Texas Executes Defendant Who Had Been Represented by ​“Cut-and-Paste” Appeals Lawyer

Texas exe­cut­ed death-row pris­on­er Billy Jack Crutsinger on September 4, 2019, despite, his cur­rent lawyers say, hav­ing pro­vid­ed him with an incom­pe­tent appeals lawyer who repeat­ed­ly filed friv­o­lous claims and cut and past­ed con­tra­dic­to­ry claims and argu­ments from pri­or clients’ court plead­ings. Crutsinger had asked the U.S. Supreme Court to halt his exe­cu­tion to review whether the tri­al court’s appoint­ment of a lawyer ​“who was not com­pe­tent to rep­re­sent the indi­gent, death-sen­tenced pris­on­er at any stage of the ini­tial state col­lat­er­al pro­ceed­ing” uncon­sti­tu­tion­al­ly denied him access to the courts through­out his state court appeals and whether the fed­er­al courts improp­er­ly denied him fund­ing to try to prove his claim. His cur­rent attor­ney Lydia Brant—who has rep­re­sent­ed Crutsinger since 2008 — told the Austin Chronicle that he has ​“nev­er had a com­pe­tent lawyer” in his state appeals. 

According to Brandt, Richard Alley—whom the tri­al court appoint­ed to rep­re­sent Crutsinger after his con­vic­tion in 2003 — was ​“great as a word proces­sor, who cut-and-past­ed claims from one client’s plead­ing into the next client’s plead­ing and into the next, and the next, and the next.” Crutsinger’s U.S. Supreme Court peti­tion includes an analy­sis of his appeal lawyer’s pri­or plead­ings that ​“demon­strates that from 1999 to 2007, Richard Alley had a sub­stan­tial his­to­ry in the state and fed­er­al courts of a lack of pro­fes­sion­al­ism, uneth­i­cal behav­ior, and an inabil­i­ty to com­pe­tent­ly rep­re­sent.” The peti­tion pro­vides numer­ous exam­ples of Alley’s ​“cut-and-paste” prac­tices that repeat­ed­ly rehashed pri­or clients’ claims even after court deci­sions in those cas­es had ​“put Alley on notice that the claims were not cog­niz­able, cit­ed estab­lished prece­dent and explained why.” As an illus­tra­tion of Alley’s alleged incom­pe­tence, Crutsinger argued that Alley had simul­ta­ne­ous­ly reused an inef­fec­tive­ness claim he had filed for a pri­or client say­ing that tri­al coun­sel had failed to file pre­tri­al motions, while in anoth­er claim cut­ting and past­ing pas­sages ver­ba­tim from the pre­tri­al motion tri­al coun­sel had actu­al­ly filed in the case. 

Last week, both the Texas Court of Criminal Appeals and the U.S. Court of Appeals for the Fifth Circuit reject­ed Crutsinger’s requests to stay his exe­cu­tion. The Fifth Circuit refused to hear Crutsinger’s appeal of a dis­trict court rul­ing that had denied him fund­ing he argued was nec­es­sary to show that his pri­or coun­sel had been inef­fec­tive. Dissenting from the Fifth Circuit rul­ing, Judge James E. Graves wrote that the court had improp­er­ly ​“con­clud­ed that Crutsinger must prove his claim of inef­fec­tive assis­tance of coun­sel to be able to estab­lish that ​‘inves­tiga­tive, expert, or oth­er ser­vices are rea­son­ably nec­es­sary’ to then be able to prove his claim of inef­fec­tive assis­tance of coun­sel. Such a cir­cu­lar appli­ca­tion,” Graves said, ​“is illog­i­cal.” Shortly before 7:00 p.m. Eastern time, the Supreme Court declined to inter­vene in Crutsinger’s case.

A per­son sen­tenced to death in Texas is three times more like­ly to be exe­cut­ed than a per­son sen­tenced to death else­where in the U.S., and the state has 11 pend­ing exe­cu­tion dates in the final four months of 2019. A DPIC analy­sis found that the 13 sched­uled Texas exe­cu­tions in the last five months of 2019 raise trou­bling ques­tions as to whether the state is exe­cut­ing the most moral­ly cul­pa­ble indi­vid­u­als for the worst of the worst crimes or the most vul­ner­a­ble pris­on­ers and pris­on­ers who were pro­vid­ed the worst legal process.