By Jim Schutze
By Rachel Watts
By Lauren Drewes Daniels
By Anna Merlan
By Lee Escobedo
In 1990, the Texas Bar Association, concerned about the quality and availability of counsel representing impoverished capital defendants, commissioned a study conducted by The Spangenberg Group, a research organization based in Newton, Massachusetts. After three years, the group reported its findings: "The situation in Texas can only be described as desperate. The volume of cases is overwhelming. Presently no funds are allocated for payment of counsel or litigation expenses at the state habeas level."
But in a state where nearly 61 percent of the population is in favor of the death penalty, many had little patience for habeas filings and often viewed the process as a time-consuming obstruction of justice. Indigent defendants had already been tried and convicted at the county's expense and gone through their direct appeals, again at the county's expense--drumming up even more money to pay for habeas cases would be no easy task. "There's a lot of issues out there that are going to get a lot more support than the number of people on death row," says state Rep. Pete Gallego from Alpine, the eventual House sponsor of the habeas bill.
After the release of the Spangenberg study in 1993, a state bar committee began meeting with the objective of convincing the Legislature to create an attorney appointment system for indigent death-row inmates during their state habeas appeals. The committee recommended and the Legislature later enacted a system that required the Texas Court of Criminal Appeals to appoint "competent counsel" in all state habeas cases. Although the committee would later suggest that these attorneys be compensated at a rate of $31,000 per case, it deferred to the appeals court to decide what was an appropriate fee.
Once the Legislature convened in January 1995, it only considered the appointment issue as part of a broader package of habeas reform. Attorney General Dan Morales took up the mantle of victim's rights groups who were fed up with delays in death sentences. Morales proposed and the Legislature later enacted changes to the code of criminal procedure that would require direct appeals and state habeas appeals to be filed concurrently. Morales also convinced the Legislature to set stricter habeas deadlines and, except in special circumstances, to limit defendants to only one state habeas appeal.
"By allowing the Court of Criminal Appeals to review trial-record [direct appeal] and non-record [habeas appeal] issues at the same time," Morales told them, "we maintain the integrity of the system, yet cut up to two years off the legal process."
For the system to work fairly and expeditiously, the new law envisioned that the Court of Criminal Appeals would appoint competent counsel who were adequately paid for their time. Although the Legislature had originally appropriated $4 million as compensation for these attorneys, it cut that amount to $2 million, woefully underfunding the program and dooming it to chaos. At first, the Court of Criminal Appeals paid lawyers only $7,500 for handling habeas writs; although last January, after lobbying the Legislature and the governor for more money, the judges were able to boost that cap to $15,000.
Not every judge agrees with setting limits on fees. "When the court imposed the $15,000 cap, I was against it, and I still am," says Court of Criminal Appeals Judge Charlie Baird. "I don't think it's adequate. I think it's very difficult to get competent counsel in cases like these for $15,000."
Originally, the court had counted on the altruism of the Texas criminal defense bar, hoping its lawyers would volunteer pro bono for what those in its rank and file had historically considered a noble cause. But when the appeals court issued a series of decisions strictly interpreting the new law, many criminal lawyers from across the state staged an unofficial boycott and refused to offer their services.
One case, in particular, aroused their ire: Death-row inmate Ricky Kerr had been convicted in October 1995 of killing his San Antonio landlady and her son. After losing his direct appeal, the court appointed Robert McGlohon Jr., an inexperienced San Antonio lawyer, to handle Kerr's state habeas appeal. However, McGlohon did not raise any issues regarding the guilt/innocence or sentencing phase of Kerr's trial. In response, the court not only rejected the appeal, but also counted it as Kerr's one and only petition. The trial court promptly set Kerr's execution date for February 25, 1998.
In his dissenting opinion, published only two days before Kerr was scheduled to be executed, Texas Court of Criminal Appeals Judge Morris Overstreet wrote: "For this court to approve of such and refuse to stay this scheduled execution is a farce and travesty...If applicant is executed as scheduled, this court is going to have blood on its hands..."
Only a last-minute stay issued by a federal judge has prevented Ricky Kerr's execution.
On June 6, the Texas Criminal Defense Lawyers Association chose to formalize its boycott by passing a resolution encouraging its 1,860 members not to seek appointments to represent condemned inmates. "Serious questions have arisen concerning whether it is morally correct for our members to participate in such a meaningless farce, where their efforts simply result in the removal of a procedural hurdle to execution, without regard to the justness of the conviction or sentence."