A September 20 report by the Texas Defender Service says that Texas ​“has failed to ensure effec­tive coun­sel” for appel­lants in cap­i­tal cas­es and that the state’s sys­tem of review­ing death penal­ty cas­es on direct appeal is ​“in dire need of reform.” The report, titled Lethally Deficient, reviewed all 84 cap­i­tal direct appeals decid­ed by the Texas Court of Criminal Appeals (CCA) from 2009 to 2015 and iden­ti­fied numer­ous ​“per­sis­tent deficits in the pro­vi­sion of coun­sel on direct appeal in death penal­ty cas­es.” Among those prob­lems, the report found that the Texas cap­i­tal defense sys­tem ​“fails to mean­ing­ful­ly eval­u­ate attor­ney qual­i­fi­ca­tions” before assign­ing a lawyer to han­dle a cap­i­tal appeal; ​“under­staffs the defense” by appoint­ing only one lawyer — fre­quent­ly a solo prac­ti­tion­er — to the case; improp­er­ly ​“sub­jects defense coun­sel to polit­i­cal pres­sures”; pro­vides incon­sis­tent and often inad­e­quate resources and com­pen­sa­tion; and fails to con­trol attor­ney work­load to ensure that appoint­ed lawyers have time to pro­vide appro­pri­ate rep­re­sen­ta­tion. The report said that, these ​“fun­da­men­tal flaws … led to mul­ti­ple instances” in which appeal lawyers recy­cled boil­er­plate argu­ments rely­ing on out­dat­ed legal author­i­ty that had already been reject­ed in oth­er cas­es, failed to meet or con­sult with their clients before fil­ing briefs, failed to file replies to pros­e­cu­tors’ briefs, and failed to seek review of the case by the U.S. Supreme Court. During the peri­od exam­ined, the CCA upheld every cap­i­tal con­vic­tion and more than 94% of all death sen­tences, and over­turned just three death ver­dicts. Looking at 1,060 cap­i­tal direct appeal deci­sions between 2005 and 2015 by courts in the oth­er 30 death penal­ty states, the study found that Texas’s rever­sal rate was 2.8 times low­er than the nation­al aver­age. ​“The tragedy of direct appeals in Texas cap­i­tal cas­es is not sim­ply that lawyers under­per­form, often past­ing togeth­er briefs, skip­ping oral argu­ment, or declin­ing to do oth­er basic tasks such as fil­ing reply briefs. It is that every­one knows that this is hap­pen­ing, from the Texas Court of Criminal Appeals on down. It is an embar­rass­ment to the legal pro­fes­sion and a tes­ta­ment to the low expec­ta­tions in Texas sur­round­ing defense rep­re­sen­ta­tion in cap­i­tal cas­es,” said Jordan Steiker, Co-Director of the Capital Punishment Center at The University of Texas School of Law. The Texas Defender Service offers three major reform rec­om­men­da­tions, sug­gest­ing that Texas should 1) ​“estab­lish a statewide cap­i­tal appel­late defend­er office,” 2) ​“cre­ate a statewide appoint­ment sys­tem with effec­tive case­load con­trols and uni­form attor­ney com­pen­sa­tion,” and 3) ​“appoint two lawyers to rep­re­sent death-sen­tenced defen­dants on direct appeal.” Kathryn Kase, exec­u­tive direc­tor of the Texas Defender Service, said ​“Texas has made enor­mous strides in its effort to reform indi­gent legal ser­vices in gen­er­al, and in cap­i­tal indi­gent rep­re­sen­ta­tion, since 2001.” These new mea­sures, she said ​“are the nec­es­sary next steps in deliv­er­ing a promise that the first Texas Code of Criminal Procedure laid out in 1857, promis­ing ade­quate legal assis­tance to indi­gents fac­ing the mighty pow­ers of the state.”

(“Lethally Deficient: Direct Appeals in Texas Death Penalty Cases,” Texas Defender Service, September 20, 2016; M. Ward, ​“Report: Texas death penal­ty appeals process deeply flawed,” Houston Chronicle, September 20, 2016; San Antonio Express-News, September 20, 2016; Press Release, ​“New Report Examines Texas Death Penalty Direct Appeal Process and Practices,” Texas Defender Service, September 20, 2016.) See Representation.

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