Association, Michael organized continuing education training for lawyers seeking to become death penalty qualified.
The pool of certified capital attorneys in Texas had been dwindling for several years. “In some jurisdictions, you just needed a bar card and a pulse to take a death penalty case,” Michael said. Incompetent attorneys were being appointed to death penalty cases by judges who did not care. Texas has made national headlines for using defense attorneys who have slept through capital trials, to name just one popular example.2
In the past decade, appellate courts have ordered retrials for capital cases when defendants have had ineffective counsel. Sometimes the lawyers did not present mitigating evidence or call experts that may have changed the outcome of the trial. Sometimes lawyers failed to file routine motions to exclude prosecution evidence. And, yes, sometimes they fell asleep during a trial when someone’s life was on the line.
Texas seemed immune to the embarrassment but not to the increasing expense of footing the bill for all those retrials. Giving someone a retrial means an entire do-over, a clean slate. A retrial costs just as much as the original trial, and perhaps more if it is done right the second time. Courts hate spending money to have someone sentenced to die twice just because of some amateur snafu. The Texas legislature was getting agitated about the expenses.
One fix was to increase the training requirement for attorneys to be death penalty certified. There were also new resources, such as the Capital Case Bench Book, to assist judges presiding over capital cases. That book identified common issues and gave judges direction as to what is legally required in capital cases. The American Bar Association developed guidelines for capital cases, which most courts adopted, such as requiring a defense team made up of two attorneys, a fact investigator, and a mitigator. On its face, these changes would seem to help, but Texas did not increase the amount they paid attorneys to take capital cases. Texas often paid attorneys a flat fee of $25,000 to take a death penalty case.
There is no bigger case than a death penalty case. They are long, drawn-out juggernauts that require all your time, effort, and attention. If you have a capital case, it should be a priority. Cases often take years to resolve, even if you reach a plea. Death penalty cases are not for the faint of heart.
Attorneys on court appointment lists usually have their own private practice to run in addition to making themselves available on the public defender roster. The appointment process varies across jurisdictions. Sometimes judges appoint attorneys, and cronyism and campaign contributions can play a role in who is assigned to death penalty cases. Sometimes there is a list and a court administrator simply appoints the next lawyer in line. Sometimes they literally spin a wheel to see whose name comes up. If the attorney has a private practice that is going gangbusters and has plenty of money coming in, the attorney may turn down the case. Who wants to put everything on hold for three years to take a death penalty case, especially when you are only paid $25,000 to do the whole thing?
In fact, two types of attorneys take that kind of work: the very best and the very worst. The very best are ideological, true believers who do whatever it takes to focus on saving someone’s life. The worst are doing so poorly in their private practice that the $25,000 flat fee looks attractive. They often take a death penalty case alongside trying to manage their private practice, doing divorces, DWIs, and whatever work they can bill. Because they get a flat fee, there is no incentive to put time into the case. In fact, there is an incentive to put in as little time as possible, thereby increasing the amount of money earned per hour (billable hours is how revenue is measured in the legal world). So defendants get lawyers who take on death penalty cases but don’t devote any time to them, and don’t care, because the state wins all the time anyway.
“Some of them might as well be pall bearers,” Michael said.
If an attorney does not want to take a death penalty case, the judge or administrator spins the wheel again or calls the next attorney on the capital-qualified list. The judge may have to call several attorneys before one agrees to take the case. In some Texas counties, only two or three people are on the list. When Texas increased the certification requirements, but not the compensation, the list of certified attorneys dropped dramatically. Why put in more time and effort to maintain your death penalty certification if the pay does not change? The work is thankless and tormenting. If you care, you feel responsible for someone’s life. Most people do not last long under that kind of pressure.
As late as the mid-2000s, more than seven hundred attorneys were qualified to take death penalty cases in Texas. On the day Michael called me, there were less than seventy.
The lack of death penalty certified attorneys was especially bad in rural West Texas. Judges would demand that Michael, who happened to live in Lubbock, find someone to take a capital case because of his role with capital assistance at the Texas Criminal Defense Lawyers Association. “Who’s on your list?” Michael would ask the judge.
“He was too busy,” said the judge. “Get me someone else.” Or maybe the attorney had angered the judge somehow: hadn’t contributed to the judge’s reelection campaign or was combative on some other case. Or maybe the attorney really was too busy, doing too well in private practice to want to put everything on hold for years to take on a soul-retching death penalty case.
Meanwhile, there was pressure from outside Texas to get things in order. Next door, in Louisiana, they were having similar problems appointing attorneys to defend capital cases. Higher courts told Louisiana that they were serious about the constitutional rights to a defense. If Louisiana was not able to provide a defense against the death penalty, these courts pointed out that Louisiana could no longer charge people with it.
Bloodthirsty Texas took notice. With judges breathing down his neck to get more attorneys certified to do death penalty cases, Michael made an innovative suggestion. “What if we had a permanent capital defense team?” Michael asked. Then no one would have to worry about appointing attorneys to capital cases anymore.
No more judicial appointments. No more lists. No more wheels. If the district attorney charged someone with the death penalty, the case would automatically go to the public defender team for capital cases. The team would handle only death penalty cases, but all of the death penalty cases, across a large geographic area. It would be like an anti-DA’s office. The district attorney’s office is a permanent office in charge of prosecuting crimes. We could have a permanent office in charge of defending crimes, but only death penalty cases.
Administrative judges in Texas talked, the Task Force for Indigent Defense got involved, and they decided to start the capital defense office as an experiment, based in West Texas. A big part of the task force’s concern was providing indigents’ defense for death penalty cases because those cases are so high-profile and come under so much scrutiny from higher courts—not to mention the media.
We named the new office the West Texas Regional Public Defender for Capital Cases. It was supposed to be an experiment lasting a few years, and it was meant to serve only two of the nine Texas judicial administrative regions, in which capital case appointments had been particularly challenging. The team took all the capital cases from the seventh and ninth judicial regions, which covered the entire Panhandle of Texas, all the way down to Midland and Odessa, and west over to Pecos and east past Abilene, an area that included more than eighty counties and almost a third of Texas.
In line with the American Bar Association guidelines, the new team would be made up of attorneys, mitigators, and a fact investigator. There would be office staff. For death penalty cases, the courts mandate two attorneys, a first and second chair, for each death penalty defendant. Mitigation specialists and fact investigators assist with various investigations to support the defense. Some judges in Texas were hesitant to adhere to the guidelines because it was not a good look politically to spend taxpayer money defending killers. Typical Texans were not eager to hear about their tax dollars being used to defend
