relative when she was 17. Unless the Judiciary intervenes, she can now escape execution only if the woman’s entire family accept payment of diyeh, or blood money. One of the familly is said to be undecided. Iran is a state party to the International Covenant on Civil and Political Rights and the Convention on the Rights of the Child, which prohibit the use of the death penalty against people convicted of crimes committed when they were under 18. RECOMMENDED ACTION: Please send appeals to arrive as quickly as possible: - expressing concern that Delara Darabi is in imminent danger of execution for a crime committed when she was under 18; - calling on the authorities to halt the execution of Delara Darabi immediately, and commute her death sentence; - reminding the authorities that Iran is a state part...

Florida | Former prison warden who oversaw executions urges corrections workers to not participate in them

Recently Florida carried out the execution of Dusty Spencer , a 74-year-old Marine veteran, for the murder of his wife, Karen, in 1992. It was the ninth Florida execution this year. For their own sake, I urge Florida’s corrections workers to refuse to carry out another one. Before you dismiss me as some soft lefty, you should know that I am an Air Force veteran. I voted for Ron DeSantis for governor twice—and for Donald Trump for president three times.

Iran: Prisoner of conscience Mohsen Amir Aslani hanged for ‘different interpretation of Quran’

Mohsen Amir Aslani NCRI - The Iranian Resistance calls on the UN High Commissioner for Human Rights and the Human Rights Council, as well as all international human rights organizations to strongly condemn the execution of prisoner of conscience Mr Mohsen Amir Aslani on charges of “corruption on earth; changing Islam’s principles and secondary laws; and new interpretation of Quran”.  It further calls for adoption of binding decisions against the growing number of arbitrary executions by the religious fascism ruling Iran. Mr. Amir Aslani, 37, who had been in prison since eight years ago, was once sentenced to four years in prison which was later commuted to twenty-eight months. However, as more fabricated charges were brought against him, the head henchman Judge Salavati condemned him to death. The Iranian regime has refraining from handing over the body of this prisoner to his family through stonewalling and offering contradictory answers to them. The execution...

Iraq: Saddam Hussein Execution was Moved Forward Because of Gaddafi Rescue Plans, Judge Says

Saddam Hussein's execution on December 30, 2006 The execution of former Iraqi President Saddam Hussein was accelerated due to the belief that the then Libyan leader, Muammar El-Gaddafi, had a plan to rescue him from prison, Judge Mounir Haddad revealed today. Hadad, who presided over the trial of Hussein, revealed to the Al-Arabiya Satellite Channel Point of Order program new details of the trial against the former president and his last moments before being hanged, including the 'health and welfare' votes for the magistrate himself . According to his testimony, the application of the death penalty to Saddam Hussein was precipitated because authorities knew that El-Gaddafi - later murdered in 2011 - was allegedly trying to bribe US guards who guarded him to rescue him from prison. He added that, contrary to previous reports from the local and US press, former Iraqi President Jalal Talabani gave his 'implicit approval' for Hussein's execution, an...

Tennessee Reduced Training in IV Placement in New Lethal Injection Protocol

The protocol that took effect in 2025 sheds new light on Tony Carruthers’ botched execution, when Dr. Mark Fowler spent nearly an hour trying, and failing, to place a secondary IV line Tennessee’s lethal injection protocol adopted a year and a half ago appears to include reduced training in IV placement. That’s the part of the process prison staff failed to complete last month before aborting the execution of Tony Carruthers. Filings from ongoing litigation over the protocol show concerns about the executioners’ training and qualifications aren’t new. 

Halfway through the year, Saudi Arabia has already executed nearly 100 people

Almost 100 people executed so far this year as dozens more remain on death row for drug-related offences Saudi Arabian authorities have executed nearly 100 people so far this year, including at least 61 for drug-related offences, the latest of which was on 18 June. In response, Dana Ahmed, Middle East Researcher at Amnesty International, said today: “It is halfway through the year and Saudi Arabia has executed nearly 100 people, a grim milestone exposing the authorities’ unconscionable and unlawful use of the death penalty. Of the 96 people put to death already in 2026, an astounding 61 were executed for drug-related offences; 39 of them were foreign nationals and 22 Saudi nationals.

U.S. | Lethal injections are more likely to be botched, experts say

Tony Carruthers, a Memphis man on death row, is one of hundreds of people in the U.S. whose executions did not go as planned When the Tennessee Department of Corrections botched Tony Carruthers’ execution, it wasn’t surprising to Austin Sarat. He’s been researching and writing about “state killings” for decades. “Of all of the methods of execution used in the United States over the last 140 years, lethal injection has the highest rate of being botched,” said Sarat, a professor of law and politics at Amherst College. He said an execution is botched when it deviates from standard operating procedure or official legal protocol.

Florida executes Dusty Ray Spencer

74-year-old man becomes oldest inmate executed in modern Florida history  A 74-year-old man convicted of fatally stabbing his wife became the oldest person executed in Florida’s modern history on Thursday, and the state is scheduled to execute another 74-year-old inmate next month.  Dusty Ray Spencer was pronounced dead at 6:10 p.m. following a 3-drug injection at Florida State Prison near Starke. Spencer was convicted of the 1992 stabbing death of his wife Karen. 

As Idaho Reinstates Firing Squad, Volunteers Sought for Executions

The state becomes the first in the U.S. to make the firing squad the standard method of capital punishment Idaho is opening a new phase in the administration of capital punishment in the United States, returning to the firing squad as the default method of execution. The decision reintroduces a system that has been abolished or abandoned in most of the country and is now being reorganized through a formal and highly structured framework. The new death penalty protocol State authorities have begun recruiting volunteer law enforcement officers to take part in executions. The operational model includes three primary shooters assigned to carry out the execution, two alternates, and one operations coordinator. All participants will remain anonymous, known only to the prison warden and deputy warden.