Death Penalty Post-Conviction Process in Crisis

FOR IMMEDIATE RELEASE
Thursday, February 13, 2003 Contact: Andrea Keilen
512.289.3778

Death Penalty Post-Conviction
Process in Crisis

A key portion of Texas' post-conviction review of death penalty cases is broken according to attorneys and legislators, and as a result some cases are not being reviewed and innocent people may be executed.

Yesterday, Judge Tom Price of the Court of Criminal Appeals issued a non-published opinion criticizing the Court's decision to allow the execution of Leonard Rojas last year. The Court had appointed a mentally ill, inexperienced attorney to prepare Rojas' habeas petition, the portion of post-conviction review in which prisoners may introduce new evidence about their cases, including evidence of innocence. At the time the Court of Criminal Appeals appointed the attorney he had received two probated suspensions from the State Bar of Texas and received an additional probated suspension from the Bar shortly after his appointment.

The attorney failed to investigate the case or raise any issues subject to review in habeas proceedings. The attorney then, without informing Rojas, waived Rojas' right to federal review of his death sentence. Rojas was executed by Texas December 4, 2002.

"The Court is in an awkward position, to be sure," Price wrote in his opinion. "We maintain the list of qualified attorneys for Article 11.071 proceedings. It is difficult to admit that mistakes have been made." Price raised the question, "This potential conflict begs the question, should we really be maintaining this list?" Price was joined in the opinion by Judges Sharon Johnson and Charles Holcomb.

Price also wrote that the Court should have been aware when it appointed the attorney that "counsel was not competent to represent the applicant in this case."

Andrea Keilen, an attorney with the Texas Defender Service, said,: "It was the clear intent of the legislature that individuals sentenced to death have a meaningful review of their cases. The Court of Criminal Appeals has had a lethal indifference to appointing incompetent attorneys who have not even filed proper claims, then denying the habeas petitions and refusing to appoint an attorney to do the proper work. Procedures are trumping substance, and executions proceed without the review that Texans demand of our criminal justice system.."

State Representatives Pete Gallego (D-Alpine) and Terry Keel (R-Austin) have both introduced legislation to change the way habeas appointments are made in death penalty cases.

"The Legislature addressed this issue in 1995, and thought we had solved the problem. The Court of Criminal Appeals is simply not following the law that calls for competent counsel to be appointed and is causing this breakdown of our judicial process," Rep. Gallego said.

Texas Defender Service released its report, "Lethal Indifference: The Fatal Combination of Incompetent Attorneys and Unaccountable Courts in Texas Death Penalty Appeals," in December 2002. The report detailed systemic problems with the state habeas process in death penalty cases and reviewed virtually all state habeas petitions filed since Texas law changed in 1995. The report documented cases where Court appointed lawyers failed to submit adequate petitions for review.

"The Texas Defender Service has brought this crisis to the public's attention," Keith Hampton, a criminal defense attorney, said. "They have served as the only watchdog of a Court not doing its job."

Keilen pointed out that the Court has no stated qualifications for appointment in these cases and that the list of approved attorneys include three prosecutors, an employee of the Texas Department of Corrections and numerous attorneys who have been disciplined by the State Bar. The Court recently removed one attorney whom the TDS report noted was deceased.

"The case of Leonard Rojas is not an isolated incident. It is one of several disturbing incidents in a pattern of neglect and irresponsibility by the Court, the one entity responsible for ensuring that each death-sentenced prisoner receives one full and fair review of the case before an execution can occur," Keilen added. - 30 -

NOTE TO EDITORS: The TDS report is available at: www.texasdefender.org/publications.htm

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