The StandDown Texas Project

When Innocent Prisoners Finally Go Free, Their Prosecutors Do, Too

That's the title of a lengthy examination of wrongful convictions in the current Dallas Observer. It's subtitled, "On the trail for justice with Texas' exonerees," and is written by Leslie Minora.  Here's the beginning of this must-read:

The outcome was already determined, the stories already written, but the cameras and the recorders were out anyway, waiting for the judge to say the words. He was about to declare Richard Miles actually, technically, legally innocent of a 1994 murder, a shooting at a Texaco station near Bachman Lake. A higher court had already declared him innocent. There was nothing left to do but a little criminal-justice theater.

The reporters in attendance wondered what would make this day's story unique among the wave of stories about innocent prisoners. Miles was about to provide their answer.

A thin man with a strong jawline and determined face, Miles listened to the judge's apology and then, before he addressed the crowd, leaned toward his lawyer.

"Can we hit them with a bomb?" he asked. "Is it a good time to hit them with a bomb?"

"Richard, you're a free man," he remembers his lawyer saying. "You can say whatever you want to say."

He stood, encircled by reporters. After some thank yous, he lit the fuse: "I want to say that me and my lawyer, Cheryl Wattley, we'll make a formal complaint against Thomas D'Amore for prosecutorial misconduct," Miles said, referring to the lawyer who prosecuted him. "My life was taken because of malicious acts by a prosecutor. I can't just let that go by."

As he spoke, several of the 33 innocent men freed in recent years by Dallas County watched from the gallery, dressed as if for mass. At least seven of their cases had contained "official misconduct," mostly exculpatory evidence that wasn't disclosed to defense lawyers, according to Michigan and Northwestern University's National Registry of Exonerations. Misconduct contributes to 42 percent of exoneration cases nationally, those researchers say.

It's a problem that's had a particularly profound effect in Texas. In 91 criminal cases between 2004 and 2008, Texas courts found that prosecutors withheld evidence, made improper arguments or committed other misconduct, according to a report by Veritas Initiative, part of a national Prosecutorial Oversight coalition. But only one prosecutor was disciplined in that time period by the State Bar of Texas. (His license was suspended for two years.)

Earlier coverage of the National Registry of Exonerations begins at the link.  Related posts are in the exoneration, prosecutorial misconduct, and wrongful incarceration category indexes.

Errors in Judgment

That's the title of a Texas Tribune series reported by Brandi Grissom.  It features an interactive with additional information on the cases analyzed, an overview article, and a look at Kerry Max Cook's long fight for freedom and now, official exoneration.  Here's the introduction:

The Texas Tribune analyzed 86 overturned convictions, finding that in nearly one quarter of those cases courts ruled that prosecutors made mistakes that often contributed to the wrong outcome. This multi-part series explores the causes and consequences of prosecutorial errors and whether reforms might prevent future wrongful convictions.

"Courts Found DA Error in Nearly 25% of Reversed Cases," is the overview that examines several of the cases.

From the moment 4-year-old April Tucker died, Debbie Tucker Loveless and John Harvey Miller told police and prosecutors that she had been mauled by dogs. But in 1989, the couple was convicted of murdering her and sentenced to life in prison. 

Four seemingly endless years later, in 1993, the Texas Court of Criminal Appeals overturned their convictions, after a state district judge ruled prosecutors had withheld critical evidence that vindicated the couple.

Between 1989 and 2011, at least 86 Texas defendants including Loveless and Miller had their convictions overturned, according to the National Registry of Exonerations. In an extensive analysis of court rulings, news reports and pardon statements, The Texas Tribune found that in nearly one-quarter of those cases — 21 in total — courts ruled that prosecutors made mistakes that in most instances contributed to the wrong outcome. The wrongfully convicted in those cases spent a combined total of more than 270 years in prison.

In the cases, judges found that prosecutors broke basic legal and ethical rules, suppressing important evidence and witness testimony and making improper arguments to jurors. Despite the courts’ findings of some serious missteps, the State Bar of Texas reports very little public discipline of prosecutors in recent history.

The State Bar does not track discipline of prosecutors separately from other lawyers. But Linda Acevedo, the chief disciplinary counsel for the State Bar who has been at the agency since 1985, said she could recall three prosecutors who were publicly reprimanded. None of the reprimands were related to the 86 wrongful convictions.

"Interactive: Texas Wrongful Conviction Explorer," compiled by Ryan Murphy.

Grissom also writes, "Prosecutor Errors Haunt Long Exoneration Fight," on the case of Kerry Max Cook.  It appears in the Texas edition of today's New York Times as, "As Former Death Row Inmate Tries to Clear His Name, His Life Is on Hold."

Kerry Max Cook had been out of prison for about three years when his son was born.

As Kerry Justice Cook slept in his crib, his father would peer down at him and cry, battling suicidal thoughts that he says have haunted him since his 20 horrific years on Texas’ death row.

“I’d tell K. J., ‘You’ve got to hurry up so you can talk to me. I’m so alone,’” Mr. Cook said.

K. J. is 11 now, and talking seems to be one of the mature youth’s fortes. He introduces his father to crowds at speaking engagements across the world.

“I find it quite amazing that he was able to go there for 22 years and go through every obstacle which he had to go through,” said the fifth grader, wearing a Mickey Mouse T-shirt and brushing shoulder-length blond hair away from his face. “I think he’s the most respectable man that I know.”

Mr. Cook, 56, was convicted of the 1977 rape and murder of Linda Jo Edwards in Tyler, Tex. His first conviction was overturned, a second trial ended in a hung jury and a third ended with a conviction that was reversed after a court found it was tainted by prosecutorial misconduct. Before Smith County attempted to try Mr. Cook a fourth time, he agreed to a plea deal in 1999. Pleading no contest, he was set free. DNA testing subsequently revealed another man’s biological matter on the victim’s clothes.

Mr. Cook has written a book, actors like Tim Robbins have portrayed him in a play about exonerations and he teaches courses about overcoming adversity. In the eyes of the law, though, Mr. Cook is still a convicted murderer. Normal life, he said, is beyond his reach.

“This freedom means nothing with a conviction,” he said.

Thirteen years after his release, Mr. Cook is battling with Smith County prosecutors to officially clear his name.

Earlier coverage of Kerry Max Cook and the National Registry of Exonerations begins at the links.  Related posts are in the exoneration, prosecutorial misconduct, and wrongful incarceration category indexes.

Bradley Ungrieved by State Bar

Today's Austin American-Statesman reports, "Bradley complaint dismissed in Morton case," by Chuck Lindell.

The State Bar of Texas has dismissed a complaint alleging that Williamson County District Attorney John Bradley engaged in misconduct and violated ethics rules in his handling of the Michael Morton case.

Morton was freed in October after serving almost 25 years in prison when DNA tests implicated another man in the 1986 murder of his wife, Christine Morton, in their southwest Williamson County home.

According to the grievance filed in November by the Texas Coalition on Lawyer Accountability, an Austin organization that focuses on attorney responsibility, Bradley improperly fought to prevent the DNA testing that led to Morton's exoneration.

Bradley's opposition was an apparent attempt to cover up misconduct by Morton's trial prosecutors and extended Morton's prison stay by six years before an appeals court ordered the testing to take place, the complaint said.

But in a Dec. 28 letter, released Tuesday by Bradley, the state bar's Office of the Chief Disciplinary Counsel said an examination determined that "the information alleged does not demonstrate professional misconduct."

"As the report from (Morton's lawyers with) the Innocence Project indicated," Bradley said via email, "the DA's office acted professionally and ethically in handling the Morton claim of innocence, arising from a 25-year-old conviction through a different prosecutor."

Julie Oliver, executive director of the coalition, said she plans to file an appeal with the state bar's Board of Disciplinary Appeals.

"State Bar Dismisses Bradley Misconduct Grievance," by Brandi Grissom at the Texas Tribune.

Williamson County District Attorney John Bradley today released a letter from the State Bar of Texas informing him that the agency has dismissed a grievance filed against him in the Michael Morton case.

"Today, I received written confirmation that the alleged grievance filed against me did NOT demonstrate any misconduct on my part," Bradley said in an email (the emphasis is his). "As the report from the Innocence Project indicated, the DA's office acted professionally and ethically in handling the Morton claim of innocence, arising from a 25-year old conviction through a different prosecutor."

Morton was exonerated last year after spending nearly 25 years in prison for his wife's murder in 1986. DNA evidence revealed that another man's biological material was mixed with Christine Morton's blood on a bandana found near the crime scene. The same DNA was linked to hair found at the scene of an unsolved Austin murder that happened in 1988, after Morton had been sentenced to life in prison.

And:

In November, the Texas Coalition on Lawyer Accountability filed grievances against Anderson and other prosecutors involved in the case, including Bradley. Bradley took over as prosecutor long after Morton was in prison, but he fought for six years against the DNA testing that eventually led to the exoneration. Bradley, however, has said that he did not know about evidence that was allegedly withheld during Morton's 1987 trial and that he fought the request for testing based on Anderson's advice.

Earlier coverage of the grievance filing begins at the link.  Additional coverage of the Morton exoneration is also available.

What's Next for Michael Morton

Attorneys for Michael Morton filed a "Report to Court" with exhibits; both available in Adobe .pdf format.  Morton is asking for a court of inquiry to examine possible prosecutorial misconduct in his case.  The State Bar of Texas is already looking into the mattter.

"Charges against Morton formally dismissed; inquiry sought on prosecutor's actions," is the title of Chuck Lindell's latest report in today's Austin American-Statesman.

Michael Morton completed one leg of his legal journey Monday when a judge formally dismissed his murder charge, declaring him innocent of the crime that cost him almost 25 years in prison.

But District Judge Sid Harle delayed a decision on Morton's second request: that a special court examine allegations that his prosecutor, Ken Anderson, broke several laws by concealing evidence before, during and after Morton's trial.

Harle said he needed more time to review the request to convene a court of inquiry, an ad hoc, fact-finding process often used when the actions of a public official have been called into question.

A decision is not expected before year's end because Harle also offered Anderson, now a Georgetown district judge who has repeatedly denied allegations of misconduct in Morton's 1987 trial, a chance to file briefs opposing the inquiry.

The state's highest criminal court has already voided Morton's conviction in the murder of his wife, Christine Morton, who was beaten to death while lying in bed in their southwestern Williamson County home.

But Harle's signature Monday on the motion to dismiss charges formally released Morton from the murder case and brought the hearing to a close with a standing ovation from a packed courtroom.

"What befell you and your family many years ago was a horrendous tragedy," Harle said, commending Morton for never giving up his fight for innocence, even when he was offered a chance at parole if he accepted responsibility for his wife's murder.

And:

To call for another district judge to lead a court of inquiry, Harle would have to agree that there is probable cause that Anderson violated Texas law in his handling of the case. If the court is convened, Anderson would not be a defendant. Instead, the judge would attempt to determine, using affidavits and courtroom testimony, whether laws were broken.

Most of Monday's hearing was devoted to a 140-page report detailing the results of a defense-led investigation begun after Morton's release from prison in early October.

Morton lawyer Barry Scheck, co-founder of the Innocence Project in New York, told Harle that the investigation's findings strongly suggested that Anderson concealed several pieces of evidence from Morton's trial lawyers in violation of two state laws: tampering with physical evidence, a felony punishable by up to 10 years in prison that includes concealing "any record or document," and intentionally concealing a government record, a misdemeanor punishable by up to a year in jail.

Brandi Grissom posts, "Cleared of Murder, Morton Seeks Accountability," for the Texas Tribune.

A beaming Michael Morton kissed the piece of paper he had been waiting nearly 25 years for on Monday after Judge Sid Harle stepped down from the bench, shook his hand and gave him the order that officially cleared him of his wife’s 1986 murder.

"This is a happy day, obviously," Morton said after the court proceeding, his voice quaking. "But let's not forget this was a horrible crime. My wife's brains were splattered all over the bedroom, the ceiling."

Murder charges against the former grocery store manager were formally dismissed on Monday. Morton spent a quarter century behind bars for a crime that DNA evidence revealed this year he did not commit, and he was released from prison in October.

For Morton, though, the day full of hugs and happiness was not just about freedom. It was also about holding accountable the prosecutor who he alleges withheld evidence that could have led to his acquittal back in 1987. Morton and his lawyers asked Harle, a Bexar County state district judge, to launch an unprecedented court of inquiry to determine whether Ken Anderson broke state laws and violated professional ethics codes by withholding evidence when he prosecuted Morton.

And:

They argue that Anderson concealed police reports that Judge William S. Lott ordered him to disclose during the 1987 trial so that he could determine whether they might help Morton’s case. Lott found nothing exculpatory in the few pages he was provided by Anderson and ordered the record sealed.

When a different judge ordered the record unsealed in August, Morton’s lawyers discovered that Anderson had provided very few of the available police reports. Crucial pieces of evidence were missing, including a transcript of a telephone conversation between a sheriff’s deputy and Morton’s mother-in-law in which she reported that her 3-year-old grandson had seen a “monster” — who was not his father — attack and kill his mother. 

Police reports from Morton’s neighbors were also missing. They told police they saw a man in a green van park near their home and walk into the woods behind their house. Gone from the file, too, were reports that Christine Morton’s credit card had been used and a check with her forged signature cashed after her death.

When Harle freed Morton based on the DNA evidence in October, he also authorized an unusual process that allowed his defense lawyers to investigate Anderson's conduct. The lawyers deposed the lead sheriff’s investigator, an assistant district attorney who worked with Anderson and the former prosecutor himself.

The AP report is, "Wrongfully imprisoned man wants probe," by Juan A. Lozano.  It's via the Lubbock Avalanche-Journal.

A man wrongfully imprisoned for nearly 25 years for his wife’s murder said Monday that revenge isn’t his motive for seeking an investigation of the prosecutor he and his attorneys believe concealed evidence at his trial.

“A lot of people think I want a pound of flesh,” said Michael Morton, who was freed after new DNA evidence tied another man to the crime. “Revenge is a natural instinct, but it’s not what I’m looking for here, just accountability.”

Morton, 57, spoke Monday after a court hearing in which his attorneys presented findings from a blistering 138-page report in which they accuse the prosecutor in his case of committing “serious acts of misconduct.” The report asks state District Judge Sid Harle to assemble a special court of inquiry to investigate former prosecutor Ken Anderson on charges he disregarded an order at the original trial to turn over all evidence that could have supported Morton’s claims of innocence. The report also accuses Anderson of tampering with evidence and court records.

Fighting back tears, Morton said although his false imprisonment cost him a quarter century of his life and the chance to enjoy his son’s childhood, Monday was a “happy day” because he was able to ask a judge to investigate the allegations against Ken Anderson, who is now a state district judge.

And:

Morton’s attorneys also recommended several policy reforms for lawmakers to consider, including having the Texas Legislature hold hearings on simplifying rules for turning over evidence that could point to a defendant’s innocence.

"‘Extraordinary Legal Event’ Unfolds as Man Exonerated of Wife’s Murder Seeks to Hold DA Accountable,"
by Martha Neil at the ABA Journal.

If given the green light by Judge Sid Harle, a visiting jurist from Bexar County who took over the Morton case in August, the inquiry would apparently be the first of its kind concerning any of the more than 200 inmates nationwide who have been exonerated, like Morton, due to DNA evidence, according to the Times.

“I haven’t seen anything like this, ever,” law professor Bennet L. Gershman of Pace University told the newspaper. “It’s an extraordinary legal event.”

Anderson says he did nothing wrong and has questioned the authority of the court to investigate his work as a prosecutor so long ago.

Yesterday's New York Times carried, "Exonerated of Murder, Texan Seeks Inquiry on Prosecutor," by John Schwartz and Brandi Grissom.

Mr. Morton, who was a manager at an Austin supermarket and had no criminal history, was charged with the beating death of his wife, Christine, in 1986. He had contended that the killer must have entered their home after he left for work early in the morning. But Mr. Anderson convinced the jury that Mr. Morton, in a rage over his wife’s romantic rebuff the previous night — on Mr. Morton’s 32nd birthday — savagely beat her to death.

Mr. Morton was sentenced to life in prison. Beginning in 2005, he pleaded with the court to test DNA on a blue bandanna found near his home shortly after the murder, along with other evidence.

For six years, the Williamson County district attorney, John Bradley, fought the request for DNA testing, based on advice from Judge Anderson, his predecessor and friend. In 2010, however, a Texas court ordered the DNA testing, and the results showed that Mrs. Morton’s blood on the bandanna was mixed with the DNA of another man: Mark A. Norwood, a felon with a long criminal history who lived about 12 miles from the Mortons at the time of the murder. By then, Mr. Morton had spent nearly 25 years in prison.

Mr. Norwood has been arrested and charged in Mrs. Morton’s death and is a suspect in a similar murder from 1988.

And:

In an interview, Mr. Scheck said he hoped the court of inquiry proceeding would result in changes in law and policy that could promote greater fairness in criminal cases. Previous high-profile exonerations, he said, have led to new laws that improved access to DNA testing after conviction and provided generous compensation to those who were wrongfully convicted.

“This is one of those catalytic, iconic cases that leads to reform,” he said.

Earlier coverage of Michael Morton's exoneration begins at the link.

The responsibility of the state to provide exculpatory evidence to the defense was articulated in the 1963 Supreme Court ruling in Brady v. Maryland; more via Oyez.  Related posts are in the prosecutorial misconduct index.

Grievances Filed Against Prosecutors in Morton Case

"Grievances filed in Morton case," is Chuck Lindell's Austin American-Statesman report.

The Texas Coalition on Lawyer Accountability, a relatively new organization that focuses on attorney responsibility, said today it will file grievances against three former or current Williamson County prosecutors involved in the Michael Morton case.

The grievances ask the State Bar of Texas to discipline Morton’s trial prosecutors - Ken Anderson, now a district judge in Georgetown, and Mike Davis, now a Round Rock lawyer — and current District Attorney John Bradley.

The organization said news reports indicate that Anderson and Davis violated their duty as prosecutors by failing to provide Morton’s trial lawyers with evidence that pointed to his innocence. The group also said Bradley wrongly fought DNA tests requested by Morton’s lawyers in 2005, prolonging Morton’s prison stay by six years. Morton was freed in October after the forensic tests pointed to another man as the killer of his wife, Christine, in their Williamson County home.

The state bar, which oversees lawyer discipline, has already announced an investigation into actions taken by Anderson and Davis in the Morton trial.

The link in Lindell's report takes you to the individual greivance fililings.

Brandi Grissom posts, "Lawyer Group Files Grievances in Morton Case," at Texas Tribune.

Morton was released last month after spending nearly 25 years in prison, wrongfully convicted of murdering his wife in 1986. Morton's lawyers have discovered that prosecutors did not turn over to defense attorneys or the trial judge evidence that pointed to another man as the murderer and could have prevented the wrongful conviction.

The State Bar would not confirm receipt of the grievances, but the agency said last month that it had launched its own investigation of prosecutorial misconduct in the case. Morton's lawyers are also pursuing their own investigation of alleged wrongdoing.

Julie Oliver, executive director of the lawyer's coalition, said the group's grievances today were meant to reiterate the public's interest in seeing that those who were responsible for Morton's wrongful imprisonment are held accountable. 

"We feel it's important that a lot of pressure be put on them from different parts of the public to ensure they understand the importance of the investigation," Oliver said.

Austin's YNN, the Time-Warner Cable local news outlet, carries, "Anderson deposition delayed; TCLA files grievances against Morton prosecutors."

The transcript from former Williamson County District Attorney Ken Anderson's deposition has been delayed again. It will now be released either Tuesday or Wednesday, instead of Monday as originally scheduled.

In the document, Anderson answers questions about the Michael Morton case. Anderson, now a district judge in Williamson County, was the lead prosecutor in the 1987 trial that wrongly convicted Morton of his wife's murder, and sent him to prison for 24 years.

Morton's attorneys maintain Anderson and others hid evidence from the defense at trial that would have poked holes in their prosecution.

Nearly two weeks ago, Anderson apologized for Morton’s wrongful conviction. He said the criminal justice system failed, but said he acted within the law during the trial.

"Texas Coalition on Lawyer Accountability (TCLA) Files Grievances Against The Michael Morton Case Prosecutors," is the TCLA news release.  The full text is below:

The Texas Coalition on Lawyer Accountability (TCLA) announced that its Executive Director, Julie Oliver, is today filing disciplinary grievances against prosecutors in the Michael Morton case: current Williamson County District Attorney John Bradley; former Williamson County District Attorney (and current District Judge) Ken Anderson; former Williamson County Assistant District Attorney Mike Davis.

Published reports indicate that those lawyers may have violated several of the ethics rules that govern Texas lawyers.  The apparent violations had tragic, horrific consequences—including the wrongful imprisonment of Michael Morton for 25 years, and the undermining of public confidence and trust in the criminal justice system in Williamson County.

Collectively, Anderson, Bradley, and Davis appear to have violated one or more of the following ethical standards governing the conduct of Texas lawyers (the Texas Disciplinary Rules of Professional Conduct).

In 1987, a jury convicted Michael Morton of murdering his wife, Christine.  Morton was sentenced to life in prison.  After serving almost 25 years in prison for a murder that he did not commit, Mr. Morton was released in October 2011 after DNA testing exonerated him.  Published reports suggest that the Morton prosecution team withheld key evidence from the defense during the murder trial, misrepresented the testimony of certain key witnesses during closing arguments, and failed to comply with a court order.

All of these actions likely caused Mr. Morton’s wrongful conviction—and kept the true murderer on the street.

“What is clear is that the prosecution in the Morton case dramatically failed to meet the burden imposed by court rules, statutes, and the Constitution, to disclose evidence tending to negate guilt,” said Julie Oliver, Executive Director, Texas Coalition on Lawyer Accountability.  “In Texas, for far too long disciplinary enforcement against prosecutors who engage in unethical conduct has been lax or non-existent.”

Article 2.01 of the Texas Code of Criminal Procedure best states the critical message of this case: “It shall be the primary duty of all prosecuting attorneys, including any special prosecutors, not to convict, but to see that justice is done.”  This disciplinary case, if investigated thoroughly and prosecuted vigorously, can help make that critically important ethical rule a functional reality in our criminal justice system.  Justice in Texas requires no less.

 “We are filing these grievances today so that public scrutiny of the investigation will be assured, vigorous, and ongoing,” said Julie Oliver.  “Effective lawyer discipline requires such public vigilance and involvement.”

The Texas Coalition on Lawyer Accountability (TCLA) is a nonprofit 501(c)(3) organization dedicated to educating the public and advocating the public interest to hold the Texas legal profession accountable to its statutory, constitutional, and ethical obligations.  Coalition members include the Mexican American Legal Defense and Education Fund (MALDEF), Public Citizen, the Environmental Defense Fund (EDF), the Southwest Voter Registration Education Project (SVREP), the Texas Civil Rights Project (TCRP), Texas Watch Foundation, and the Texas Housing Justice League (THJL).

Earlier coverage of Michael Morton's exoneration begins at the link.  Related posts are in the prosecutorial misconduct index.

Continued Coverage of the Morton Investigation

"Morton lawyers ask judge to enforce subpoenas," is the title of Chuck Lindell's report from the Saturday edition of the Austin American-Statesman.

Lawyers for Michael Morton on Friday asked a district judge to enforce subpoenas ordering two former Williamson County prosecutors to testify under oath.

The former prosecutors, District Judge Ken Anderson and Round Rock lawyer Mike Davis, earlier this week filed motions seeking to quash the subpoenas, saying the court and Morton's lawyers lacked the authority to force their testimony.

Morton's lawyers responded Friday with their own motion arguing that the subpoenas were a legally proper attempt to pursue allegations that Anderson and Davis hid evidence that pointed to Morton's innocence before and after his 1987 murder trial.

The defense motion urged District Judge Sid Harle to allow the subpoenas to stand and, if necessary, issue a ruling ordering Anderson and Davis to testify in videotaped depositions.

Harle is expected to rule before Tuesday, when Davis is scheduled to be deposed. Anderson's deposition is scheduled for Wednesday.

And:

According to defense lawyers, the authority to subpoena Morton's prosecutors was outlined in a discovery agreement with the current district attorney, John Bradley. More importantly, the discovery agreement was attached to findings that Harle approved Oct. 3, making them part of a valid court order that Harle can — and should — enforce, the motion said.

Defense lawyer John Raley noted in the motion that Anderson and Davis could not be expected to know details about the discovery agreement because Harle ordered the details to be kept secret in a sealed court file.

"Morton Lawyers: Former DAs' Claims 'Wholly Deficient'," by Morgan Smith for the Texas Tribune.

Michael Morton's legal team responded today to claims from the exonerated man's original prosecutors that they cannot be forced to testify as part of an investigation into how Morton was wrongfully convicted of murdering his wife in 1986 and sent to prison until his release earlier this month.

And:

They have asked to question Mike Davis and Ken Anderson, the assistant district attorney and the district attorney of Williamson County at the time of the Morton trial. Both men filed motions to quash the depositions saying, among other things, that the court had no jurisdiction to compel their testimony.

Anderson is now a state district judge in Willliamson County and said in his filing that he has 43 matters pending on his judicial docket and a previously scheduled medical procedure on the day defense attorneys have requested his presence. 

Davis, now a lawyer in private practice, submitted a 17-page motion in which he objected hotly to the subpoena, writing that he "is now an innocent bystander in the crossfire" of political and media battles between attorneys with the Innocence Project, who along with Houston attorney John Raley, are representing Morton, and current Williamson County District Attorney John Bradley.

The Southwest edition of the New York Times carries, "After 23 Years, a Suspect Emerges and a Family’s Wounds Are Reopened," by Brandi Grissom.

Almost everything that Caitlin and Jesse Baker know about their mother, who was mysteriously murdered 23 years ago when they were small children, comes from memories shared by relatives and from fading family photos of the smiling, petite brunette.

Over the years, aunts and uncle told them stories about their protective and generous sister. Their father recalled the loving wife who seemed to live in her pink sweat suit. Their grandmother shared pictures of their mother’s favorite horse, Molly, and tattered newspaper clippings of articles she wrote as a student journalist.

But no one has been able to answer the question that has tormented the Baker children for years: Who entered their North Austin home on Jan. 13, 1988, and beat Debra Masters Baker to death?

“I’ve never really seen an investigation happen,” said Jesse Baker, now 31. “It’s sort of just been fits and spurts over the last 20 years.”

This month, in a courtroom in Williamson County, just north of Austin, the siblings learned of the most dramatic development in the case in two decades. DNA from hair retrieved at the scene of their mother’s murder — evidence that the Bakers did not know existed — matched a biological sample found near the home where another young wife and mother, Christine Morton, had been murdered in August 1986. Her husband, Michael Morton, had been convicted in her death in Williamson County and sentenced to life in prison, but was exonerated last week.

“Not only was there something in our case, but there was maybe another case,” Jesse said. “It was shocking.”

Brandi Grissom also writes, "Morton Prosecutor Says He is Victim of a Media War," for the Texas Tribune.

Mike Davis, one of the original prosecutors who worked on the murder case against Michael Morton in 1987, said in court filings today that he is a victim of a media and political war between the exonerated man's lawyers and Williamson County District Attorney John Bradley.

Davis filed a motion to quash Morton's lawyers' request to interview him about his role in the trial that led to Morton's wrongful conviction and nearly 25-year imprisonment for his wife's murder.

And:

He contends the lawyers have no legal authority to question him and that they are attempting to conduct an unauthorized investigation.

Davis wrote that his recollection of the trial was "very limited after 25 years." He said he had no memory of any conversation about Morton's son seeing the killer or of any issues relating to credit cards or checks.

But in the motion, Davis offered an apology to Morton for the years he spent behind bars for a crime he did not commit, and he offered to sit down with Morton and his lawyers informally and tell them everything he remembers about the case. "Movant's words can never give back to Michael Morton his lost life, his lost wife, nor his son, and a simple apology is not sufficient but that is all Movant has to offer at this late date," Davis wrote. In a letter to Morton's lawyer, Davis asked them to withdraw the subpoena.

Further, Davis argued that Morton's lawyers' investigation of prosecutorial misconduct in the case is moot because the Texas Court of Criminal Appeals has already exonerated him.

Finally for today's post, Houston Chronicle columnist Patricia Kilday Hart writes, "Apology just not enough for exonerated man," for the Houston Chronicle.

Morton's immediate nightmare may be over, but the courtroom drama rages on. Since his release, Morton's appellate attorneys have pressed for an investigation into how crucial evidence that pointed to their client's innocence was never shared with his original trial defense team - or his jury. This week, the State Bar of Texas, which has authority to discipline lawyers, announced it also would review the facts surrounding the Morton case.

What both Morton's lawyers and the State Bar want to know is this: Did Williamson County Judge Ken Anderson, the district attorney at the time of Morton's prosecution in 1987, or Georgetown attorney Mike Davis, who was Morton's prosecutor, intentionally withhold facts that demonstrated the former grocery store manager's innocence?

And:

Davis, the motion says, "would like to personally explain to Mr. Morton (his) deep sorrow and regret that Mr. Morton spent 25 years in prison for a crime he did not commit."

The former prosecutor goes on to say that he "can never give back to Mr. Morton his lost life, his lost wife, nor his son, and a simple apology is not sufficient but that is all (he) has to offer at this late date."

He also offers to "sit down with Mr. Morton and his counsel on an informal basis and tell him everything he remembers about this case."

Apologies carry a lot of healing power. But Morton, Raley said Thursday, wants something even larger: "Michael has asked us to try to do whatever we can to prevent this from happening to another innocent man."

That cannot be accomplished without a serious and thorough investigation into the entire Morton saga.

Earlier coverage of Michael Morton's exoneration begins at the link.

Texas Bar Examining Morton Case

"State Bar of Texas, in rare move, launches Morton investigation," is the title of Chuck Lindell's report in today's Austin American-Statesman.

The State Bar of Texas is investigating actions taken by trial prosecutors in the 1987 wrongful conviction of Michael Morton, an official said Wednesday.

The bar took the rare step of acknowledging an ongoing disciplinary investigation because of the attention Morton's case has received since mid-August, when his lawyers announced that DNA tests showed another man killed his wife, Christine, in their Williamson County home.

Morton was freed Oct. 4 after serving almost 25 years in prison, and the state's highest criminal court later proclaimed his innocence and tossed out his murder conviction and life sentence.

"We decided, because of the high-profile nature of the thing, that we were going to tell the public that we were looking into it," Maureen Ray, with the bar's office of chief disciplinary counsel, said Wednesday.

Also Wednesday, the former district attorney who prosecuted Morton, Ken Anderson, filed a motion to quash a subpoena forcing him to testify under oath about allegations that he improperly hid evidence favorable to Morton.

Morton's lawyers are set to depose Anderson, now a district judge in Georgetown, on Oct. 26. However, through his attorney Mark Dietz, Anderson said District Judge Sid Harle lacked the jurisdiction to issue the subpoena and that he was not provided 10-day notice as required by court procedures.

Morton's lawyers declined to comment on Anderson's motion. Anderson also has declined to comment, saying he could not discuss a pending case.

The State Bar of Texas, which licenses and disciplines state lawyers, began the Morton investigation on its own initiative — also a relatively rare event in the complaint-driven grievance process against lawyers.

Ray said she could provide no other details, including who is the target of the investigation or how far the investigation has progressed.

But Morton's lawyers have filed court documents that include accusations of professional misconduct against Anderson and former assistant district attorney Mike Davis, now a Round Rock lawyer, for allegedly withholding evidence that could have helped establish Morton's innocence.

And:

Available sanctions include disbarment, suspending a law license for a set time or placing a lawyer on a form of professional probation. The bar also can issue a public reprimand or a private admonition.

The state bar action becomes the fourth investigation related to the Morton case.

Earlier coverage of Michael Morton's exoneration begins at the link.

Texas Lawyer Sued by State Bar Over Dealings With Exonerees

"Lawyer for Texas Exonerees Faces Misconduct Suit," is the title of Jeff Carlton's AP report this morning.  It's via Law.com.

The State Bar of Texas has filed a lawsuit against an attorney who collected millions of dollars from wrongly convicted ex-inmates, saying he committed professional misconduct by charging fees that were illegal and unconscionable.

Lubbock attorney Kevin Glasheen has been credited by lawmakers and advocates as the driving force behind a 2009 law that made Texas the most generous state in the nation in compensating the wrongly convicted. He has said he acted appropriately in charging his clients a 25 percent contingency fee.

But the Bar's disciplinary counsel office found evidence Glasheen overcharged his clients or charged fees that violate the Bar's professional code of conduct, Bar spokeswoman Maureen Ray said Tuesday. It filed the lawsuit in an effort to sanction him.

If a court determines Glasheen committed misconduct, he could face punishments ranging from a public reprimand to disbarment.

The State Bar filed the lawsuit last week in Lubbock County but asked the Supreme Court of Texas to assign a state judge from another district to handle the case. Glasheen had asked the State Bar to file the lawsuit in open court, rather than conduct a private evidentiary hearing.

"The judicial review of these complaints gives them more careful scrutiny, more careful examination," he said.

Glasheen, who represents 15 exonerated inmates, has collected about $5 million in fees from his clients. He kept $3.5 million for his firm and paid the rest to Jeff Blackburn, the chief counsel for the Innocence Project of Texas.

The windfall came after Glasheen lobbied the Texas Legislature two years ago to pay exonerees $80,000 for each year they were wrongly imprisoned, plus a lifetime annuity. The most recent exoneree in Texas, Cornelius Dupree, served 30 years in prison for a sexual assault and robbery he did not commit. Under the new law, he is eligible to receive a $2.4 million lump sum, plus the annual payment.

Glasheen convinced his clients to hold off on lawsuits and instead pursue the state compensation, ensuring a quicker and more certain result. He then took 25 percent of what they received.

Two former clients who spent decades in prison for crimes they did not commit, Patrick Waller and Steven Phillips, have since sued Glasheen, arguing his fees were excessive because they hired him to be their lawyer -- not their lobbyist. Phillips said Glasheen has tried to charge him $1 million, even though the attorney never filed any court motion on his behalf.

"It sucked the life out of me," Phillips said. "There could be some sort of reasonable fee for lobbying. The gist of my complaint is I didn't hire him to lobby. I hired him to sue the city of Dallas."

And:

Randy Turner, who sued Glasheen on behalf of Waller and Phillips, said his clients are grateful for the state compensation money. But he called the fees "grossly unfair" and "obscene."

"It makes me sick to my stomach," Turner said.

Earlier coverage of the issue begins with the post, "Profiteering at the Expense of the Exonerated or Cost of Business?"

Rick Casey on Prosecutorial Misconduct and Anthony Graves

"My fantasy: Siegler puts DA on trial," is the title of his column in today's Houston Chronicle.

The import was lost on much of the statewide press corps attending the press conference in Brenham on Thursday, but the jaws of some Houston reporters dropped when former Harris County prosecutor Kelly Siegler described another prosecutor of handling a death penalty case "in a way that could best be described as a criminal justice system's nightmare."

Siegler was considered among the most aggressive prosecutors in a hang-'em-high Harris County stable.

So when she said a district attorney "absolutely" committed prosecutorial misconduct in the capital murder trial of Anthony Graves and called it "the worst I've ever seen," those who knew her felt the impact.

Here's my fantasy: Kelly Siegler prosecuting former Washington and Burleson counties DA Charles Sebesta for his egregious behavior in putting an innocent man on death row for 12 years and behind bars for another six after a federal appeals court overturned his conviction because of prosecutorial misconduct.

It won't happen.

That's not because evidence is lacking. The federal court found that Sebesta pressured two witnesses to testify falsely against Graves and didn't disclose, as required by law, statements by witnesses that would have helped Graves' defense. Siegler said Sebesta fabricated evidence, and she called Graves "an innocent man."

A creative prosecutor could fashion those and other alleged actions into a variety of chargeable crimes, but none would survive the statute of limitations 16 years later.

And:

That leaves the State Bar. Prosecutors can be sanctioned for violating professional ethics.

It happened to the prosecutor in the infamous Tulia drug cases that sent 46 people to jail on drug charges ginned up by an informant known by the DA to have committed perjury during the trial.

Likely safe

That DA was tried by the State Bar and punished with two years of probation. But even that punishment was suspended so that he could continue practicing, as long as he behaved.

About a year ago, a bar official at my request asked regional directors by e-mail if they knew of any other sanctions ever levied on prosecutors. None responded.

Sebesta is safe from even this unlikely risk, since the Bar too has a five-year statute of limitations. (Houston attorney Bob Bennett filed a grievance against Sebesta in the Graves case in 2007, but it was dismissed, he believes, without even a secret hearing before a bar ethics panel.)

Sebesta says he did nothing wrong. I only wish he could have his day in court.

Earlier coverage begins with this post.

Friday

I will be at the Bill of Rights Course today.  The CLE program is cosponsored by the Individual Rights and Responsibilities Section and the State Bar of Texas.

Please take the opportunity to visit some of the wonderful sites in the left-column webroll.

I'll post a version of my presentation on Methods/Procedures to Obtain Compensation for Wrongful Convictions.

At the Bar

Rick Casey's column in today's Houston Chronicle is, "The coddled lawyers of our fair state."

Criminal defense attorneys will tell you that the most important question to ask a potential client is not whether he is innocent or guilty.

It's how much money does he have.

Houstonian Brisby Brown has learned that it might be useful to turn the tables.

Brown sat in jail for about 18 months on drug charges as, he claims, his attorney pressured him to plead guilty while refusing to look at evidence showing his innocence. Only on the day a jury was being selected did the lawyer send an investigator to the scene of the alleged crime, he said in a complaint to the State Bar.

Apparently when prosecutors got around to examining the evidence, they weren't impressed. They dropped the charges.

In addition to filing a complaint with the Bar, Brown engaged an attorney to sue his defense attorney for malpractice. But the attorney, who would be paid from the winnings, dropped the matter when he learned that the defense attorney had no malpractice insurance.

A jury might have awarded Brown a nice chunk of money for sitting in jail needlessly, but it would be hard to collect that money from an uninsured lawyer, and the new lawyer didn't feel he could afford to spend a lot of time on the case with little chance of getting paid.

So before hiring a lawyer, you may want to ask if he or she has malpractice insurance.

But asking such a question can feel awkward, and one lawyer I talked to said it could discourage a lawyer from taking your case.

That's a good argument for why the Texas Supreme Court, which makes ethical rules for lawyers, should have joined a growing number of states in requiring lawyers to disclose whether they carry malpractice insurance.

And:

In a news release, the Supreme Court justified its decision by saying that nobody clamored for the rule at public hearings.

But according to Austin attorney Charles Herring, who has written a book on legal ethics, “25 of 29 states that have addressed the issue have adopted such a rule.”

What's more, the Texas Supreme Court has already issued rulings relieving two entire bodies of lawyers from much exposure for malpractice.

In a 1995, the Supreme Court considered the case of a woman who accepted a plea deal over a white-collar crime. Only later did she learn that her attorney had not informed her of an offer by federal prosecutors not to seek her indictment if she agreed to testify against associates who were more culpable than she was.

The Supreme Court ruled that anyone convicted of a crime couldn't sue their attorney, no matter how bad the representation, until they had their conviction overturned. It would, the court said, be bad public policy to allow criminals to shift the consequence of their crime to their lawyers.

Texas Office of Capital Writs Searching for Director

The Office of Capital Writs, created by the Texas Legislature in 2009, is on about looking for a director.  Here's the posting:

Job Posting:  Director, Texas Office of Capital Writs Brand new Texas Office of Capital Writs seeks a Director.  The state-funded office, with a $1 million approximate annual budget, will be based in Austin.  This is a capital post-conviction office, charged with representing death sentenced inmates in state post-conviction habeas corpus and related proceedings.  The Director will be responsible for opening the office, hiring, and supervising the staff and the litigation.  This is an extraordinary opportunity to make a difference in Texas.

By the terms of the legislation establishing the Office, the Director must “exhibit proficiency and commitment to providing quality representation to defendants in death penalty cases, as described by the Guidelines and Standards for Texas Capital Counsel.”  See the legislation establishing the Office; 69 Tex. B. J. 966 (2006) (Texas Guidelines and Standards for Capital Counsel).  

Desired Qualifications. Membership or eligibility for admission to the Texas Bar;. Significant experience in the defense of death-sentenced inmates;. Qualified to serve as lead counsel in a Texas capital habeas case (see http://www.courts.state.tx.us/courts/ajr.asp );. Commitment to the highest level of quality representation of indigent criminal defendants;. Experience training and supervising other attorneys; . Experience managing and administering an office, ideally in a public defender agency setting (e.g., hiring staff, budgeting, financial reporting, creating effective practices and policies, and dealing with other agencies whose work intersects with that of the Office, such as the courts).. Familiarity with and connection to the national capital defense community, such that s/he will have immediate and ongoing access to the developments and resources necessary to facilitate the highest quality legal representation;. Experience with and commitment to a client-centered approach; . Experience with and commitment to a team-based approach that includes attorneys, mitigation specialists, investigators, experts, and staff; and. Experience and training concerning mental health issues that commonly arise in quality capital defense litigation;

Salary:  $89,682 to $147,976, DOE.

How to Apply:
By March 1, 2010, Applicants should submit Application, a statement of interest and a resume / CV (with references noted) to: Maurie Levin at mlevin (at)law (dot) utexas (dot) edu.

Earlier coverage of the Office of Capital Writs begins with this post.

Emily Jones, 1949 - 2009

The State Bar of Texas has announced that Emily Jones has died after a five-year battle with cancer. During her career in public and private law practice and as a program director at the Bar, she worked to expand and improve access to legal services.  LINK

Emily C. Jones, former director of Texas Lawyers Care, the State Bar’s legal services/pro bono support, and former director of the Texas Access to Justice Commission, passed away early this morning after a five-year battle with multiple myeloma, a form of blood cancer. Known as a feisty and strong-spirited advocate for access to justice initiatives in Texas, Emily committed her entire career to helping low-income Texans gain access to legal assistance. More than that, Emily led by example — even while facing personal health obstacles — inspiring other Texas attorneys to do pro bono work.

Emily began her career as a legal aid attorney, working with East Texas Legal Services right out of law school. She later went into private practice as a civil rights attorney. Emily left law for a while, teaching at the University of Texas at Austin. She joined the State Bar in 1996 as a program attorney with Texas Lawyers Care and became the first executive director of the Texas Access to Justice Commission when it was created by the Supreme Court of Texas in 2001. In addition to her duties as director of the Commission and Texas Lawyers Care, Emily continued taking pro bono cases.

And:

In May, the Texas Access to Justice Commission honored Emily with the inaugural Emily C. Jones Lifetime Achievement Award for her work. The award recognizes an outstanding individual whose extraodinary spirit — like Emily's — and demonstrated commitment to legal services has improved society and inspired others.

New Death-Penalty Law Raises Concerns

That's the title of Sara Israelsen-Hart's report in Utah's Deseret News.  LINK

There's a new rule when it comes to aggravated murder, and one attorney is arguing that using it against a father charged with the death of his 4-month-old baby is unconstitutional.

Victor Gardea, 23, of Provo is charged with aggravated murder for the death of his baby girl, Jasmin, in September.

Gardea told police he had been up all night helping his wife study and when Jasmin woke up early crying, the frustrated dad struck her in the abdomen and head with his closed fist, defense attorney Richard Gale wrote in a recent motion.

But when Gardea realized how severely she was injured, he called 911 and tried to administer CPR until paramedics arrived, Gale said.

Under the older murder statute, prosecutors would have to prove that Gardea intentionally or knowingly caused Jasmin's death.

Gale doesn't believe they could do that.

"Gardea's behavior shows that he did not know his actions would cause his child's death," Gale wrote. "Rather the evidence presented at the preliminary hearing shows, at best, Gardea's recklessness."

And proving recklessness would mean a lesser charge, not a capital offense punishable by the death penalty.

However, the new subsection to the murder law gives prosecutors another option.

It was adopted in response to the death of 10-year-old Shelby Andrews of Syracuse, who was repeatedly abused then locked in a tiny closet by her stepmother and father, where she suffocated to death in August 2006.

But prosecutors couldn't impose the death penalty because there was no "intent to kill Andrews," Gale wrote in his motion.

So Andrews' local representative sponsored a bill that now allows prosecutors to charge someone with capital murder even without an "intent to kill."

Now, if during a specific crime — in this case child abuse — the suspects show "reckless indifference to human life," and causes the death of someone, it can be a capital felony.

That's what Gardea is charged under, and at a preliminary hearing in January, 4th District Judge David Mortensen bound his case over on both the new and old code.

Gale is asking that the decision be thrown out. If it's not, he said they'll most likely appeal the issue.

More Blawg Resources

Fresh on the heels of Blawg Review's, Simply the Best, the October Texas Bar Journal also has two pertinent articles, "Internet Resources for Texas Criminal Lawyers," by Mark Steiner, which kindly notes this site.  Judge Cathy Cochran of the Texas Court of Criminal Appeals has, "Surfing the Web for a 'Brandeis Brief' -- The Internet and Judicial Use of Legislative Facts."

Policing Attorneys

Yamil Berard has an article and sidebar in the Fort Worth Star-Telegram, "Public left in dark on accused attorneys."  While the article is focused on consumer protection issues, poor performance by lawyers has been a major factor in many controversies involving Texas capital cases.  Studies have repeatedly found a high percentage of attorneys appointed to represent death row defendants and inmates had been sanctioned by the State Bar, sometimes repeatedly.  As you'll see from the article, that's a highly unusual distinction.

Dallas attorney Bruce Patton has a clean disciplinary record, according to the State Bar's Web site, which provides profiles of the state's 80,000 or more practicing attorneys. But consider this before you hire him to draft your will: Patton is in state prison after being convicted of a felony two years ago.

Would you be curious to know whether the personal-injury lawyer you're interested in hiring is careful not to bill you a dime too much? The firm of John O'Quinn, one of the state's wealthiest personal-injury lawyers, was ordered by an arbitration panel this summer to pay $35 million to former clients who say he overbilled them for expenses, but no mention of that order is on the Bar's Web site.

Then again, the Bar forewarns that it provides "no warranty" that its information is complete and accurate.

Key aspects of the oversight system for Texas lawyers could leave the public vulnerable, a Star-Telegram review found. The Texas Legislature and Supreme Court, which share a role in establishing ethics rules for attorneys, have made it so that the public stays in the dark about thousands of lawyers accused of misconduct. Bar confidentiality rules ensure that many sanctions are private and that lawyers accused of felonies can continue practicing. The Bar doesn't require attorneys to report their criminal record or malpractice suits.

Bar officials say that protecting the public is an important role for the Commission for Lawyer Discipline, the Bar's primary disciplinary arm. "The very big concern is making sure that we protect the public from lawyers that are abusing the public trust," said Betty Blackwell, chairwoman of the commission.

And:

To critics, the Bar's concern with protecting its own has resulted in a system that gives attorneys the upper hand. They say that's why the Bar tallies thousands of fewer grievances from the public than 10 years ago, and fewer lawyers are disciplined, even as the number of licensed lawyers has grown.

Ten years ago, one in 120 lawyers was disciplined; today, roughly one out of every 250 is disciplined.

Bar stats show that most grievances are dismissed; of those that aren't, most lead to no sanctions. When a lawyer is sanctioned, the Bar rarely publicizes its disciplinary actions except in publications for lawyers, such as the Texas Bar Journal.

"Nobody reads it," said Michael K. Moore, associate professor of political science at the University of Texas at Arlington. The public can obtain documents related to findings about a sanction, but attorney profiles on the Bar's Web site don't state that.

As a result of the gaps, it's up to potential clients to conduct background checks, an overwhelming task if you need an attorney fast, say consumer advocates and legal-reform organizations.

"Essentially it's like throwing a dart on the wall and picking somebody on that basis," said Steve Hall, executive director of the StandDown Texas Project, an Austin-based organization pushing for changes in the criminal-justice system.

The consequences of a bad choice are grave: "In civil matters, lawyers' mistakes can really haunt a person and damage a person's life," Hall said. "When you look at a criminal matter ... the job a lawyer can do really can be life or death."

And:

Ask Moore, who is also associate provost at UT-Arlington. He and a committee of criminal-justice experts studying legal services for the poor filed a complaint against a lawyer who Moore said had made a number of mistakes involving a Death Row client.

Their grievance was dismissed. The Bar won't tell him what happened, Moore said.

"We were hoping that if we filed a grievance or two and the Bar decided to sanction the guy, other lawyers would be taking their job more seriously," he said. "It didn't work out that way."

The sidebar is, "Panel seeks changes in Bar's disciplinary system for lawyers."

"I haven't seen the Bar make any substantive changes to eliminate the rich-white-man rule," said Larry Doherty, an attorney for 30 years who was chairman of his region's grievance committee in the 1980s.

Critics have seen bias reflected in the case of Terry McEachern, the Swisher County prosecutor in the high-profile Tulia drug-sting case. He misled juries about the credibility of a witness whose testimony was used to indict numerous black residents. The governor issued pardons, and Texas eventually awarded a multimillion-dollar settlement to 45 defendants.

The Bar fined McEachern $6,225 and gave him a probated suspension of his law license for two years, which allowed him to continue practicing.

It contains a link to the Grievance Oversight Committee of the State Bar of Texas website.

Some Notes on the ABA Annual Meeting

I'm back in Austin following the ABA Annual Meeting.  Justice Stephen Breyer spoke on Saturday afternoon.  Tony Mauro, Legal Times' Supreme Court correspondent, has "In Address to ABA, Justice Breyer Reflects on 'Difficult Year," at Law.com.

As unhappy as he was about being on the losing side in so many cases last term, Supreme Court Justice Stephen Breyer said Saturday his faith in the legal system and the rule of law is undiminished.

"I had a difficult year," Breyer said before the opening assembly of the American Bar Association's annual meeting in San Francisco. "I was in dissent quite a lot, and I wasn't happy." With Chief Justice John Roberts Jr. and Justice Samuel Alito Jr. on the Court, conservatives won almost all the 5-4 opinions last term, leaving Breyer often in the minority.

Breyer noted that he wrote an impassioned 77-page dissent in June in last term's school race cases, criticizing the majority for taking a wrong turn on civil rights. After a summer of reflection, Breyer told the association, "I wish I had won," but he said he also thinks, "not a bad system."

The nation is one of "300 million people and 600 million opinions," Breyer added, and his can't be in the majority all the time. What makes him still proud of the system is that disputes over race and other deeply emotional issues are worked out "in the courts, not in the streets."

Breyer made his personal observations to underscore his charge to the lawyers to spread the word about judicial independence and the rule of law. Even when the Court makes unpopular decisions, Breyer said, the nation abides by them. Even in the Florida 2000 election case of Bush v. Gore, Breyer noted, "there were no paratroopers, no rocks. ... People accepted it."

But the story of the American legal system needs to be told and retold, Breyer said, because it "floats on the sea of public acceptance." He said he worries that the busy general public does not see that it has a direct stake in the preservation of an independent judiciary, which contributes to economic stability and the protection of minorities. The message needs to be transmitted to the next generation, Breyer said.

Bob Egelko of the San Francisco Chronicle also covered the speech in, "Breyer: Public support key to judiciary future."

The future of America's judiciary as an independent institution depends on the public's willingness to support courts that issue controversial or even unpopular rulings, Supreme Court Justice Stephen Breyer told the American Bar Association on Saturday evening.

"This constitutional system floats on a sea of public acceptance,'' the San Francisco native, a 1994 appointee of President Bill Clinton, said in a keynote speech in Davies Symphony Hall at the annual meeting of the 413,000-member lawyers' organization.

While judges must disregard public opinion in their rulings, Breyer said, "if the public in a democracy does not support that institution, then you don't have that independent judiciary.''

And:

When the Supreme Court ruled in the 1830s that the state of Georgia had no power to seize land from the Cherokees, Breyer noted, President Andrew Jackson defied the ruling and ordered in federal troops, ultimately sending the Indians on the Trail of Tears to Oklahoma. But when the court unanimously ordered Arkansas in 1958 to allow black children to attend all-white schools in Little Rock, President Dwight Eisenhower sent in paratroopers who escorted the youngsters past hostile crowds into the schoolhouse.

"That was a great day for law,'' Breyer said.

Also on Saturday, the State Bar of Texas hosted a reception.  Current President Gib Walton and Immediate Past President Martha Dickie were both present.  The ABA Individual Rights and Responsibilities Section's Thurgood Marshall dinner honored Judge Matthew J. Perry of South Carolina.

 

SB 1655 Facing Deadlines

The bill, which would create a specialized public defender office to handle capital habeas cases, was pulled from the House floor yesterday.  It faces tight deadlines for further consideration.  Chuck Lindell of the Austin American-Statesman has, "Death row appeals bill derailed."

Objections on the House floor by Rep. Robert Talton, R-Pasadena, bounced the bill back to the House Judiciary Committee, where a hastily called evening meeting attempted to revive it in the waning days of the legislative session.

Committee members voted unanimously to re-approve the bill, and Chairman Will Hartnett, R-Dallas, gave the measure a "better than even" chance of reaching a floor vote Monday or Tuesday, the deadline for the House to consider Senate bills.

"It's still got some time," Hartnett said.

The measure, Senate Bill 1655, would create a state office of lawyers and investigators to help death row inmates file petitions for writs of habeas corpus, considered the most important of two appeals offered to the condemned. Writs are meant to ensure that the death penalty was legally and properly imposed by reinvestigating every aspect of the sentence, from trial witnesses to lawyer conduct.

However, an October 2006 examination by the American-Statesman found that court-appointed Texas lawyers regularly submitted habeas petitions that were incomplete, improperly argued or incoherent. Many petitions were poorly copied from previous appeals or showed little thoughtful effort.

The low-quality work was tolerated by the Texas Court of Criminal Appeals despite a 12-year-old state law requiring the court to ensure that death row inmates receive competent legal help on habeas petitions.

Legislation creating the Office of Capital Writs cleared the Senate 30-0 in mid-April, calling for a professional cadre of lawyers and investigators to handle the appeals for indigent death row inmates. The office would be run by a director hired by the Court of Criminal Appeals from a list prepared by an outside committee.

Sen. Rodney Ellis, a Houston Democrat who co-sponsored the bill with Sen. Robert Duncan, R-Lubbock, has called habeas review a safety net ensuring that the right person was convicted and sentenced to death.

But Talton, after consulting with the Harris County district attorney's office, moved Thursday to derail the bill by raising a point of order, a parliamentary move that returned the measure to committee. With the session due to end May 28, any such delay is potentially fatal to legislation.

And:

Martha Dickie, an Austin lawyer and president of the State Bar of Texas, said the bill is desperately needed to improve the state's judicial system. The bar endorsed the Office of Capital Writs after its own examination found the state writ system to be seriously flawed.

"This is really about one of the fundamentals of the judicial system: access to competent counsel," Dickie said. "It's not a bill for or against the death penalty."

House approval is expected if the habeas bill reaches the House floor.

"I expect to be able to pass it, but the death penalty always raises a lot of special attention and passion," Hartnett said. "Expect a very stimulating debate."

Habeas Reform in Texas

Today's Austin American-Statesman has an editorial, "Condemned should know that justice was served."

The State Bar of Texas knows many of those appeals lawyers are not up to the job of representing someone facing death, but says it doesn't have the resources to evaluate the abilities of the lawyers on the list. Worse, the Court of Criminal Appeals generally accepts even the sloppiest work as adequate for condemned inmates.

It's a system that needs to be scuttled and replaced with one providing adequate defense for indigents facing execution. Senate Bill 1655 by Sens. Rodney Ellis, D-Houston, and Robert Duncan, R-Lubbock, is a good effort to repair a broken system.

Their bill would create a committee to set standards for attorneys filing writs for condemned inmates and establish the Office of Capital Writs to represent indigent defendants applying for writs of habeas corpus. Those writs are where inmates raise issues of new evidence, prosecutorial misconduct or ineffective defense. It is often the last hope for condemned prisoners.

In their statement of intent accompanying SB 1655, Duncan and Ellis wrote, "The performance of Texas capital habeas lawyers is neither regulated nor monitored by any court or government agency. Thus, if the habeas representation amounts to the functional equivalent of a lawyer sleeping through the trial, the lawyer is nonetheless reappointed to more cases and the death-sentenced inmate has no remedy or recourse."

Last fall, American-Statesman writer Chuck Lindell found that some appellate lawyers did little or no investigation, filed appeals copied from previous, unrelated cases and filed claims that had been repeatedly denied as grounds for appeal.

An Office of Capital Writs would help solve that problem with a staff of qualified, competent attorneys to represent indigent capital murder defendants in their habeas writs. A fiscal note accompanying the bill calls for only 4.5 new employees for the office, a number that seems way too low for such important work.

But it's a good start. The bill also provides that when a staff attorney is unavailable or can't take a case for other reasons, only competent, experienced outside counsel would be hired and paid to represent the inmate. The current list of lawyers, Ellis and Duncan noted, includes those who have been accused of neglecting clients, have no experience with capital murder cases, have no experience in habeas corpus writs, have mental illness or abandoned their death row clients.

Earlier posts are here.

ABA e-Journal Highlights State Bar Guidelines

The current American Bar Association e-Journal has an article on the Court of Criminal Appeals' new amended rules for appointment of habeas attorneys and the State Bar of Texas Guidelines and Standards for Texas Capital Counsel which were adopted last year.  The article is titled, "Texas Sets New Standards for Habeas Attorneys."

Cynthia Hampton, assistant executive director and general counsel of the Texas Criminal Defense Lawyers Association, says the rule is a positive move, but "only a first step."

"Much more needs to be done," she says. "Six hours of [continuing legal education] with an emphasis on death penalty training is all that is required other than a bar card to get on the list. There is no mention of how many criminal appeals, death penalty trials or capital writs the appointee must have under his or her belt before becoming eligible. This lack of initial qualifications and training is clearly deficient."

ABA President Karen Mathis also praises the new rules, with a caveat.

"The ABA has worked for many years to ensure that only qualified and skilled attorneys are appointed to represent death-sentenced prisoners," Mathis notes. "The decision of the Texas [court] to remove attorneys who perform with ‘substandard proficiency’ from the list of attorneys eligible for future appointments is a good one so long as the new standards for performance are meaningful."

Mathis points to the Guidelines and Standards for Texas Capital Counsel adopted last year by the State Bar of Texas, as "an excellent model for performance standards the [court] may wish to consider." The Texas guidelines are a modification of the ABA’s Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases.

And:

Many believe the only real answer is the creation of a state-funded office that represents death-row inmates.

"My opinion is that we need a statewide defender for these kinds of cases," says Philip Wischkaemper, capital assistance attorney with the Texas Criminal Defense Lawyers Association. Wischkaemper notes that fewer than the average 15 annual cases have gone to death row in the last two years, so "it would not be a significant burden on taxpayers to fund such an office over and above what they already spend. It is a small price to make sure we don’t kill another innocent man."

Bright agrees: "A far better approach is to have an office made up of lawyers, investigators, social workers and mitigation specialists that specializes in capital post-conviction work. This is the approach in just about every state that I know of."

State Bar Appoints Habeas Task Force

State Bar of Texas President Martha Dickie has appointed a Task Force on Habeas Counsel Training and Qualifications.  Texas Lawyer has a brief in its weekly Inadmissible column.  LINK

Concerned that some lawyers who represent death row inmates in state habeas corpus proceedings may be filing writs that aren't up to standards, State Bar of Texas President Martha Dickie has appointed an 11-member Task Force on Habeas Counsel Training and Qualifications. Dickie, a partner in Austin's Akin & Almanza, asked her appointees — five judges, five lawyers and one public member — in an Oct. 27 letter to conduct a systemic examination of the qualifications and necessary experience for lawyers in death penalty cases.

Among other matters, Dickie wants the task force to examine appropriate responses of the bench and the bar in monitoring and addressing competency and qualification issues in this area and the role of the courts and the Bar's disciplinary process in addressing problems. Dickie says the Bar's Committee on Legal Services to the Poor in Criminal Matters has been concerned about the matter. "Nobody thinks it's a good idea for people sentenced to death to be represented inadequately," Dickie says.

Dickie appointed criminal-defense attorney F.R. "Buck" Files, a shareholder in Bain, Files, Jarrett, Bain & Harrison in Tyler, and 147th District Judge Wilford Flowers of Austin as co-chairs of the task force. Flowers did not return a telephone call seeking comment before presstime on Nov. 2. Files says he's hopeful the task force can hold its first meeting by early November but has no specific plan for the group to consider. "I don't have any preconceived opinions about where we are going and how we're going to get there," Files says. Dickie says she hopes the task force will be ready to make a recommendation to the Bar's board of directors at its April 2007 meeting in Bastrop.

Expert Witnesses

The Texas Bar Journal has a special section on expert witnesses in the September issue.  Two articles deal with death penalty issues.

First, "Claims of Mental Retardation in Capital Litigation," by William Lee Hon, the District Attorney-Elect of Polk County.  Hon participated in the 2002 Johnny Paul Penry sentencing trial.  The death sentence handed down in that proceeding was overturned by the Texas Court of Criminal Appeals in October 2005; the third time a death sentence against Penry had been overturned due to improper jury instructions. LINK

With the possible exception of the insanity defense, there are likely to be very few legal proceedings in the criminal justice system which are as dominated by expert testimony as a capital murder prosecution where mental retardation is asserted as a bar to the death penalty. From the prosecution’s perspective, while expert testimony will be important, it is the “real world data” concerning the defendant’s life, background, and ability to function independently in society that will ultimately be the most critical evidence in confronting such a claim. The acquisition of such evidence can be tedious, exhausting, and expensive, but is nonetheless essential to the effective prosecution of cases where the death penalty is sought.

The second article of note is, "The Question of Future Dangerousness of Capital Defendants," by A. P. Merillat, a Texas law enforcement official.  LINK