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.