The law was inspired by a series of stories about Texas inmates who lost crucial appeals after court-appointed attorneys missed deadlines or filed only so-called “skeletal” writs — documents with little information often copied from other cases. It represents a significant reform for Texas, one of the only capital punishment states that lack a public defender to oversee key death row appeals known as state writs of habeas corpus.The new office will not handle cases at the trial level, which is where a lot of the shoddy lawyering takes place, but it will at least handle writs of habeas corpus. In the future, the Texas Legislature should also create a state-wide office of public defender to handle death penalty cases at the trial level.
The office, with an annual budget of about $1 million and a staff of nine, won't open soon enough to help any of the inmates whose appellate rights were squandered recently.
“Better late than never,” said Juan Castillo, one of four death row inmates whose state appeals were never filed by the San Antonio attorney assigned to represent them. “This is a start. There's a lot of cases” that have been botched.
Ellis first introduced the bill in 2007 in response to reports about how death row inmates' lawyers had mismanaged appeals. But the bill was blocked then by last-minute lobbying from Harris County's former district attorney.
In the aftermath, appellate mistakes continued. The Houston Chronicle reported earlier this year that three attorneys had repeatedly blown state or federal appellate deadlines for their death row clients, effectively surrendering their clients' rights to appeal. The Court of Criminal Appeals recently found two attorneys in contempt of court for their shoddy work, including Castillo's lawyer, Suzanne Kramer, and referred them to the State Bar of Texas for possible disciplinary action.
Kramer has not responded to repeated requests for comment.
By the 2009 legislative session, remaining opposition to establishing a state capital defense office had virtually disappeared, Ellis said. The law was approved late in the session and signed by the governor last month.
“I think that everyone agrees (death row inmates) deserve one fair shot at presenting their issues, whether they're meritorious or not,” said Andrea Marsh, executive director of the Texas Fair Defense Project. “We saw too many cases where poor state habeas representation forced people to lose appeals.”
The Office of Capital Writs will be funded by redirecting money already in the state budget: $500,000 formerly used to pay private attorneys for appeals and $494,520 from the state's Fair Defense account, already earmarked for indigent defense. Ultimately, its attorneys will likely handle most state appeals — about 10 a year, if the current pace of death sentences continues.
State writs of habeas corpus are considered the most critical step in death row appeals. It is at that stage that any innocence claim, allegation of prosecutorial misconduct, flawed trial defense or other issue involving omissions or case errors must be raised — or the arguments cannot normally be raised later in the process.
There have been major cuts at newspapers in staff covering the legislature, so we assume those cuts contributed to the fact that there was until yesterday no major coverage of the passage of the bill that created the Office of Capital Writs.