Here. Let’s play a game. I give you a sentence, you fill in the blanks. Everyone wins.
You know you’re _____ when you’re an ______ on _____ _____ in _______ and your _______ misses _______. ___ ____ ____.
Texas lawyers have repeatedly missed deadlines for appeals on behalf of more than a dozen death row inmates in the last two years — yet judges continue to assign life-or-death capital cases and pay hundreds of thousands in fees to those attorneys
Because getting that appeal heard may be the best thing that can happen to you. The worst, of course, is getting executed. But there’s so much middle ground: important middle ground that these people are losing out on. Specifically the Constitutionally mandated review of their claims.
Yes, I know, everyone is human and we all miss deadlines. But if you’re in the capital defense business, you better damn well make sure that you make every date you’re supposed to. If you don’t, the worst can happen:
Houston lawyer Jerome Godinich missed three recent federal deadlines, the Chronicle reported in March. One client was executed in February after the federal appeal was filed too late. In March, the 5th Circuit Court of Appeals chastened Godinich for using the same excuse — a malfunctioning after-hours filing machine — for missing another deadline for a man still on death row.
That’s just the worst thing one could imagine happening. So it necessarily begs the question: How? Read on, and the answer will become clear:
A recent review of the Harris County Auditor’s billing records and district court records shows Godinich remains one of the county’s busiest appointed criminal attorneys, billing for $713,248, including fees for 21 capital cases. He was appointed to handle 1,638 Harris County cases involving 1,400 different defendants from 2006-March 2009, court records show.
That’s just insanely mind boggling. He represented defendants in 1638 cases in a span of three years?! Including a whopping TWENTY-ONE capital cases? No wonder he missed a deadline or two and had a client executed.
Death is different, they say. Which is why the ABA has published separate guidelines [pdf] for the representation of defendants in capital cases. From to commentary to Guideline 6.1 (page 40):
Studies have consistently found that defending capital cases requires vastly more time and effort by counsel than noncapital matters. For example, a study of the California State Public Defender revealed that attorneys there spent, on average, four times as much time on capital representation as on cases with any other penalty, including those involving a maximum possible sentence of life imprisonment without parole. In terms of actual numbers of hours invested in the defense of capital cases, recent studies indicate that several thousand hours are typically required to provide appropriate representation. For example, an in-depth examination of federal capital trials from 1990 to 1997 conducted on behalf of the Judicial Conference of the United States found that the total attorney hours per representation in capital cases that actually proceeded to trial averaged 1,889.
One lawyer, with 21 capital cases, which may on average take 1889 hours each. You do the math, even if half the cases go to trial, or even 1/10th. Add in all those other non-capital clients and a lot of people are receiving substandard representation.
The ABA guidelines mandate that the “responsible agency” monitor the workload of capital attorneys and help manage them. The guidelines also call for specific support staff and mitigation specialists. A quick review of the internets reveals that this particular attorney (and I don’t mean to harp on him, but he’s a good example) is a private attorney who probably gets assigned these cases. So there is no “responsible agency” such as the public defender’s office.
So whose responsibility is it? From what I’ve read and heard, in Texas, these appointments are made by the judges, who is some instances continue to appoint these attorneys over the objection of the public defenders office (who want to be assigned to these defendants).
Jack V. Strickland Jr., a Fort Worth lawyer who specializes in capital case law, also has repeatedly missed death row deadlines. However, judges accepted his explanations and allowed late filings for four of five appeals.
Being overwhelmed on capital cases was the excuse for two late 2008 filings.
Strickland told the court that he’d been hospitalized several months before the appeals were due, then “began a new death penalty trial right after his recuperation period, was in the process of preparing another death penalty writ application which was due mid-September, was preparing for trial in another case, and had presented five lectures and papers in the previous sixty days,” according to a CCA opinion.
So while Attorneys Godinich and Strickland may well have engaged in unethical behavior in accepting these cases and missing deadlines, surely some of the blame must fall on the courts for continuing to appoint him. Is it that it’s cheaper to keep assigning cases to contract attorneys rather than the public defender’s office? I don’t know the answer to that, but it’s something to think about. Are we sacrificing Constitutional standards of representation for cost-saving?
Grits has more on this.