New Study: Widespread Incompetence in Texas Death Penalty Appeals Undermines Reliability of Capital Punishment System. State with Busiest Death Chamber at Risk of Executing the Innocent Legislative Fix Required, says Study's Authors

Austin, TX - A comprehensive study on the Texas death penalty post-conviction process reveals that state habeas cases were repeatedly mishandled by court appointed attorneys. The new study, "Lethal Indifference: The Fatal Combination of Incompetent Attorneys and Unaccountable Courts in Texas Death Penalty Appeals, " produced by the Texas Defender Service, examines hundreds of death penalty state habeas petitions filed since 1995. The report sheds light on the role of the Texas Court of Criminal Appeals (CCA) in appointing inadequate attorneys, including those with no previous experience in death penalty cases. The report concludes that a high number of death row inmates are being propelled through the state habeas corpus proceedings - a vital safety net designed to prevent wrongful executions and the only stage in which new claims of innocence, prosecutorial misconduct, or ineffective assistance of trial counsel can be raised - with unqualified, irresponsible, or overburdened attorneys. Incompetent state court lawyers who fail to raise meritorious claims render federal review a meaningless formality because federal courts are limited to reviewing only those claims that were first presented in state court.

In 28 percent of the habeas applications filed since 1995 - when the Texas Legislature created the current process of providing counsel to death row inmates in habeas cases - the court appointed attorneys raised only claims that cannot be addressed by the courts in habeas corpus proceedings.

In 39 percent of the cases, appointed counsel presented no materials to support the claims. Because state post-conviction proceedings are limited to claims based on facts and evidence found outside the trial record, the result of these inadequate applications is that in over one-third of the cases, the appointed lawyer presented nothing in the habeas petition that the courts could review.

Appointments in capital habeas cases must be made from a list of CCA-approved lawyers. Included on the current list of lawyers authorized by the CCA are three prosecutors, one employee of the Texas Department of Criminal Justice, numerous lawyers who have been disciplined by the State Bar and a lawyer who is dead.

"In many cases, the appointed lawyer filed an appeal that is the functional equivalent of a blank piece of paper, " says Jim Marcus, Executive Director, Texas Defender Service. "The state habeas process is where the innocent or those undeserving of the death penalty are discovered, thus short-circuiting these proceedings with lawyers who fail to do meaningful work for their clients undermines the integrity and reliability of the system. Now, when Texas wrongly sentences a person to death - which has happened in at least seven cases since 1973 - there is little-to-no chance anyone will discover it before it is too late, if ever. "

Texas leads the nation in executions and is responsible for more executions this year (31) than all other states combined. The next scheduled execution in Texas, on December 4, 2002, is that of Leonard Rojas, whose case exemplifies the systemic problem documented in report. The CCA appointed a mentally-ill lawyer who had never before represented a death row inmate in a habeas proceeding. At the time of his appointment, the State Bar of Texas had placed the lawyer on two probated suspensions from the practice of law in Texas. The State Bar imposed a third probated suspension two weeks after the lawyer's appointment. His discipline problems included neglecting a legal matter and having a mental health condition that affected his ability to practice law. The lawyer failed to properly investigate the case and filed claims that were non-reviewable in a habeas petition.

After the claims were rejected by the CCA, the lawyer abandoned Rojas, failed to seek appointment of federal counsel and thus, forfeited all federal review of the case. Because of the lawyer's incompetence, Rojas has been denied his one opportunity for full and fair review of his claims.

"We must exercise all due diligence to provide adequate and experienced counsel in capital cases to ensure accurate results and prevent the ultimate nightmare: the execution of the innocent, " says former Texas Court of Criminal Appeals Judge, Morris Overstreet.

The study's authors urge the Texas Legislature to create a remedy for inmates who received poor representation and to reform the appointment process, allowing only qualified attorneys to take state capital habeas cases in Texas.