State Bar of Texas Adopts Texas-Specific Version of ABA Guidelines for Death Penalty Cases

According to the November 2006 edi­tion of the Texas Bar Journal pub­lished by the State Bar of Texas, the State Bar has adopt­ed a Texas ver­sion of the American Bar Association’s Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases. The intro­duc­tion to the Texas Guidelines follows:

On April 21, 2006, the Board of Directors of the State Bar of Texas adopt­ed the Guidelines and Standards for Texas Capital Counsel. These guide­lines and stan­dards artic­u­late the statewide stan­dard of prac­tice for the defense of cap­i­tal cas­es in order to ensure high qual­i­ty rep­re­sen­ta­tion for all per­sons fac­ing the death penal­ty in the State of Texas. The Guidelines and Standards for Texas Capital Counsel are a Texas-spe­cif­ic ver­sion of the American Bar Association’s Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases, as draft­ed by the State Bar of Texas Standing Committee on Legal Services to the Poor in Criminal Matters. The adop­tion of these guide­lines is an impor­tant accom­plish­ment for the State Bar of Texas and the crim­i­nal jus­tice sys­tem of the state.

Through its research in this area, the com­mit­tee deter­mined that a clear out­line of nec­es­sary defense attor­ney per-for­mance stan­dards in cap­i­tal cas­es would ben­e­fit not only defen­dants, most of whom are indi­gent, but also the legal pro­fes­sion and the jus­tice sys­tem as a whole. As the guide­lines point out, suc­cess­ful rep­re­sen­ta­tion requires con­duct­ing a fac­tu­al inves­ti­ga­tion, often involv­ing high­ly spe­cial­ized foren­sic sci­ence, cul­ti­vat­ing a range of wit­ness­es, uti­liz­ing mit­i­ga­tion spe­cial­ists high­ly trained in men­tal health and men­tal retar­da­tion issues, and mak­ing use of a team approach that com­bines mem­bers from sev­er­al dis­ci­plines.

The com­mit­tee, which includes defense attor­neys, judges, pros­e­cu­tors, and pub­lic mem­bers, deter­mined the need for a com­pre­hen­sive tool to guide coun­sel rep­re­sent­ing defen­dants in death penal­ty cas­es. To this end, the com­mit­tee designed the Guidelines and Standards for Texas Capital Counsel, which pro­vides detailed prac­tice stan­dards for com-petent rep­re­sen­ta­tion in these crit­i­cal cas­es.

The com­mit­tee adapt­ed the ABA’s guide­lines to fit the needs of cap­i­tal lit­i­ga­tion in Texas. For exam­ple, rec­og­niz-ing that some peo­ple fac­ing the death penal­ty in Texas are cit­i­zens of oth­er coun­tries, a sec­tion was added detail­ing the addi­tion­al oblig­a­tions of coun­sel rep­re­sent­ing for­eign nation­als in cap­i­tal cas­es. In addi­tion, the com­mit­tee includ­ed an expand­ed sec­tion instruct­ing attor­neys on how to ade­quate­ly inves­ti­gate and present a writ of habeas cor­pus in cap­i­tal cas­es.

The Guidelines and Standards for Texas Capital Counsel pro­vide guid­ance on the nec­es­sary qual­i­fi­ca­tions of de-fense coun­sel and detail who should be includ­ed on a defense team. They warn that the work­load of attor­neys repre-sent­ing defen­dants in death penal­ty cas­es must be mon­i­tored and that attor­neys should give pri­or­i­ty to death penal­ty clients. The guide­lines detail the types of train­ing defense coun­sel should obtain and also instruct attor­neys on fund­ing and com­pen­sa­tion mat­ters.

The guide­lines then detail the steps coun­sel must take in tri­al prepa­ra­tion, the duty to seek an agreed-upon dis­posi-tion, and the spe­cial issues con­cern­ing the penal­ty stage of cap­i­tal tri­als. The duties of post-tri­al coun­sel, includ­ing sepa-rate sec­tions for direct appeal, habeas, and clemen­cy coun­sel, are also pre­sent­ed. The guide­lines exten­sive­ly detail each of these duties, in an easy to under­stand, step-by-step style.

The com­mit­tee appre­ci­ates the sup­port of the State Bar of Texas Board of Directors in adopt­ing the guide­lines and stan­dards. The com­mit­tee is con­fi­dent that these guide­lines will ele­vate the qual­i­ty of rep­re­sen­ta­tion of indi­gent peo­ple, and all peo­ple, in cap­i­tal cas­es in Texas.

(STATE BAR OF TEXAS: GUIDELINES AND STANDARDS FOR TEXAS CAPITAL COUNSEL: STANDING COMMITTEE ON LEGAL SERVICES TO THE POOR IN CRIMINAL MATTERS ADOPTED BY THE STATE BAR BOARD OF DIRECTORS APRIL 21, 2006, 69 Tex. B. J. 966 (2006)). See  Representation .