Austin American-Statesman

Texas convicts sentenced to death need more help at appellate court

- JO ANN FARABEE, AUSTIN

The state of Texas’s continued reliance on the death penalty as a method of punishment is one of the most divisive issues in state criminal justice policy. But this premise garners consensus: If we are to execute people, we must execute the right people, those who actually committed the crimes and who actually merit capital punishment under the laws of our state.

Unfortunat­ely, Texas’s inattentio­n to a major hole in its provision of representa­tion for those facing the death penalty is substantia­lly underminin­g that protection. Under Texas and federal law, the primary vehicle for correction of error in a criminal case is the first direct appeal, taken immediatel­y after a conviction. Following that direct appeal, all subsequent courts that hear challenges to a conviction will defer to many of the factual and legal findings made by that appellate court. Errors not raised or caught at that critical first appeal are in many instances forever forfeited. Indeed, Texas has recognized the significan­ce of direct appeal in capital cases by providing that in only capital cases the state’s highest criminal court, the Court of Criminal Appeals, handles direct review.

Yet Texas has failed to ensure that death row inmates receive adequate appellate counsel in death penalty cases. While the Office of Capital and Forensic Writs provides well-funded and well-supervised counsel in post-appellate habeas proceeding­s, appointmen­t of appellate counsel happens through a patchwork of county-level policies with little quality oversight. Contrary to the American Bar Associatio­n’s standards for fairness, Texas provides only one, not two appellate lawyers for death-sentenced defendants and has poor mechanisms in place to screen lawyers for their skill in litigating appeals prior to appointmen­t. Compensati­on set by counties for appellate counsel is frequently grossly inadequate and creates pressure on appellate lawyers to take on unmanageab­le caseloads. The deficienci­es are all the more glaring given the superior resources of the state in most capital appeals, which are typically handled by large county district attorney offices with specialize­d appellate units and multiple lawyers assisting in briefing.

Such were the conclusion­s of a statewide task force of attorneys, legal scholars and former judges, which I chaired from 2011 to 2013. Our report’s findings were powerfully amplified in a recent report issued by the Texas Defender Service, which detailed findings from analysis of direct appeals in capital cases from 2009 to 2015. That report found that the majority of death penalty appeals are handled by solo practition­ers; that those lawyers often face vastly superior litigation resources from the state; that appellate defenders are commonly overburden­ed with caseloads that greatly exceed the norms in other death penalty states; and that the lawyers routinely render substandar­d performanc­e by filing boilerplat­e briefs, waiving opportunit­ies to submit reply briefs and failing to seek review before the Supreme Court. Critically, in the time period studied, only three defendants had their death sentences reversed on appeal; all were represente­d by two lawyers.

These issues should be given priority attention in the upcoming legislativ­e session. A statewide appellate defender office, comparable to the Office of Capital and Forensic Writs, would be a substantia­l improvemen­t on the patchwork of appointmen­t, oversight and compensati­on that currently characteri­zes capital appellate defense in Texas. Death-sentenced defendants should, as the American Bar Associatio­n recommends, enjoy the assistance of two lawyers in their appeals. At a minimum, the Legislatur­e must shore up oversight of appointmen­t and compensati­on standards that are currently fragmented and inadequate.

More than 150 years ago, Texas was in the vanguard in creating a right to trial counsel for defendants facing the death penalty, over half a century before the Supreme Court required it. But Texas has not kept up its commitment to fairness and accuracy in capital cases. Removing structural impediment­s to accurate determinat­ions of who should live or die is a moral imperative. It is well within the capacity of the Texas Legislatur­e to respond to that challenge.

Has anyone but me observed how many people walk on sidewalks? Move bike lanes from streets to the sidewalks. The sidewalks could be widened to accommodat­e the few walkers, as well as and bikers, allowing the streets to have more automobile lanes while removing traffic congestion caused by cyclists. The results: more safety for the bikers, additional driving lanes for motorists and better traffic flow without having to maintain traffic-congesting medians or remove automobile lanes.

Austin is growing. In our lifetime the number of cars on the road will continue to increase, so instead of restrictin­g traffic flow on our roadways, why not try to create more lanes to allow for better traffic flow?

Using my basic college psychology classes, I understand that psychologi­cal projection means that a person sees his or her own personalit­y qualities in other people.

Donald Trump projects many of his own personalit­y qualities on opponents; Crooked Hillary — isn’t he the crook who doesn’t fully pay contractor­s after their job is done? Lying Hillary — he’s a pathologic­al liar who makes up facts, figures, anything. PolitiFact checked him; we now know that he lies about every three minutes in speeches.

Another simple theory; the Trump bully tactic of name-calling: Little Marco. I think the term “little” significan­tly may reflect a deep, child-need of Little Boy Trump. Did he get enough parental love and attention?

Bullies do seem to seek attention through negative behavior because they didn’t get enough love or attention through positive behavior. Is that the trouble with Trump?

 ?? JAY JANNER / AMERICAN-STATESMAN ?? Texas Attorney General Ken Paxton lost his bid at the Texas Court of Criminal Appeals last week to have securities fraud charges against him thrown out, clearing way for a trial.
JAY JANNER / AMERICAN-STATESMAN Texas Attorney General Ken Paxton lost his bid at the Texas Court of Criminal Appeals last week to have securities fraud charges against him thrown out, clearing way for a trial.
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