By Jim Schutze
By Rachel Watts
By Lauren Drewes Daniels
By Anna Merlan
By Lee Escobedo
The stand of the defense bar has only compounded a problem that began in 1995 after Congress cut all federal funds for 21 death-penalty support organizations, including the Texas Resource Center, with its two branches in Houston and Austin. When the center closed its doors, no organization was left to recruit and train attorneys who were willing to take on state habeas cases, but who were unfamiliar with the nuances of the process.
That process, unlike a direct appeal, is not limited to the trial record. The entire case must be reconstructed to see if it meets constitutional standards. An attorney must look for things that didn't happen, but should have; witnesses who should have testified, but weren't called. "It wouldn't be enough to say, 'My lawyers never left their office and never investigated this case,'" says Houston defense attorney Jim Marcus. "You would have to say, 'My lawyers never investigated, and here's what they would have found had they gone out and investigated and brought in the new evidence.'"
Representing condemned prisoners has always been complex and exhausting work for attorneys, pressured by time and the highest stakes imaginable. But it became even more difficult after Congress responded with legislation in 1996, which again shortened deadlines and limited all federal habeas cases to one appeal. And that appeal could only address issues that had earlier been raised and lost in state habeas proceedings (unless new evidence is discovered). These changes put an added burden on the habeas lawyer to get things right the first time around and an added disincentive for them to take the case in the first place.
Small wonder that when Alan Wright, a civil appellate lawyer and partner in the downtown Dallas law firm of Haynes and Boone, LLP, made it known that he was willing to handle a habeas appeal pro bono, death penalty opponents were only too willing to oblige him.
In their normal course of practice, Haynes and Boone's 300 lawyers are more likely to be found litigating in civil court on behalf of a growing list of prominent commercial clients, rather than sullying their white-gloved hands with the likes of a grungy death-penalty case. The firm's posh offices take up five and a half of the 72 floors in downtown's NationsBank Plaza. Founded here 25 years ago, Haynes and Boone now has branches in seven cities in this country and abroad. The firm has on occasion represented the Dallas Observer; its client list includes Atlantic Richfield, Cellular World Corporation, Dell Computer, National Instruments Corporation, the Tandy Corporation, and now Erica Sheppard--thanks to Alan Wright.
At 42, Wright has an easy-going, jocular manner that belies a fierce work ethic--one possible cause of his hair graying prematurely, he likes to think. Chairman of the firm's public-service committee, Wright had been looking for a death-row appeal to handle, but when David Marshall of Amnesty International phoned him last April to see if he was up to the challenge, it gave him pause. Texas had already executed Karla Faye Tucker in February. There was no reason to believe the state wouldn't do the same to another woman. Nonetheless, "we decided to take the case," says Wright. "If you are a millionaire, you get a lot of due process. But these defendants, they are on the bottom rung of the ladder, and they don't have anyone speaking up for them."
On May 1, Wright filed a motion for Sheppard requesting a new attorney and asking the appeals court to appoint his firm without compensation. Attorney James Keegan, who had been appointed to handle the habeas appeal in October, had already been granted the case's only 90-day extension, making July 1 the deadline for filing the petition. A reappointment of new counsel, as Wright requested, would restart the filing time line and give the firm another 180 days. While the court granted Sheppard's request to discharge Keegan, it did not "reappoint" Wright to the case, which effectively gave him only two months to fully prepare the habeas writ.
Wright committed himself and his firm's reputation to a task most solo practitioners would have found difficult to accomplish. Keegan had apparently read the trial record, says Wright, "but it appeared to me that very little, if any, factual investigation had been done, in terms of interviews with witnesses, interviews with jurors, or retaining experts." Immediately, Wright signed up the services of Tena Francis, a top-notch criminal defense investigator based in Wylie, and the firm assigned seven additional attorneys to the defense team.
Wright's first task was to read and study Sheppard's trial record. The lower court had appointed three lawyers to try her case. But after Wright read the transcript, he says, it became painfully apparent that her lead attorney, Charles Brown, had done virtually nothing to prepare himself for Sheppard's trial. Wright was appalled. "It made me angry," he says, "because I don't think the trial was fair. And it wasn't fair because the attorneys didn't make an effort to make it fair."
Wright intended to file several claims of ineffective assistance of trial counsel; surprisingly, he was helped in those claims by an affidavit he obtained from the trial counsel himself. In his sworn statement, Brown corroborates how little he prepared for Sheppard's capital case. He lists 10 possible witnesses that he did not interview prior to trial. Erica Sheppard, he says, also provided him with a list of 12 other witnesses who would testify in the punishment phase on her behalf; he interviewed only two of them. Instead, Brown claims, he relied on the assistance of his co-counsel to handle the investigation of all mitigating evidence in the sentencing phase, even though "I did not consider Attorney Bolden qualified to sit as second chair." And attorney Hazel Bolden claims by her affidavit that Brown--whom she did not consider qualified to sit as lead counsel--"did not assign her any responsibility for the investigation of the case."