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Cuts challenge new state office for death-row appeals

by Chuck Lindell, Austin American Statesman Staff

Published: 7:09 p.m. Friday, Dec. 31, 2010

Troubled by revelations of second-rate work by court-appointed attorneys, Texas legislators in 2009 created a state office to improve appeals on behalf of death-row inmates.

Now staffed with four lawyers and two investigators, the Office of Capital Writs is beginning work on its first cases - but it's facing an uncertain future.

Two rounds of budget cuts have already cost the office a part-time worker and prompted remaining staffers to cut corners by supplying their own ergonomic chairs, buying office supplies and traveling on the cheap by staying with friends or declining to be repaid for meals.

But additional budget cuts of 10 percent, likely to hit almost every state agency next year, could leave little choice but to lay off a lawyer or investigator. Such a reduction could jeopardize the agency's mission and the state's long-standing - but often broken - promise that no inmate will be executed without first getting help from a competent appeals attorney.

Sen. Rodney Ellis, D-Houston, co-author of the bill that created the office, said he will fight to keep the agency's "shoestring" budget intact.

"If Texas wants capital punishment, then it must pay the price to make sure that innocent people are not executed and capital trials are held in a constitutionally fair manner," Ellis said. This "is one of those prices we have to pay to keep the death penalty."

A 10 percent cut at the Office of Capital Writs would save less than $97,000 each year, or 0.000008 percent of the projected $24 billion shortfall in 2011-12.

But it would force the office into a difficult choice: Either lay off one employee, leaving a gaping hole in the staff, or accept fewer cases, said Director Brad Levenson. "Cutting staff is not what I want to do, but at the end of the day we have to have money for cases," he said.

Ellis thinks he has two strong arguments for the office.

First, it was created with the support of the governor's office, the Court of Criminal Appeals, the State Bar of Texas and deep bipartisan backing.

Second, any case dropped by the office would be farmed out to private-practice lawyers at up to $25,000 per case. "We can do it cheaper and better, but the office must be adequately funded for them to do their job properly," Ellis said.

But in the legislative session to begin Jan. 11, countless state agencies will be making similar pitches to save their budgets. Escaping cuts is going to be difficult for any agency. Doing so while helping death row inmates, rarely a legislative priority, would be quite a feat.

Pattern of shoddiness

Every Texas death sentence is followed by two appeals. The first, the direct appeal, is meant to ensure that no glaring errors were made during the inmate's trial.

The Office of Capital Writs was created to handle the second appeal - a petition for a writ of habeas corpus, designed to reinvestigate each case to make sure the right person will be executed, the wrong person won't be, and that the verdict was obtained without violating the U.S. and Texas constitutions.

But a 2006 American-Statesman series revealed a pattern of shoddy legal work - incomplete, incomprehensible petitions that were riddled with errors and devoid of investigation or thoughtful effort - that earned court-appointed lawyers up to $25,000 in taxpayer money to handle the habeas petitions for death-row prisoners.

Spurred largely by those stories, the Legislature created the Office of Capital Writs in 2009 to employ specialized habeas attorneys and investigators.

Levenson, the first hire, came from the Federal Public Defender's Office in Los Angeles, where he worked in the capital habeas unit. He also spent 11 years as a California deputy attorney general, gaining insight into a prosecutor's mind-set that is not normally available to defense lawyers.

"We were very impressed with his background \u2026 on both sides of the bar," said Judge Cathy Cochran of the Court of Criminal Appeals, which hired Levenson. "He came with a lot of ideas - how he would put the office together and how he would reach out to the defense bar, judges and prosecutors in getting the job done smoothly and fairly to all sides."

Levenson runs the Texas office on a public-defender model that stresses efficiency and economy. Instead of specializing, his two investigators examine both aspects of a capital punishment trial:

  • Guilt-innocence, where issues such as blood-splatter evidence and eyewitness identifications must be examined.

  • Mitigation, where jurors hear about mental disorders, childhood abuse or other factors that may persuade them to choose life in prison instead of execution.

Each lawyer also is expected to investigate by visiting the crime scene and meeting key witnesses, family members and trial attorneys.

It's the kind of legal work the Legislature had in mind in 1995 when it moved to speed the pace of executions by limiting death-row inmates to one habeas petition. In return, Texas promised to provide a competent habeas lawyer at state expense.

Some inmates got just that, but the list of state-approved habeas lawyers also included those who were poorly trained, unmotivated or too busy to do the job right, the Statesman found.

'We can do better'

Far from routine appellate work, habeas is a complicated, fast-changing area of law that favors specialists, Levenson said.

"It's not a place to learn," he said. "I believe we can do this work better than it's been done."

Levenson's agency, which opened in October in a generic Northeast Austin office park, has started on its first five cases. Several more are expected to arrive in January and February. Levenson figures the office can handle about 20 cases at a time - five petitions per attorney.

With death sentences on the decline thanks to the option of life in prison without parole, he supposed it would take several years before anyone had to worry about cases being turned away. But that limit may be reached much sooner if a 10 percent cut is added to the $75,000 the agency already lost this year, Levenson said.

At that point, district judges would fall back on the old system, choosing an outside lawyer from a list of approved habeas practitioners maintained by the state's nine regional presiding judges. Most lawyers identified by the American-Statesman as having provided questionable habeas work have been cut from the list - but not all of them.

That situation adds extra incentive for Ellis to find a solution in the upcoming legislative session.

"I'm going to do my best," he said. "With the cost of legal services going up and government funds scarce, you're going to be even more apt to get a weaker court-appointed attorney."

Updated Tuesday, October 17, 2023

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