Halt execution and fix overt injustice
We have had the case of the Sleeping Lawyer. Then came the case of the Drunk Lawyer. Now we have the case of the Disbarred Lawyer.
As governor of Texas, I authorized 19 executions. Since then, I have seen many cases of profoundly deficient lawyering for people who were sent to death row.
But what happened to TaiChin Preyor, who is scheduled for execution on Thursday, is beyond the pale.
Preyor was convicted of a murder in San Antonio and sentenced to death in 2005. His mother, Margaret Mendez, would do anything to save her son’s life. A longtime employee of the U.S. Postal Service, she did not have hundreds of thousands of dollars to spend on a dream team to get her son’s conviction reversed.
Mendez’s niece introduced her to Philip Jefferson at a Thanksgiving dinner in 2007. Jefferson presented himself as a “retired” lawyer. In reality, he had been disbarred in California almost 20 years earlier. He claimed to be associated with Johnnie Cochran, who famously won a not guilty verdict for O.J. Simpson, and Mendez was understandably impressed. He said that due to his “retired” status, he would have to bring in an associate to sign and file documents.
Thus began an extraordinary fraud not only on Preyor’s mother but also the courts. The lawyer who worked at Jefferson’s direction, Brandy Estelle, had a probate, estate planning and real estate law practice in California. She had no experience in death penalty cases.
Estelle did not disclose to the courts that Jefferson was guiding the litigation or that the two sought duplicate payments from both Mendez and the 5th U.S. Circuit Court of Appeals. All told, Mendez paid $45,000, cleaning out her savings and retirement funds, while Estelle sought compensation from the 5th Circuit for some of the same work without Mendez’s knowledge.
No one will be surprised to learn that the “representation” the disbarred Jefferson and the unqualified Estelle provided was shockingly deficient in ways that are rarely seen. They filed a habeas corpus petition on Preyor’s behalf that had no citations to the record or evidence outside the record. The federal court denied the petition, finding that it disregarded applicable habeas law.
Most disturbingly, Jefferson and Estelle completely missed the fact that Preyor’s trial counsel had conducted a subpar investigation into Preyor’s background.
If he had provided effective assistance, he would have found and presented compelling mitigation evidence about Preyor’s childhood, which was replete with violence and sexual abuse.
The violence and sexual abuse that Preyor experienced does not excuse his crime, but it could have led the jury to a greater understanding.
If only one juror had heard the mitigation evidence and been persuaded that Preyor was not the “worst of the worst,” he would be serving a life sentence today.
It’s not too late to fix this disturbing injustice.
In May — a short eight weeks before Preyor’s scheduled execution date — the U.S. District Court for the Western District of Texas authorized funding for new attorneys, with valid law licenses, to investigate and prepare a case for Preyor.
These attorneys have filed a clemency petition asking Gov. Greg Abbott to commute his death sentence to life or, at the least, grant a reprieve to allow his new attorneys to complete their work.
I believe there are rare cases where the death penalty is the appropriate punishment.
If we are to have capital punishment, we must afford defendants the protections that are enshrined in our Constitution.
The Sixth Amendment is clear that the accused shall have the right to the assistance of counsel. At its most basic, that means a qualified lawyer with a law license, not one who has been prohibited from practice. The integrity of our system demands that Preyor’s claims receive a fair hearing before his execution can proceed.
Mark White served as governor of Texas from 1983 to 1987 and Texas attorney general from 1979 to 1983. This op-ed originally appeared in the San Antonio Express-News.