Sharon Keller hits the trifecta

I recently introduced you to Justice Sharon Keller of the state Court of Criminal Appeals. She was in the news recently for suggesting that funds earmarked for legal representation of death row inmates be returned to the state to help alleviate the budget crunch. Before that, she was probably best known for her refusal to acccept exculpatory evidence in the case of Roy Criner.

Well, she's back in the news now that three of her court colleagues have criticized the full panel for allowing an inmate to be executed despite clear evidence that his court-appointed attorney was utterly incompetent. From the Chron story:

After upholding [Leonard] Rojas' conviction on his automatic direct appeal, the Court of Criminal Appeals in 1997 appointed a Fort Worth lawyer to file a habeas appeal. A habeas appeal is designed to raise claims not based solely on the trial record, and habeas counsel is required by law to conduct a thorough investigation.

The lawyer admitted in an affidavit he did no independent investigation beyond speaking with Rojas one time, reading the trial record and talking to one of the trial attorneys.

The lawyer also failed to take action that might have preserved Rojas' right to federal habeas review and did not even inform Rojas that his state habeas petition had been denied.

The attorney had received two probated suspensions from the State Bar of Texas. Two weeks after the Court of Criminal Appeals appointed him to represent Rojas, he received another probated suspension for failing to take care of his clients.

Last year, in a widely criticized opinion, the court ruled that habeas lawyers must be competent when appointed but need not represent the client competently. Price, Holcomb and Johnson also dissented in that case, with Price writing that competent counsel "ought to require more than a law license and a pulse."

The Austin American-Statesman article notes further that the attorney in question had never handled a capital case before and was having "personal and professional problems" at the time.

You really have to love the logic of "habeas lawyers must be competent when appointed but need not represent the client competently". I guess by that standard if you can drive a new car home, the dealership is off the hook forever, even if the car never starts again.

None of this bothers Keller, who's more upset that her colleagues aired dirty laundry than with the idea that justice is a process rather than a fill-in-the-blank form:

Keller, joined by Judges Mike Keasler and Cathy Cochran, took a swipe at her colleagues for releasing the dissent, noting that "any jurisdiction this Court might have arguably had over (Rojas') claims expired upon his execution."

Yes, God forbid we should ever look back at our actions and reconsider whether they really were the right ones to take. The next time I'm called in for an after-action review of a project at work, I'll just say that any jurisdiction my manager may have over me in this matter expired upon completion of my work. I'm sure they'll understand.

You may note that I haven't mentioned anything about Leonard Rojas or the crimes for which he was executed. Well, if these stories are accurate there's little doubt that he's guilty and unremorseful - in short, someone for whom little sympathy is warranted. That's not the point. The point is that death is, you know, final. If some enterprising law student were to come along and review Leonard Rojas' case, it wouldn't make any difference if she were to find a glaring procedural error, the kind of error that would normally force a new trial or even outright dismissal of the charges. That's because Leonard Rojas is now dead. The Court of Criminal Appeals allowed him to be executed without knowing or apparently caring if he really should be. If we can't be confident that every death row inmate has had a fair and full chance to appeal his verdict, then we can't be confident that only the guilty get executed. The fact that Rojas made it to the gurney without a real review of his case should be cause for consternation, not ass-covering.

The excuses that some of our state judges give as to why an incompetently represented defendant doesn't deserve any better - "Hey, he was competent when we appointed him, it's not my fault if he turned out to be a goober" - "OK, so his lawyer slept through parts of the trial, but how do you know they were important parts of the trial?" - are just pathetic. If we gave half as much consideration to ensuring fair representation as we do to coming up with these excuses, we wouldn't need the excuses.

If there's one good thing to come out of this, it's that some legislators are working to remove the task of appointing attorneys for these cases from the Court of Appeals. They've clearly shown they can't handle the responsibility.

Thanks to reader darms for the tip.

Posted by Charles Kuffner on February 14, 2003 to Crime and Punishment | TrackBack