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Page 1
TEXAS DEATH PENALTY PRACTICES:
QUALITY OF REGIONAL STANDARDS
AND COUNTY PLANS GOVERNING
NDIGENT DEFENSE IN CAPITAL CASES
I
JUSTICE
CENTER
T
EXAS
D
EFENDER
S
ERVICE
REPORT NO. 2
TEXAS FAIR DEFENSE ACT IMPLEMENTATION
EQUAL
Second Edition
November 2003
Texas Defender Service
and
The Equal Justice Center
Prepared by:
Page 2
Contents
Part
Page
TEXAS DEATH PENALTY PRACTICES: EXECUTIVE SUMMARY
............ i
I.
INTRODUCTION
....................................................................................................... 1
II.
STATUTORY FRAMEWORK
.............................................................................. 5
A. Regional Attorney Qualification Standards.......................................................................... 6
B. County Plans ......................................................................................................................... 7
1. Attorney Qualifications...................................................................................................... 7
2. Fees and Expenses for Attorneys, Experts, and Investigators ........................................... 8
3. Fair and Neutral Selection of Counsel............................................................................... 8
4. Prompt Access to Counsel................................................................................................. 8
5. Indigence Standards and Procedures ................................................................................. 9
III. EVALUATION METHODS
.................................................................................. 11
A. How Regional Attorney Qualification Standards Were Evaluated..................................... 12
B. How County Plans Were Evaluated.................................................................................... 13
1. Attorney Qualifications.................................................................................................... 14
2. Attorney Compensation................................................................................................... 15
3. Expert and Investigator Expenses.................................................................................... 16
4. Fair and Neutral Selection of Counsel............................................................................. 17
5. Prompt Access to Counsel............................................................................................... 18
IV. FINDINGS: ANALYSIS OF TRENDS AMONG REGIONAL
QUALIFICATION STANDARDS
...................................................................... 19
V. SCORES FOR REGIONAL ATTORNEY QUALIFICATION
STANDARDS
.............................................................................................................. 23
VI. SUMMARY DESCRIPTION OF REGIONAL QUALIFICATION
STANDARDS
.............................................................................................................. 25
VII. FINDINGS: ANALYSIS OF TRENDS AMONG COUNTY PLANS
.... 29
A. Attorney Qualifications..................................................................................................... 29
B. Attorney Compensation.................................................................................................... 32
C. Expert and Investigator Expenses..................................................................................... 33
Page 3
D. Fair and Neutral Selection of Counsel.............................................................................. 34
E. Prompt Access to Counsel................................................................................................ 35
VIII. SCORES FOR COUNTY PLANS
....................................................................... 39
IX. SUMMARY DESCRIPTIONS OF COUNTY PLANS
................................ 41
X.
FINDINGS: TEXAS’S CAPITAL REPRESENTATION
REQUIREMENTS COMPARED TO THE ABA GUIDELINES FOR
APPOINTMENT OF COUNSEL IN DEATH PENALTY CASES
........ 55
A. ABA Guideline 2.1: Implementation of a Plan................................................................. 56
1. What the Guideline Requires........................................................................................ 56
2. Related FDA Provisions ............................................................................................... 57
B. ABA Guideline 3.1: Appointing Authority ...................................................................... 57
1. What the Guideline Requires........................................................................................ 57
2. Related FDA Provisions ............................................................................................... 57
C. ABA Guideline 4.1: Assembly of the Defense Team....................................................... 58
1. What the Guideline Requires........................................................................................ 58
2. Related FDA Provisions ............................................................................................... 59
D. ABA Guideline 5.1: Attorney Qualifications ................................................................... 59
1. What the Guideline Requires........................................................................................ 59
2. Related FDA Provisions ............................................................................................... 59
E. ABA Guideline 6.1: Attorney Workload.......................................................................... 60
1. What the Guideline Requires........................................................................................ 60
2. Related FDA Provisions ............................................................................................... 60
F. ABA Guideline 7.1: Monitoring and Removal of Counsel .............................................. 60
1. What the Guideline Requires........................................................................................ 60
2. Related FDA Provisions ............................................................................................... 61
G. ABA Guideline 8.1: Training ........................................................................................... 61
1. What the Guideline Requires........................................................................................ 61
2. Related FDA Provisions ............................................................................................... 62
H. ABA Guideline 9.1: Compensation.................................................................................. 62
1. What the Guideline Requires........................................................................................ 62
2. Related FDA Provisions ............................................................................................... 63
I. ABA Guideline 10.1: Establishing Performance Standards............................................. 63
1. What the Guideline Requires........................................................................................ 63
2. Related FDA Provisions ............................................................................................... 63
J. Conclusion ........................................................................................................................ 64
XI. SUMMARY DESCRIPTION OF THE FDA AND SELECT COUNTY
PLANS AS COMPARED TO THE ABA GUIDELINES
........................... 69
XII. RECOMMENDATIONS
........................................................................................ 71
Page 4
RESOURCES FOR IMPROVING CAPITAL REPRESENTATION PRACTICES............... 75
THIS REPORT COVERS PLANS IN THE COUNTIES LISTED BELOW.......................... 77
ABOUT THE EQUAL JUSTICE CENTER AND TEXAS DEFENDER SERVICE............. 79
ENDNOTES ............................................................................................................................. 81
© Equal Justice Center, Texas Defender Service 2003
Copies of this report and other useful information and links reg ding indigent defense can be downloaded from:
ar
www.equaljusticecenter.org and www.texasdefender.org
Page 5
TEXAS DEATH PENALTY PRACTICES: EXECUTIVE SUMMARY
This report describes the statutes and local administrative practices used throughout Texas to
appoint counsel for indigent defendants who are charged with capital crimes, and documents the
extent to which those practices ensure that capital defendants are provided competent defense
counsel at trial. Texas law divides responsibility for appointment of counsel in capital cases
among officials at the state, regional, and county levels. Accordingly, this report assesses:
I.
Regional compliance with attorney qualification criteria contained in the Texas
Fair Defense Act (FDA);
II.
County compliance with the FDA’s five core provisions governing indigent
defense procedures in capital cases; and
III.
Texas’s compliance with the Guidelines for Appointment of Counsel in Death
Penalty Cases adopted by the American Bar Association (ABA).
The report focuses on county plans from the 33 Texas counties with the most active death
penalty dockets. Combined, these counties account for 84% of Texas executions carried out
since reinstatement of the death penalty in 1976, and for 87% of all inmates currently on death
row in Texas.
Our main findings are as follows:
I.
Regional Attorney Qualification Standards
Local selection committees in each of Texas’s nine administrative judicial regions are charged
with taking the lead in developing attorney qualification standards for capital cases. In 2001, the
Legislature enumerated several necessary attorney qualifications and charged the regions with
meaningful implementation of those qualifications.
Despite this Legislative mandate, only 3 of the 9 administrative judicial regions in Texas have
adopted attorney qualification standards that articulate all of the specific, objective attorney
qualifications required by the FDA. None of the regional qualification standards incorporate
attorney performance standards or give any definition to the legislative mandate that lawyers
must “exhibit proficiency and commitment” to representation of defendants in death penalty
cases before being eligible to receive capital appointments.
II.
County Indigent Defense Plans
Judges in each county bear primary responsibility for developing the specific indigent defense
practices to be followed by local officials in capital cases. In doing so, those judges must comply
with FDA requirements regarding attorney qualifications, attorney compensation, access to
experts and investigators, attorney selection methods, and prompt access to counsel.
While the results are mixed, an overwhelming majority of the counties reviewed fails to comply
with one or more of the FDA’s mandates concerning death penalty cases. Only two of Texas’s
i
Page 6
most active death penalty counties fully comply with FDA provisions governing capital
representation. Some counties that actively impose the death penalty ignore those mandates
altogether. This failure is a serious dereliction of the counties’ duties under state law, and
continues to call into grave question the quality of justice and the reliability of verdicts produced
in many Texas death penalty cases.
III.
Texas’s Compliance with American Bar Association Guidelines
The ABA Guidelines for the Appointment of Counsel in Death Penalty Cases reflect a carefully
studied nationwide consensus on the minimum procedures necessary to provide high-quality
legal representation in all capital cases. The United States Supreme Court refers to the ABA
Guidelines as “guides to determining what is reasonable,” and has written favorably about the
ABA Guidelines in several cases.
While the failure of the regions and counties to comply with the FDA’s mandates is a matter of
concern in its own right, noncompliance with the FDA is even more alarming when viewed in
light of the fact that the FDA itself falls far short of the ABA’s norms for capital trial
representation.
This report analyzes Texas’s compliance with ABA Guidelines 2.1-10.1, and reveals that the
FDA requires procedures consistent with those recommended by the ABA Guidelines in only 3
of 17 categories. Texas thus still falls considerably short of adopting the practices necessary to
promote both the quality of capital defense representation and public confidence in the
administration of the death penalty.
Full implementation of the FDA would be a good and necessary first step toward improving the
quality and consistency of Texas death penalty practices. However, Texas jurisdictions also
should act to incorporate into their capital defense procedures the mainstream practices set out in
the ABA Guidelines, as well as those included in the Recommendation section of this report.
Taking these important steps toward increased accuracy and reliability remains necessary in
order to bring Texas capital defense practices into the national mainstream.
• A chart detailing Regional Scores can be found on page 23
• A chart detailing County Scores can be found on page 39
• A chart detailing Texas’s compliance with ABA Guidelines can be found on page 65
• A chart for Improving Practices can be found on page 75
ii
Page 7
I.
INTRODUCTION
This report documents the degree to which Texas has adopted procedures to ensure that indigent
defendants charged with capital crimes are provided competent defense counsel to represent
them in their trials. It also documents how far Texas counties still have to go in order to develop
procedures that are fully consistent with the state’s own statutory requirements and with national
standards for capital defense representation.
In this report we evaluate: (1) the extent to which each of Texas’s nine judicial regions have
adopted attorney qualification standards that comply with Texas law; (2) the extent to which
capital indigent defense procedures adopted in the 33 Texas counties with the most active capital
dockets comply with Texas law; and (3) how Texas procedures compare to the American Bar
Association’s Guidelines for Appointment of Counsel in Death Penalty Cases (hereinafter, the
ABA Guidelines).
This report does not concern support for or opposition to the death penalty. In fact, if people on
all sides of the capital punishment issue agree on one item, it is that the state should appoint
qualified lawyers for the trial of death penalty cases and ensure that appointed lawyers provide
each defendant a thorough and fully competent defense. The vast majority of the public
understands that fair representation at trial reduces costly reversals on appeal, minimizes the risk
of erroneous application of the death penalty, and increases public confidence in the judicial
system.
In 2001, the Legislature rewrote Texas law on how and when lawyers must be appointed to
represent poor people who are accused of crime. One of the main catalysts for passage of the Fair
Defense Act (FDA) at that time was increased public awareness of the deficiencies apparent in
Texas’s system for providing representation to defendants charged with capital crimes.
Documented reports of lawyers who were under-qualified, under-paid, overworked, and even
asleep during trial made headlines
1
and undermined confidence in the state’s criminal justice
system. The Texas Legislature responded by promoting the adoption of more stringent and
uniform minimum qualification standards for lawyers representing clients facing the death
penalty. The Legislature also acted to require, for the first time, prompt appointment of both
first-chair and second-chair counsel in all death penalty cases.
The FDA’s capital representation reforms were designed to build upon previous legislative
enactments that likewise had sought to address chronic problems with trial representation in
death penalty cases throughout Texas. Six years prior to the FDA’s passage, in 1995, the
Legislature added article 26.052 to the Code of Criminal Procedure. This provision vested in
local selection committees in each administrative judicial region responsibility for devising
minimum qualification standards for capital trial attorneys. The FDA preserved this regional
structure for the development of attorney qualification standards and screening of attorneys, and
sought to strengthen the regional standards by introducing certain minimum qualifications that
those standards now must meet or exceed. The FDA also obliged each of Texas’s 254 counties to
adopt written procedures for promptly and fairly appointing indigent defense counsel in all
criminal cases,
2
including capital prosecutions.
1
Page 8
The FDA presents a historic opportunity to improve the overall quality of legal representation
available to indigent capital defendants throughout Texas, thereby fundamentally reforming the
state’s criminal justice system and making changes essential to ensuring basic fairness in Texas’s
imposition of the death penalty. The statutory mandates, however, are not self-executing, and
must be implemented by each administrative judicial region in the state and by the district judges
in each county that seeks to impose the death penalty. Details on this implementation are to be
provided by the administrative judicial regions in published attorney qualification standards, and
in written plans that counties must annually submit to the Texas Task Force on Indigent Defense.
This report analyzes both the administrative judicial regions’ capital attorney qualification
standards and the specific provisions of the county plans that are relevant to capital cases. This
analysis is designed to make the information contained in the regional standards and county
plans more accessible to the public. Our evaluation of these materials also enables us to make
some preliminary observations about common problems and successes experienced by judicial
regions and counties in implementing the FDA’s death penalty provisions. Additionally, our
review of regional and county-level capital representation standards allows for an examination of
the extent to which Texas’s indigent defense procedures in death penalty cases meet national
guidelines.
Our report is structured as follows:
• Part II elaborates on the current statutory structure that controls appointment of counsel
for indigent defendants in capital cases;
• Part III describes the methods we used to evaluate the regional attorney qualification
standards and the county plans;
• Part IV distills from our evaluation certain trends, both positive and negative, apparent in
the regional qualification standards;
• Part V reports the evaluation scores for the attorney qualification standards adopted in
each administrative judicial region;
• Part VI provides a summary description of the attorney qualification standards adopted in
each administrative judicial region;
• Part VII analyzes both positive and negative trends apparent in the county plans;
• Part VIII relates the scores for each county plan’s capital representation procedures;
• Part IX contains a summary description of each county plan as it relates to indigent
defense practices in death penalty cases;
• Part X discusses the American Bar Association’s Guidelines for Appointment of Counsel
in Death Penalty Cases, and how Texas indigent defense practices measure up to those
guidelines;
• Part XI contains a summary description of how the FDA and select county plans compare
to the ABA Guidelines; and
• Part XII summarizes our recommendations for further reform of Texas’s death penalty
practices, based on our review of current procedures.
In compiling this report, our goal has been to provide the starting point for focused and detailed
discussions of further steps that can be taken—at the county, regional, and state levels—to
2
Page 9
ensure that the quality of legal representation in death penalty cases is sufficient to consistently
produce the fair and accurate results that the public demands. The Equal Justice Center and
Texas Defender Service hope that this report will stimulate further public discussion of how best
to ensure quality representation of defendants facing the death penalty, and serve as a valuable
resource to policymakers as they consider various proposals for improving capital representation
in Texas.
3
Page 10
4
Page 11
II.
STATUTORY FRAMEWORK
Appointment of counsel in capital cases in Texas is controlled primarily by article 26.052 of the
Code of Criminal Procedure.
As originally enacted in 1995, article 26.052 was a first step toward formalizing statewide
procedures for the selection of qualified capital trial attorneys and the reimbursement of
expenses in death penalty cases. The 1995 legislation created a local selection committee in each
of Texas’s nine administrative judicial regions. Each local selection committee was charged with
adopting standards for the qualification of attorneys appointed to represent indigent defendants in
death penalty cases, and with maintaining a list of attorneys who meet those qualifications. This
early version of the statute also required judges presiding over capital cases to approve
reasonable ex parte requests for advance payment of expert and investigative expenses, and
allowed for appointed counsel to be reimbursed for reasonable expenses incurred without prior
court approval.
The 1995 legislation was intended to promote qualification standards for capital trial counsel that
would consistently produce competent representation, and to provide timely and adequate
funding for the expert and investigative services that are essential to any effective death penalty
defense.
3
These provisions were a positive step forward, but they did not solve the problem.
Even after article 26.052 was added to the Code of Criminal Procedure, assignment of under-
qualified counsel and under-funding of expert and investigative services both continued to be
widespread problems in death penalty cases across the state.
4
Accordingly, in 2001, the Legislature substantially amended article 26.052 in order to address
criticisms regarding the results seen under the previous statutory framework. For example, when
initially enacted, article 26.052 did not establish any statewide minimum qualification standards
to guide the local selection committees. As a result, the regional standards generally were not
sufficiently rigorous to ensure that attorneys with the necessary skill and experience were
consistently appointed in capital cases.
5
The Legislature responded by amending article 26.052,
through the FDA, to specify what issues the regional qualification standards must address, and
what minimum standards must apply in each region. The FDA also mandates that two defense
counsel must be promptly appointed to represent any defendant charged with a capital crime,
unless the prosecution indicates in writing that it will not seek the death penalty.
The FDA also includes broad indigent defense reforms that are generally applicable to all
criminal cases, and that significantly impact procedures in death penalty prosecutions. Most
notably, the FDA requires Texas counties to adopt written procedures for promptly and fairly
appointing indigent defense counsel, including procedures applicable in capital cases. The FDA
thus ended previous custom, under which indigent defense services in Texas were provided
under nearly 800 different sets of largely informal practices that were developed independently
by each criminal court and that often varied from one court to the next within the same county.
6
The FDA requires counties to replace those fragmented practices with transparent, formalized
procedures that apply in all courts within the same county,
7
and that comply with certain basic
standards applicable statewide.
5
Page 12
Finally, the FDA created the Task Force on Indigent Defense, a new state oversight agency, to
monitor and improve indigent defense practices in Texas.
8
Among other things, the Task Force is
charged with developing statewide policies and standards for providing legal representation to
indigent defendants at trial,
9
including standards that relate to the appointment of counsel in
death penalty cases. In addition, the Task Force is specifically authorized to identify attorneys
who do not meet performance and qualification standards that may be established by the Task
Force for death penalty cases, and to disqualify those attorneys from appointment in capital
cases.
10
Thus, after the FDA, representation of indigent defendants in Texas death penalty cases is
governed by standards and practices adopted both at the regional and county levels. For certain
issues, the content of those standards and practices is mandated by state statute, while for others,
regional and county officials are directed to exercise guided discretion in developing indigent
defense procedures. In addition, the Task Force on Indigent Defense is authorized to develop
statewide policies and standards governing capital representation as part of its broad mandate to
improve indigent defense in Texas.
A. Regional Attorney Qualification Standards
Under Texas’s statutory framework for trial-level death penalty representation, the Legislature
has given local selection committees in the state’s nine administrative judicial regions two vital
responsibilities: (1) adopting standards for the qualification of attorneys eligible for appointment
in death penalty cases; and (2) maintaining a regional list of capital-qualified attorneys who have
been screened for compliance with those regional qualification standards.
Under the FDA, an appointed regional selection committee has responsibility for adopting
regional qualification standards for capital attorneys. The FDA sets minimum parameters for
those regional standards. The regional qualification standards must require that at least one of the
attorneys appointed to a death penalty case: (1) be a member of the State Bar of Texas; (2)
exhibit proficiency and commitment to providing quality representation to defendants in death
penalty cases; (3) have at least five years’ experience in criminal litigation; (4) have tried to
verdict as lead defense counsel a significant number of felony cases, including homicide trials
and other trials punishable as second- or first-degree felonies or capital felonies; (5) have trial
experience in the use of and challenges to mental health or forensic expert witnesses; (6) have
experience in investigating and presenting mitigating evidence at the penalty phase of a death
penalty trial; and (7) have participated in continuing legal education courses or other training
relating to criminal defense in death penalty cases.
The regional selection committee is responsible for annually reviewing its list of capital-qualified
attorneys to ensure that each attorney on the list meets regional qualification standards. In
addition, each attorney on the regional list of capital-qualified attorneys must present proof every
year that he or she has successfully completed the State Bar of Texas’s continuing legal
education requirements, including training relating to the defense of death penalty cases.
11
The
6
Page 13
local selection committee must remove from the regional list any attorney who fails to present
such proof.
B. County Plans
Under the FDA, the Legislature requires the judges in each county to adopt a written indigent
defense plan that addresses five core issues:
• Qualifications for appointed counsel;
• Fees and expenses for attorneys, experts, and investigators;
• Fair and neutral methods for selecting attorneys;
• Prompt access to appointed counsel; and
• Financial standards and procedures for determining whether a person is indigent.
12
1. Attorney Qualifications
There are two components to the FDA’s required attorney qualification scheme. First, county
procedures have to specify objective qualifications that attorneys must possess in order to be
eligible to receive appointments. The vast majority of county plans establish attorney
qualification requirements and appointment lists that are graduated based on the seriousness of
the charged offense.
13
The objective qualifications required to be eligible for each list increase
with the seriousness of the offense category.
For capital cases, each county plan must set qualifications that meet or exceed the minimum
requirements of article 26.052 and that are at least as demanding as the attorney qualification
standards actually adopted by the administrative judicial region in which the county located.
County plans may adopt capital attorney qualification standards that are higher than the regional
standards.
The second component of the FDA’s attorney qualification scheme is the requirement that each
attorney applying to be on an appointment list must be approved by a majority of the judges who
try criminal cases at that court level (i.e., felony level or misdemeanor level). This majority
approval requirement serves two important functions: (1) it ensures that an attorney who has the
paper qualifications for a given appointment list also has the actual skill and knowledge, in the
opinion of a majority of the judges, to handle cases of that complexity and seriousness; and (2) it
serves as a safeguard that prevents an individual judge from favoring an attorney whom most
other judges believe to be unqualified.
14
In addition to being approved by a majority of the
felony judges for the county’s capital representation list, an attorney appointed to a capital case
also must be on the capital-qualified list for the relevant administrative judicial region.
7
Page 14
2. Fees and Expenses for Attorneys, Experts, and Investigators
Pursuant to the FDA, each county plan must include procedures for paying attorneys, experts,
and investigators in accordance with a published fee schedule. The fees to be paid in capital
cases should be part of this fee schedule.
Attorneys are to submit forms requesting payment and itemizing the services they have
performed on a case. If the judge disapproves the requested amount of payment, he or she is
required to state in writing the reasons for approving an amount different from that requested.
An attorney who wishes to dispute a fee reduction may file an appeal with the presiding judge of
the administrative judicial region.
With respect to payment of expert and investigator expenses, the FDA maintains the procedures
established for capital cases under article 26.052 in 1995, and extends the same procedures to
noncapital cases as well. Under those procedures, judges are required to approve reasonable ex
parte expense requests. The county plan also must allow both for reimbursement of expenses
incurred with prior court approval and for reimbursement of reasonable expenses incurred
without prior approval.
3. Fair and Neutral Selection of Counsel
The FDA requires county plans to specify how an attorney will be selected for each case,
including capital cases. The selection method is the key to ensuring that appointments are
allocated “among qualified attorneys in a manner that is fair, neutral, and non-discriminatory,”
15
an FDA requirement designed to safeguard the independence of appointed counsel and the
integrity of the overall indigent defense system.
The FDA allows counties to adopt any of three methods for selecting counsel: (1) a standard
rotation system in which lawyers are selected based on the order in which their names appear on
lists of qualified attorneys; (2) assignment of cases to a public defender’s office whose
employees represent indigent defendants exclusively; and (3) an “alternative program” that
meets FDA neutrality requirements.
16
Where such alternative programs have been adopted they
typically consist of a rotation system with broader or narrower exceptions than those listed in the
FDA, a contract defender system in which private lawyers agree to represent specific groups of
defendants under specific contract terms, or a combination of appointment methods. Unless
officials affirmatively choose another selection method, they are to use as a default the standard
rotation system described in the FDA.
4. Prompt Access to Counsel
The FDA promotes prompt access to counsel by specifying procedures and time limits for
appointment of counsel for indigent defendants and for initial attorney-client contact. There are
several components to the FDA scheme for ensuring timely access to counsel: (1) law
enforcement officers must present each arrested person to a magistrate within 48 hours after
8
Page 15
arrest; (2) magistrates must tell each person accused of a crime how to request appointed counsel
and must provide an opportunity for the accused to make such a request; (3) magistrates must
transmit requests for counsel to a judge or other appointing authority within 24 hours after
receiving a request, or must make the appointment of counsel themselves if authorized; (4) each
appointing authority must determine indigence and appoint and notify counsel within one to
three working days (depending on county population) after receiving a request for counsel; and
(5) appointed counsel must contact their clients within one working day after being appointed.
The result should be that an arrested person has an opportunity to request appointed counsel
within 48 hours after arrest, and see a defense attorney within a few days after requesting one.
These provisions apply generally to all jailable misdemeanors and to all felonies, including
capital felonies.
Furthermore, with respect to capital cases, the FDA mandates prompt appointment of both first-
chair and second-chair counsel. As soon as practicable after capital charges are filed, the court
must appoint two attorneys to represent the defendant, unless the state gives notice in writing that
it will not seek the death penalty.
5. Indigence Standards and Procedures
The FDA requires each county plan to include procedures and financial standards for
determining whether a defendant is indigent. The procedures and standards must apply to each
defendant in the county equally, regardless of whether the defendant is in custody or has been
released on bail. A court may consider only the defendant’s own resources and certain spousal
income when evaluating a defendant’s indigence, and generally may not consider whether the
defendant has posted or is capable of posting bail.
17
9
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10
Page 17
III. EVALUATION METHODS
For this report we conducted a careful study of 33 county plans, with a specific focus on the
capital defense procedures described in those plans. These counties constitute the most active
death penalty counties in Texas,
18
and combined have sentenced 797 people to death since
reinstatement of the death penalty in 1976, following Furman v. Georgia, 408 U.S. 153 (1972).
19
These counties account for 84% of the executions carried out in Texas since 1976,
20
and for 87%
of all inmates currently on death row in Texas.
21
In addition, we reviewed the capital attorney qualification standards adopted by each of Texas’s
nine administrative judicial regions.
Four attorneys with considerable expertise in capital representation and in the development and
implementation of the FDA produced the analyses contained in this report. They are Bill
Beardall (Executive Director of the Equal Justice Center), Andrea Keilen (Staff Attorney at
Texas Defender Service), Andrea Marsh (Staff Attorney at Texas Rural Legal Aid), and John
Niland (Director of Texas Defender Service’s Trial Consulting Project).
22
Also contributing to
the report is Hanna Liebman Dershowitz, Consulting Attorney with Texas Appleseed.
Based on our evaluation, we assigned a letter grade to each region’s attorney qualification
standards. The regional attorney qualification standards were evaluated for compliance with
article 26.052 and to determine how well they promote quality capital representation.
We also assigned five grades to each county plan based on how well the plan complies with the
FDA in its treatment of five core capital representation issues. The specific issues we reviewed
are described in more detail below.
We chose to frame our evaluation in terms of letter grades in order to provide an evaluation scale
that would be clearly understandable, that would be useful for comparison purposes, and that
would make it easy to identify best and worst practices across the state. A grading scale was
developed for each area we reviewed, taking into consideration the FDA’s specific requirements
in that area. In order to promote consistency across grading areas, each grading scale was
designed to correspond to the following general grading parameters:
A
Exceeds basic FDA requirements by adding recognized best practices;
B
Meets basic FDA requirements on balance;
C
Falls short of FDA requirements in minorrespects;
D
Falls short of FDA requirements in major respects; and
F
Affirmatively contravenes core FDA requirements or omits them altogether.
We want to emphasize that our purpose in assigning these grades is not to identify “good” or
“bad” regions or counties. Rather, we want to facilitate a constructive comparison among best
practices and weak practices, wherever they occur. This will make it easier to focus the
attention of the public and policymakers on practical ways to improve capital defense procedures
across the state.
11
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More detail appears below about how we applied this grading scheme to administrative judicial
regions and to counties.
Finally, we reviewed whether the FDA and selected county plans comply with the ABA
Guidelines for Appointment of Counsel in Death Penalty Cases. We did not assign letter grades
to the county plans in connection with the ABA Guidelines, but instead only indicate with “yes”
or “no” whether a plan complies with a specific Guideline.
A. How Regional Attorney Qualification Standards Were Evaluated
Each region’s capital attorney qualification standards were evaluated for compliance with article
26.052 and for how well they promote quality capital representation.
In promulgating the capital attorney qualification guidelines contained in article 26.052, the
Legislature intended that the local selection committees would use those guidelines as a starting
point for the development of meaningful qualification standards.
23
Accordingly, the FDA
imposes on regional selection committees the responsibility to adopt meaningful and practical
standards in some areas in which the Legislature has provided only general parameters for
attorney qualifications. For example, the FDA requires the regional selection committees to
adopt standards that specify some minimum amount of trial experience in serious felonies that
attorneys must have in order to be deemed capital-qualified. The Legislature did not dictate
exactly how many trials each region should require. Instead, the Legislature stated that the
regional standards should require a “significant number of felony trials,” and left it to the regions
to detail how many trials are needed to meet that requirement. Similarly, the Legislature
instructed the regions to adopt standards that require each capital-qualified attorney to exhibit
proficiency and commitment to death penalty representation, but gave the regional selection
committees the responsibility to develop in some meaningful way how that requirement is to be
measured.
Some regions did not fulfill their responsibility to adopt qualification standards that give
meaningful specificity to article 26.052, and thus were assigned lower grades. Other regions
were assigned low grades because, although they have adopted appropriately specific
requirements, their standards are inadequate to effectively screen for qualified counsel. In
contrast, higher grades were assigned to regions that meaningfully interpret the requirements of
article 26.052 and/or set objective standards higher than the minimum FDA baseline.
We assigned specific grades to the regional standards on the following basis:
A
The regional standards make what appears to be a good-faith effort to implement the
language of article 26.052 by articulating strong attorney qualifications that give
meaningful specificity to the broader standards set forth in the statute and that include
performance standards capable of adequately screening for qualified counsel.
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B
The regional standards make what appears to be a good-faith effort to implement the
language of article 26.052 by articulating specific attorney qualification requirements that
give meaningful specificity to the broader standards set forth in the statute.
C
The regional standards merely copy the language of article 26.052 without developing the
specific, detailed attorney qualifications that are necessary to meaningfully implement the
Legislature’s broad mandates, or the regional standards articulate specific attorney
qualification requirements that are unacceptably low and that are not capable of
adequately screening for qualified counsel.
D
The regional standards set out some capital attorney qualifications, but those
qualifications do not meet the minimum standards set forth in article 26.052.
F
The regional standards fail to specify any particular qualifications for capital defense
attorneys, or the region has failed to adopt attorney qualification standards applicable
region-wide.
B. How County Plans Were Evaluated
As noted above, we evaluated the 33 county plans based on their compliance with the FDA’s
requirements as they relate to capital defense. We considered each plan’s provisions related to:
• Qualifications for appointed counsel;
• Attorney compensation;
• Expert and investigator expenses;
• Fair and neutral methods for selecting attorneys; and
• Prompt access to appointed counsel.
24
We do not report overall average scores for each county plan. That would be inappropriate
because the five issues with respect to which each county plan was evaluated do not necessarily
merit equal weight. Averaging the five scores thus could encourage misleading overall
comparisons among county plans.
Our evaluations are limited to the quality of procedures as they are written in each county plan,
and we recognize that actual practices may well differ from the procedures described in the
county plan. However, the written procedures provide the best available basis for obtaining a
broad understanding of how capital representation is provided in Texas. Our evaluation aims to
provide an important starting point for identifying how individual capital defense practices may
be improved across the state. Moreover, there is obvious good reason underlying the state law
requirement that each county’s written plan accurately reflect the actual practices in that county.
The written plan requirement, and the transparency it provides, is a key element of the
Legislature’s FDA reforms. The extent to which a county’s actual practices do not conform to its
written plan is itself a subject warranting further investigation and appropriate remedial
measures.
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1. Attorney Qualifications
Like the regional attorney qualification standards, the county plans’ attorney qualification
provisions were graded based on their compliance with article 26.052 and on how well they
promote quality capital representation.
Many county plans simply copy the attorney qualification standards adopted by their respective
administrative judicial regions. In those cases, the county grade mirrors the grade assigned to the
relevant region’s attorney qualification standards, as the county and regional standards are
identical and share the same strengths and weaknesses.
In situations where the relevant administrative judicial region merely parrots the general
language of article 26.052, without giving meaningful specificity to its provisions as intended by
the Legislature, counties within those regions were assigned higher grades if the county has
fulfilled the statutory mandate with respect to its own capital attorney qualification requirements.
We assigned specific grades to county plans on the following basis:
A
The county plan makes what appears to be a good-faith effort to implement the language
of article 26.052 by articulating strong attorney qualifications that give meaningful
specificity to the broader standards set forth in the statute and that include performance
standards capable of adequately screening for qualified counsel.
B
The county plan makes what appears to be a good-faith effort to implement the language
of article 26.052 by articulating specific attorney qualification requirements that give
meaningful specificity to the broader standards set forth in the statute.
C
The county plan merely copies the language of article 26.052 without developing the
specific, detailed attorney qualifications that are necessary to meaningfully implement the
Legislature’s broad mandates, or the plan articulates specific attorney qualification
requirements that are unacceptably low and that are not capable of adequately screening
for qualified counsel.
D
The county plan sets out some capital attorney qualifications, but those qualifications do
not meet the minimum standards set forth either in article 26.052 or in the regional plan
applicable to that particular county.
F
The county plan fails to specify any particular qualifications for capital defense attorneys.
In addition, an increase of one letter grade was assigned to each county plan that makes no
distinction, on the basis of whether the state actually seeks the death penalty, in the qualifications
expected of lawyers appointed to capital cases.
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2. Attorney Compensation
County plans were graded on whether they include a fee schedule setting forth reasonable
attorneys fees, as well as a formalized procedure for appeal of fee reductions, as required by the
FDA.
The FDA requires county indigent defense plans to include fee schedules stating “reasonable”
compensation rates that “tak[e] into consideration reasonable and necessary overhead costs and
the availability of qualified attorneys willing to accept the stated rates.”
25
It is, of course, difficult
to objectively quantify a specific norm for what constitutes a “reasonable” rate. There is nothing
approaching a national consensus on this issue, as jurisdictions across the country pay widely
varying rates to capital defense counsel.
26
For purposes of this report, we therefore have taken a
very conservative approach to scoring county plans for the reasonableness of their capital
attorney compensation rates. We have not attempted to define what constitutes a reasonable rate.
Rather, we limited our review of compensation rates to scoring county plans based on whether
they state a clearly unreasonable rate. Considering the rates normally paid to capital defense
lawyers in Texas jurisdictions and in similar states around the country,
27
we believe no
reasonable person could contend that a compensation rate below $50 per hour is sufficient to
consistently attract attorneys with the experience, skills, and training necessary to provide quality
capital defense representation. Rates below $50 per hour clearly are outside the mainstream and
create an unacceptably high risk that a county will attract primarily inexperienced and
unqualified attorneys to handle capital cases. Such low rates also create unreasonable economic
pressures on capital defense attorneys that will induce some to provide representation that is less
than thorough, and thus will compromise the accuracy of the trial determination.
Using our conservative approach for purposes of this report, county plans that provide
compensation rates were considered minimally “reasonable” at $50 per hour and above. Scores
were lowered for county plans that provide a plainly unreasonable rate below $50 per hour. We
wish to emphasize that we do not endorse compensation rates of $50 and $60 per hour as
necessarily reasonable. We have adopted this low cut-off merely because, at this stage in the
development of capital defense standards in Texas, and in the absence of any present consensus
about exactly what is reasonable, we deem it most constructive to focus on those compensation
levels that are plainly unreasonable.
National norms explicitly disapprove of flat fees, caps on compensation, and lump-sum contracts
in death penalty cases because they have an adverse effect on effective representation.
28
Rather,
compensation should be based on the number of hours expended, and should take into account
the necessary attorney skills and experience and inherent complexities of capital representation.
Counties that impose caps on the fees paid to capital trial attorneys have adopted unreasonable
compensation structures outside national norms, and thus were assigned lower grades.
County plans were assigned higher grades if, in addition to meeting the FDA’s explicit
compensation requirements, they also incorporate reasonable procedures for attorney
compensation, such as procedures allowing a reasonable period of time after trial for submission
of fee requests or authorizing interim billing and attorney payments.
29
The latter procedure is
particularly important given the significant length of time between initiation of prosecution and
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completion of trial in many capital cases, and the substantial percentage of an attorney’s time
that must be devoted to defense of a single capital case over that period of time.
We assigned specific grades to county plans on the following basis:
A
The county plan provides a fee schedule stating reasonable hourly rates, and includes a
right to appeal the fee determination, a reasonable amount of time in which to file a fee
request, and provisions allowing for interim payment.
B
The county plan provides a fee schedule stating reasonable hourly rates, and includes a
right to appeal the fee determination.
C
The county plan provides a fee schedule stating reasonable hourly rates, but fails to
provide a right to appeal the fee determination.
D
The county plan sets forth a fee schedule, but that schedule provides for unreasonably
low hourly rates or sets an explicit cap on the amount an attorney can bill on a particular
matter (whether expressed as a number of hours or a dollar figure).
F
The county plan fails to specify a fee schedule for capital cases.
3. Expert and Investigator Expenses
County plans were graded on whether they comply with the FDA requirements that courts
reimburse all reasonable investigator and expert expenses, and that plans provide for
reimbursement of “reasonably necessary” expenses incurred even without prior court approval.
30
County plans that set generally applicable caps for expert and investigator expenses eligible for
reimbursement were deemed noncompliant with the FDA because such caps operate to disallow
reimbursement in specific cases for reasonable expenses that exceed the caps.
County plans were deemed to have exceeded the FDA’s requirements where, in addition to
providing reasonable fees and procedures for the payment of experts and investigator expenses,
they expressly provide for the use of a mitigation specialist in all death penalty cases. This
requirement further advances the FDA’s goal of improving access to necessary experts and
investigators in order to better afford quality representation to capital defendants.
31
We assigned specific grades to county plans on the following basis:
A
The county plan follows the language of the FDA, requiring compensation for all
reasonably necessary expenses related to investigators and experts with no caps or
requirement of pre-approval, and expressly allows use of a mitigation specialist in every
death penalty case.
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B
The county plan follows the language of the FDA, requiring compensation for all
reasonably necessary expenses related to investigators and experts with no caps or
requirement of pre-approval.
C
The county plan follows the language of the FDA, requiring compensation for all
reasonably necessary expenses related to investigators and experts without reference to
caps on those expenses, but also requires pre-approval before expenses are incurred.
D
The county plan provides for caps on expenses related to investigators and experts, but
with some provision for a discretionary override of those caps.
F
The county plan provides for caps on expenses related to investigators and experts, with
no provision for a discretionary override of those caps.
4. Fair and Neutral Selection of Counsel
County plans were graded on the extent to which they promote the independence of counsel by
providing for fair and neutral selection of counsel in capital cases, irrespective of which of the
three permissible attorney selection methods (e.g., standard rotation, public defender, or
alternative program) they choose. Many counties have special attorney selection procedures for
death penalty cases, and in those situations we evaluated the county on the basis of those capital
procedures alone. Other counties follow the same general attorney selection procedures in both
capital and noncapital cases, and in that circumstance the county’s grade is based on those
general procedures.
We assigned specific grades to county plans on the following basis:
A
The county plan adopts a particularly well-defined system of rotation that requires clear
articulation of any discretionary deviation and ensures that each approved lawyer
receives only one appointment per rotation.
B
The county plan adopts a basic rotation system, with allowance for reasonable variance
and with reasons therefore stated on the record.
C
The county plan purports to adopt a system of rotation for attorney selection, but the plan
poorly defines that system or allows significant use of unguided discretion on the part of
the individual judge.
D
The county plan makes some effort to articulate an attorney selection method, but does
no more than state that appointments will be made on a case-by-case or Alawyer of the
day@ basis.
F
The county plan fails to specify any method for selecting attorneys for appointment in
capital cases.
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5. Prompt Access to Counsel
The county plans were graded based on whether they meet the FDA’s specific time limits for
appointment of counsel, as well as on whether they comply with article 26.052’s requirement
regarding prompt appointment of both first-chair and second-chair defense counsel in capital
cases.
We assigned specific grades to county plans on the following basis:
A
The county plan imposes time requirements for appointment of capital-qualified counsel
more prompt than those mandated by the FDA, with specific reference to the appointment
of a second-chair lawyer.
B
The county plan provides for prompt appointment of capital-qualified counsel, with
specific mention of appointing a second-chair lawyer.
C
The county plan provides for prompt appointment of one capital-qualified lawyer, but
does not specifically mention appointing a second-chair lawyer.
D
The county plan provides for prompt appointment of one attorney, but does not make
reference to appointing a lawyer that is Acapital-qualified.”
F
The county plan fails to mention any time limits for the appointment of counsel, or fails
to comply with any of the specific FDA time limits for appointment of counsel.
In addition, an increase of one letter grade was awarded to each county plan that authorizes the
appointment of two lawyers, at least one of whom is capital-qualified, in any capital case,
without regard to whether the state chooses to seek the death penalty.
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IV. FINDINGS: ANALYSIS OF TRENDS AMONG REGIONAL
QUALIFICATION STANDARDS
While the FDA lays the groundwork for significant improvements in the quality of
representation provided to defendants facing the death penalty, it does so with broad language
that places a significant amount of responsibility on the local selection committees in each
administrative judicial region. The regional committees are charged with taking the lead in the
development of attorney qualification standards for capital cases, and in doing so they must meet
or exceed the minimum qualifications set forth in article 26.052.
With regard to some attorney qualifications, the Legislature specified certain minimum objective
criteria that local selection committees simply may incorporate directly into the regional attorney
qualification standards. With respect to other qualifications, however, the Legislature did not
mandate specific standards that are self-executing. Rather, the Legislature set general guidelines
for the standards each region is required to develop, and gave each regional selection committee
the responsibility for filling in the details with meaningful specificity and in a manner that
promotes the goals of the FDA. Chief among those legislative goals is improving the
qualifications of capital counsel so as to raise the standard of practice in death penalty cases.
The attorney qualification standards developed by a number of regions feature strong
qualification requirements that exceed, at least in some respects, the FDA’s minimum
requirements and/or give meaningful specificity to the statute’s broad mandates. These include:
• Standards requiring that attorneys appointed as lead counsel in death penalty cases be
board certified in criminal law or have more than five years’ experience in criminal
litigation, the minimum amount required by the FDA (e.g., Regions 2, 6, and 7);
• Standards requiring that attorneys appointed as lead counsel in death penalty cases have
at least five years’ experience in criminal defense, rather than in criminal litigation
generally (e.g., Region 5);
• Standards giving meaningful specificity to the FDA’s requirement that first-chair
appointed counsel have tried to verdict as lead defense counsel “a significant number of
felony cases” by specifying a number of felony trials that is sufficiently high to
effectively screen for qualified counsel (e.g., Region 2 (10 or more felony trials));
• Standards requiring second-chair counsel (and not just first-chair counsel) to meet
regional qualification requirements (e.g., Regions 2, 5, 6, and 7);
• Standards requiring attorneys to complete a specific amount of continuing legal education
in death penalty defense in order to stay on the regional list (e.g., Region 2 (20 hours
every two years)); and
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• Standards containing minimum qualifications that attorneys must meet in order to be
appointed as appellate counsel to defendants who have been sentenced to death (e.g.,
Region 2).
However, our review revealed that the attorney qualification standards adopted in more than half
of the administrative judicial regions plainly fail to meet one or more of the FDA’s requirements.
Critical deficiencies include:
• Failure to incorporate the FDA requirement that attorneys appointed as lead counsel have
tried to verdict as lead defense counsel a significant number of felony cases, including
homicide trials and other trials for offenses punishable as second- or first-degree felonies
or capital felonies (e.g., Region 5);
• Failure to incorporate the FDA requirement that attorneys appointed as lead counsel
exhibit proficiency and commitment to providing quality representation to defendants in
death penalty cases (e.g., Region 5);
• Failure to comply with the FDA requirement that administrative judicial regions adopt
attorney qualification requirements that are applicable throughout the entire region (e.g.,
Region 8).
• Failure to incorporate the FDA requirement that attorneys annually present proof of
ongoing continuing legal education in death penalty defense,
32
and that the local selection
committees review and remove from the list any attorney who fails to comply with this
training requirement (e.g., Regions 3, 4, 5, and 9); and
• Failure to adopt any formal procedures implementing the statutory requirement that the
local selection committees annually review the list of capital-qualified attorneys to ensure
that attorneys continue to satisfy the minimum requirements for quality representation
(e.g., Regions 3, 4, 5, and 9).
Several issues concerning regional capital attorney qualifications appear to warrant further
attention. Most notable of these is numerous regions’ failure to comply with the explicit
requirements of article 26.052, as the deficiencies listed above vividly demonstrate. Too many
regions simply have omitted one or more of the FDA’s qualification requirements from the
regional standards that are used to screen attorneys on the capital appointment list. Furthermore,
no mechanism is in place to enforce compliance with the statute, or even to monitor this issue.
Whereas the counties are required to submit their indigent defense plans to the Task Force on
Indigent Defense for publication,
33
the regions need only post their qualification requirements in
each district clerk’s office within the region.
34
Even finding and collecting all of the information
necessary to review the regional standards takes hours of effort.
35
One solution may be to assign
statewide oversight of the regional attorney qualification standards to the Task Force, which
already is charged with monitoring county-level indigent defense procedures across the state for
compliance with the FDA. Putting the regional attorney qualification standards before the Task
Force would both contribute to the transparency of each region’s practices and provide an arena
in which regional compliance with the FDA could be addressed.
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Another matter warranting attention is the regions’ failure, in most cases, to assume the
responsibility given them by the FDA to take the initiative in improving trial-level representation
in death penalty cases. In general, even those regions whose standards include all of the FDA’s
explicit minimum qualification requirements have failed to fulfill their responsibility to develop
criteria that meaningfully address other issues that the FDA mandates be included in the regional
standards. Only one region has adopted qualification standards that articulate a specific
minimum continuing legal education requirement for death penalty attorneys, or how many
felony trials constitute “a significant number” so as to qualify an attorney to receive a first-chair
appointment in a capital case. Furthermore, no region has tackled the issue of what an attorney
must do in order to “exhibit proficiency and commitment to providing representation to
defendants in death penalty cases,”
36
for example, by establishing a formalized and meaningful
peer review process or by utilizing performance-based measures to evaluate the quality of
representation provided by attorneys seeking capital appointments.
37
Performance-based
measures, which are not seen in any of the regional standards, are essential to any evaluation of
whether attorneys who meet objective experience requirements actually provide quality
representation in individual cases.
38
Rather than taking a leadership role in developing qualification standards for attorneys in capital
cases, as article 26.052 created them to do, the local selection committees in many of the
administrative judicial regions at best have parroted the language of article 26.052, without
filling in the specific details necessary for their standards to have any real meaning. The
Legislature plainly intended for the regional selection committees to fill in such details,
otherwise there would have been nothing for the regional committees to do and no point in
assigning them responsibility for developing regional standards. Moreover, on certain issues,
simply parroting the statutory language fails to state any meaningful standard. For example, by
itself, “a significant number” of trials could mean anything from two trials to twenty or more.
“Exhibit proficiency and commitment” is even more meaningless without responsible
elaboration. As a consequence, the regional qualification standards fail to provide any practical
tool for screening attorney qualifications, or to materially inform the public of the standards to
which attorneys who seek appointments in death penalty cases are being held. Moreover, such
regional qualification standards do not provide counties within the region sufficient guidance on
the issue of capital attorney qualifications, but instead leave counties in a situation in which they
have to correct the regional standards’ deficiencies in order to achieve bare compliance with the
FDA. With a few encouraging exceptions, the regional qualification standards represent a failure
to comply with the FDA and a missed opportunity to improve the quality of representation
available to defendants who are facing the death penalty.
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22
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V. SCORES FOR REGIONAL ATTORNEY QUALIFICATION
STANDARDS
Administrative Judicial Region
Attorney Qualification Standards
1
C
2
B
3
D
4
C
5
D
6
B
7
B
8
F
9
D
These scores reflect an evaluation of the qualification standards developed by each
administrative judicial region in Texas for attorneys seeking to be appointed to represent indigent
defendants in death penalty cases.
The scores show how well each region’s capital attorney qualification standards comply with the
requirements of the Texas Fair Defense Act.
The scores do not reflect the regional standard’s consistency with national norms developed by
the American Bar Association.
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24
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VI. SUMMARY DESCRIPTION OF REGIONAL QUALIFICATION
STANDARDS
Region 1
Region 1 essentially parrots the statutory language set forth in article 26.052, with one minor
alteration being that Region 1 requires experience in at least one capital case rather than
requiring experience in a significant number of felony cases, which may include capital felonies,
as mandated by the FDA. Experience in one capital trial might be valuable when assessing
attorney qualifications. Because, however, the region fails to satisfy the Legislature’s intent that
each region define what constitutes a “significant number of felony trials,” the attorney
qualifications are insufficiently stringent. Also, the requirement that counsel have experience in
one capital case effectively overlaps with the FDA requirement that counsel have experience in
presenting mitigating evidence at the penalty phase of a death penalty trial. Furthermore, the
region makes no attempt to define or quantify the FDA’s requirement of proficiency and
commitment to the defense of capital cases and, because of this failure, that requirement is
essentially overshadowed by objective experience criteria that do not focus on attorney
performance.
Region 2
Region 2’s efforts to apply the FDA are the most commendable among all of the regions. Region
2 has provided meaningful interpretation of most FDA requirements, consistent with legislative
intent. The region has fully adopted the language of article 26.052. In addition, Region 2 makes
both first- and second-chair counsel meet article 26.052 requirements, and requires that both
attorneys have at least 20 hours of continuing legal education in death penalty defense within the
previous two years. The region also has additional requirements for lead counsel, who must meet
at least three of the following four requirements: (a) Counsel in one or more death penalty cases;
(b) Counsel in 10 or more felony cases tried to a jury verdict as first chair; (c) Board Certified in
criminal law; or (d) 10 years’ experience with 25% or more of his or her practice devoted to
criminal law. The region attempts to exercise quality control over the capital attorney list by
requiring that lawyers previously determined to be capital-qualified reapply for inclusion on the
list in July, which results in a periodic review of attorney qualifications. The region also has
qualifications for appellate counsel. Region 2 deserves credit for its compliance with the FDA.
To improve on its score in this area, however, Region 2 must interpret the FDA’s mandate that
lawyers exhibit proficiency and commitment to capital representation. Performance standards,
such as those enumerated by the ABA, are the only effective way to ensure that lawyers actually
provide competent assistance and to give the FDA’s requirement meaningful specificity. Region
2’s efforts are encouraging and it is hoped that this region will continue to lead the way in Texas
by adopting and implementing performance standards.
Region 3
Region 3 merely parrots the statutory language of article 26.052 without providing any
meaningful interpretation of its mandates or explanation of how they are practically applied. The
region omits a significant portion of article 26.052(d)(2)(F)(4), which requires that attorneys
complete continuing legal education requirements relating to death penalty defense no later than
the second anniversary of the date on which an attorney is approved for capital appointment
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eligibility, and then each year following the second anniversary. This provision mandates some
minimum continuing education in death penalty defense and requires an ongoing screening of
the list for compliance with the training requirement. Region 3's omission sends the message
both that the region is failing to ensure that its lawyers are adequately trained and that it will
ignore the FDA’s periodic review mandate.
Region 4
Region 4 adopts the language of article 26.052 and defines a “significant number of felony trials”
as eight trials, including experience in a homicide case. However, the region’s standards do not
contain the requirement that attorneys complete death penalty defense training no later than the
second anniversary of the date their appointment eligibility is approved. The standards provide
no method for reviewing the list of capital-qualified lawyers for attorney compliance with the
continuing legal education requirement. While the region would have received a B for defining
“significant number of felony trials,” its failure to comply with the FDA’s crucial ongoing
training mandate causes a reduction in score.
Region 5
Region 5 fails to adopt key requirements of article 26.052. The region does not require that
attorneys “exhibit proficiency and commitment to providing quality representation to defendants
in death penalty cases.” The region fails to reference the requirement of experience in a
“significant number of felony cases,” and, therefore, fails to meaningfully interpret that mandate.
The region’s standards also do not include the FDA requirement that attorneys complete death
penalty defense training no later than the second anniversary of their placement on the capital
appointment list. However, the region does require that counsel have: (a) prior experience, as
lead counsel or co-counsel, in the trial of at least one capital case in which the death penalty was
sought; (b) “significant and continuing education in criminal law;” and (c) five years’ litigation
experience in criminal defense. The Region also has some standards for second-chair counsel,
which include experience in at least three felony cases, at least one being murder or an
aggravated first-degree felony. While it adds some qualifications to those specified by the FDA,
the region omits significant, non-discretionary portions of article 26.052, thus substantially
reducing its minimum attorney qualifications.
Region 6
Region 6 adopts most of the qualification standards required by article 26.052. The region
appears to have recognized that article 26.052 contains minimum, non-discretionary standards
and, therefore, it requires eight years of criminal litigation experience instead of the statutory
requirement of five years. It also requires that lead counsel have experience as counsel in at least
one death penalty case that was tried to conclusion, and that second-chair counsel “exhibit
proficiency and commitment to providing quality representation to defendants in death penalty
cases” and have five years’ experience in criminal litigation or board certification. While its
standards do not define what constitutes “a significant number” of felony trials, it is clear that
region 6 is making an effort to ensure that death penalty defendants receive consistent, quality
representation, and to promote the practical application of article 26.052 by giving definition to
some of its key provisions. While Region 6 garnered a “B” score, it should be noted that there is
room for improvement in this category. Region 6 should fully implement the FDA by providing
meaningful specificity to its “significant number” of trials requirement and by enumerating
26
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performance standards that are consistent with the ABA Guidelines and that define the
requirement that lawyers exhibit proficiency and commitment to death penalty representation.
Region 7
Region 7 adopts most of the qualification standards required by article 26.052. The region
appears to have recognized that article 26.052 contains minimum, non-discretionary standards
and, therefore, it requires ten years of criminal litigation experience instead of the statutory
requirement of five years. It also requires that lead counsel have experience as counsel in at least
one death penalty case that was tried to conclusion, and that second-chair counsel “exhibit
proficiency and commitment to providing quality representation to defendants in death penalty
cases” and have five years’ experience in criminal litigation or board certification. While its
standards do not define what constitutes “a significant number” of felony trials, it is clear that
Region 7 is making an effort to ensure that death penalty defendants receive consistent, quality
representation, and to promote the practical application of article 26.052 by giving definition to
some of its key provisions. While Region 7 garnered a “B” score, it should be noted that there is
room for improvement in this category. Region 7 should fully implement the FDA by providing
meaningful specificity to its “significant number” of trials requirement and by enumerating
performance standards that are consistent with the ABA Guidelines and that define the
requirement that lawyers exhibit proficiency and commitment to death penalty representation.
Region 8
Region 8 has not promulgated or submitted any regional attorney qualification criteria. Instead, it
appears to have approved the attorney qualification standards submitted by Tarrant County. It is
unclear whether these standards are applied throughout the region as a whole. Because the FDA
was clear in its mandate that each region must adopt regional standards, and because regional
standards are necessary to ensure consistency and meaningful implementation of article 26.052,
Region 8 receives an “F” for its failure to develop and enforce appropriate attorney qualification
criteria applicable region-wide.
Region 9
Region 9 merely parrots the statutory language of article 26.052 without providing any
meaningful interpretation of its mandates or explanation of how they are practically applied. The
region omits a significant portion of article 26.052(d)(2)(F)(4), which requires that attorneys
complete continuing legal education requirements relating to death penalty defense no later than
the second anniversary of the date on which an attorney is approved for capital appointment
eligibility, and then each year following the second anniversary. This provision mandates some
minimum continuing education in death penalty defense and requires an ongoing screening of
the list for compliance with the training requirement. Region 9's omission sends the message
both that the region is failing to ensure that its lawyers are adequately trained and that it will
ignore the FDA’s periodic review mandate.
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28
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VII. FINDINGS: ANALYSIS OF TRENDS AMONG COUNTY PLANS
While the FDA and the regional attorney qualification standards establish certain parameters for
indigent defense procedures in death penalty cases, it is the counties that bear primary
responsibility for developing the specific practices followed by local officials. The Legislature
made a commitment to increasing fairness and accuracy in capital proceedings when it enacted
the FDA, but this commitment is one that cannot be fulfilled unless county officials
conscientiously implement the statute. The county plans, therefore, provide crucial information
revealing whether the FDA’s reforms are being realized on the ground.
The overall conclusions from our review of county indigent defense procedures are mixed, but
highlight some encouraging trends. A number of counties have adopted procedures that
successfully meet the fair defense benchmarks set by the Legislature for death penalty cases, and,
in certain cases, even exceed those benchmarks. Almost all of the county plans successfully
implement at least one of the core improvements required under the FDA. Especially considering
the FDA’s complexity and the low standards that prevailed in many counties prior to its
enactment,
39
this progress toward improving access to counsel and the quality of representation
in capital cases is important. However, it must be viewed in light of the fact that an
overwhelming majority of counties fails to comply with one or more of the FDA’s mandates
concerning death penalty cases. In fact, only two of Texas’s most active death penalty counties
fully comply with FDA provisions governing capital representation. Even more troubling, a
small number of counties that actively impose the death penalty ignore those mandates
altogether. Full implementation of the FDA remains an aspiration, as does the increased
reliability this will bring to capital proceedings in Texas. The following discussion of county
practices provides a more detailed analysis of areas in which advances have been made, as well
as where further improvements are needed.
A.
Attorney Qualifications
A full adversarial testing of the prosecution’s evidence is essential to ensuring a fair and accurate
outcome in any criminal case,
40
and is particularly crucial when the defendant faces death, a
sentence that once carried out cannot be corrected or reversed. This testing can be achieved only
if the defendant receives quality representation that allows him or her to meet the state’s case,
and prepare and present available defenses to the capital charge.
41
Defendants facing the death
penalty will not receive thorough, quality representation unless officials appoint qualified and
committed attorneys to their cases. The FDA attempts to improve the reliability and fairness of
death sentences in Texas by promoting the appointment of qualified counsel in capital cases.
Many county plans incorporate attorney qualification standards for death penalty cases that meet
or exceed the minimum qualification requirements for capital attorneys set forth in article
26.052. Counties achieve this outcome either by establishing strong qualification standards in
their own plans, by directly adopting compliant standards promulgated by the administrative
judicial region in which they are located, or by appointing attorneys from a regional list of
29
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counsel, all of whom have been found to meet compliant regional standards. Other best practices
that improve access to qualified counsel include:
• Standards requiring that attorneys appointed as lead counsel in death penalty cases have
more than five years’ experience in criminal litigation, the minimum required by the FDA
(e.g., Ector (8 years), Harris (8 years), and Randall (6 years) counties);
• Standards that give meaningful specificity to the FDA’s general requirement that first-
chair appointed counsel have tried to verdict as lead defense counsel “a significant
number of felony cases” by specifying a number of felony trials that is sufficiently high
to effectively screen for qualified counsel (e.g., Bexar (8 jury trials), Brazoria (8 jury
trials), Ector (15 jury trials including 2 capital trials for first chair, 10 jury trials for
second chair), Harris (15 jury trials including 2 capital cases for first chair, 10 jury trials
for second chair), Lubbock (15 jury trials including 2 capital cases), and Randall (10 jury
trials including 2 homicides) counties);
• Standards requiring attorneys who seek to be included on the list of capital-qualified
counsel to pass an exam upon completing a Capital Certification Course (e.g., Harris
county);
• Standards requiring attorneys who seek to be included on the list of capital-qualified
counsel to be approved by a peer review advisory committee, as well as by a majority of
district court judges voting by secret ballot (e.g., Harris county); and
• Standards requiring second-chair counsel (and not just first-chair counsel) to meet
regional qualification requirements (e.g., Brazoria, Brazos, El Paso, Lubbock, and
Tarrant counties).
About half of the county plans fail to meet FDA attorney qualification requirements, however.
Deficiencies include:
• Failure to specify objective attorney qualification requirements for capital cases (e.g.,
Cameron, Dallas, and Nueces counties);
• Procedures articulating county qualification standards that fail to incorporate one of the
FDA’s explicit qualification requirements for capital counsel or one of the qualification
requirements adopted by the administrative judicial region in which the county is located
(e.g., Brazoria county);
• Procedures adopting regional qualifications standards that do not comply with the FDA,
and/or calling for appointment of counsel from regional lists of capital-qualified counsel
that were screened under noncompliant standards (e.g., Bell, Bowie, Ellis, McLennan,
and Travis counties); and
• Standards that implement the FDA’s requirement that first-chair appointed counsel have
tried to verdict as lead defense counsel “a significant number of felony cases” by
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specifying a number of felony trials that is unacceptably low and does not effectively
screen for qualified counsel (e.g., Collin (2 jury trials, none of which need be felonies),
Potter (3 trials, only 2 of which need be felonies), Randall (5 felony trials, only 2 of
which need be tried to verdict), and Walker (4 jury trials, none of which need be felonies)
counties).
The attorney qualification provisions raise a few additional issues for further consideration.
Foremost, our analysis places in stark relief the practical consequences of the administrative
judicial regions’ general failure to fulfill their obligation to develop regional attorney
qualification standards that comply with the FDA. A clear majority of counties attempt to meet
the FDA’s qualification requirements simply by adopting the qualification standards and/or the
list of qualified attorneys approved by the appropriate administrative judicial region. Those
counties located in the few regions that have successfully discharged their responsibilities under
article 26.052 reap the benefit of attorney qualification standards that promote competent
representation in their courts. In contrast, counties that are trying to comply with the FDA, but
that are located in non-compliant administrative judicial regions, must work around regional
standards that do not meet even the minimum requirements of the statute. Commendably, a
number of counties in noncompliant regions have taken up the slack and developed their own
qualification standards that meet or exceed the FDA’s requirements. These counties recognize
that they ultimately bear the consequences when a capital defendant receives inadequate
representation in their courts, a situation that produces convictions that are unreliable and
vulnerable to costly attacks on appeal. However, many counties either fail to recognize or have
failed to correct, at the local level, the deficiencies in their regional standards. Counties in this
latter group must be held accountable for their failure to act and for the qualifications of counsel
they appoint to represent capital defendants. Nonetheless, it is undeniable that the Legislature
clearly intended that counties should be able to rely on their administrative judicial regions to
assist in discharging this duty. Bringing the regional attorney qualification requirements into
compliance with the FDA would fulfill this legislative intent. It also would be an efficient way to
improve the qualifications of counsel appointed to capital cases in a substantial number of Texas
counties, with just a few appropriate amendments to the regional standards.
Second, like the regional attorney qualification standards, current county-level qualification
requirements suggest a need for consideration of additional evaluation criteria that focus more on
whether an attorney actually provides quality representation to indigent defendants and less on
whether an attorney is “qualified,” on paper, to handle capital cases. A more outcome-based
screening system would place increased emphasis on whether attorneys possess specific skills
necessary to provide quality representation to death penalty defendants and on whether they
regularly meet performance-based measures of quality representation.
42
Even the best of the
attorney qualifications standards we reviewed were concerned almost exclusively with appointed
counsel’s past experience in criminal litigation. However, past experience, even when
substantial, is not always a reliable indicator of whether an attorney is qualified to represent a
defendant facing the death penalty.
43
The FDA acknowledges the limitations of objective,
quantitative measures of an attorney’s qualifications by requiring judges, as a group at the county
level, to engage in a subjective assessment of ability and skill before approving an objectively
qualified attorney’s placement on the list of lawyers eligible to represent indigent defendants.
The FDA also requires attorneys to exhibit “proficiency and commitment to providing quality
31
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representation to defendants in death penalty cases,” in addition to meeting more objective
qualifications, before they can be approved to receive capital appointments. Existing county
qualification standards do little, if anything, to specify how judges should assess attorneys’ more
subjective qualifications, and thus are incomplete tools for identifying those attorneys who will
provide high-quality representation in capital cases.
B.
Attorney Compensation
So long as Texas counties overwhelmingly rely on private appointed counsel to defend capital
cases, adequate attorney compensation will be one of the most important factors, if not the most
important factor, affecting a county’s ability to attract qualified counsel to represent indigent
defendants in criminal cases. It also provides the primary external incentive likely to motivate
counsel to devote to a case all of the time and effort it may require. Compensation is a
particularly vital consideration in death penalty cases, given the extreme burden these cases place
on private counsel. For example, a 1993 study of capital representation in Texas concluded that
“more experienced attorneys are refusing to accept court appointments in capital cases because
of the time involved, the substantial infringement on their private practices, the lack of
compensation for counsel fees and expert services and the enormous pressure that they feel in
handling these cases.”
44
Compensation therefore is not simply, or even primarily, an issue of
attorney income, but can have a direct and substantial impact on the quality of representation
available to defendants facing the death penalty.
A number of county plans include good attorney compensation provisions specifying that capital
counsel will be paid on the basis of a straight hourly fee within national norms for time
reasonably expended, in a manner consistent with State Bar of Texas and ABA standards.
45
Many of these plans also comply with the specific FDA provision requiring counties to afford
attorneys a right to appeal judicial orders denying compensation in whole or in part. Best
practices exceeding the FDA’s compensation requirements include:
• Procedures creating a mechanism for attorneys to submit interim bills and receive interim
payments in capital cases (e.g., El Paso county); and
• Procedures providing attorneys more than one opportunity to appeal an unfavorable
judicial determination regarding compensation (e.g., El Paso county).
Unfortunately, however, our review revealed that many more county plans specify attorney
compensation rates that are clearly unreasonable, or contain other compensation provisions that
serve as barriers to effective representation. Shortcomings include:
• Procedures placing limits on compensable time for attorney work, either by capping the
number of hours that an attorney may work or by capping the fee that will be paid,
thereby discouraging competent and thorough pretrial investigation, research, discovery,
motion practice, and trial preparation (e.g., Bexar, Bowie, Fort Bend, Harris, Jefferson,
Johnson, Smith, and Walker counties);
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• Procedures specifying hourly rates for first-chair and/or second-chair counsel that are
clearly unreasonable and that fail to provide for adequate compensation of capital trial
attorneys, thereby forcing attorneys to choose between subsidizing the defense they are
appointed to provide, or else furnishing substandard representation (e.g., Brazos, El Paso,
Hidalgo, Potter, and Randall counties);
• Failure to specify any rates for capital attorney compensation (e.g., Cameron and Dallas
counties);
• Procedures specifying fee ranges so broad that they arguably circumvent any meaningful
statement of the actual fee rate that the attorney can expect to be paid (e.g., Ector, Fort
Bend, Galveston, Potter, Randall, and Travis counties);
• Procedures that require attorneys to submit invoices within an extremely short period of
time after trial (e.g., 15 or 30 days) or forfeit compensation (e.g., Bowie, Brazos,
Johnson, Midland, Smith, Taylor, Travis, and Walker counties); and
• Failure to include procedures by which attorneys can appeal judicial orders denying, in
whole or in part, requests for compensation (e.g., Collin, Ellis, Fort Bend, Midland,
Navarro, Nueces, Randall, Tarrant, Travis, and Wichita counties).
Our review indicates that many counties could benefit from Task Force guidance on what
constitutes a reasonable fee for attorneys representing defendants in death penalty cases. A
significant number of the counties we reviewed set compensation at unreasonably low rates,
either by specifying a low hourly rate, a range of discretionary rates below reasonable norms at
least in part, or a cap that limits the amount of case preparation for which an attorney can be
compensated. These low rates operate across the state to discourage qualified attorneys from
accepting capital appointments, and provide an incentive for attorneys who are appointed to
capital cases to limit inappropriately the amount of work they perform. Data is available on
attorney overhead rates in Texas
46
and on capital compensation rates in most of the other states
that impose the death penalty,
47
both of which could be used by Texas counties to design
reasonable fee structures. The Task Force should work to ensure that this information is
accessible to county officials, and encourage counties to address deficiencies in their current fee
schedules that compromise representation in death penalty cases.
C.
Expert and Investigator Expenses
Death penalty cases require particularly thorough investigation that must focus on developing
both factual matters pertinent to the guilt-innocence phase and a complete social history for the
sentencing phase of trial.
48
These cases also frequently involve issues that require expert
testimony in fields such as psychology and forensics. The availability and adequacy of
compensation for investigators and experts therefore is a crucial factor in a capital trial attorney’s
ability to prepare and present an adequate defense, and to put all relevant information before the
jury that will decide whether the accused, if convicted, should live or die. Moreover, the
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prosecution almost always makes heavy use of investigators and experts in capital cases, making
access to similar expertise for the defense critical to a fair trial and an accurate outcome.
A number of the county plans we reviewed promote access to experts and investigators by
including procedures that allow for reimbursement of reasonable expenses for these services,
whether sought before or after the expenses are incurred, as required by the FDA. The majority
of county plans do not comply with the FDA’s provisions regarding expert and investigator
expenses, however. Most notably, more than half of the county plans fail to include procedures
for reimbursement of reasonable expert and investigator expenses incurred without prior court
approval in capital cases. Although a number of counties recently amended their plans to allow
for reimbursement of expenses incurred without prior approval in noncapital cases,
49
many of
them failed to include a similar provision with respect to capital cases. The Task Force should
work with county officials to correct this oversight. Other plan deficiencies that warrant further
county and Task Force attention include:
• Procedures establishing caps on reimbursable expert and investigator expenses, which
operate to disallow reimbursement in specific cases for reasonable expenses that exceed
the caps (e.g., Bexar, Bowie, Brazos, El Paso, Fort Bend, Johnson, Smith, and Walker
counties); and
• Failure to include any procedures for reimbursement of reasonable expert and
investigator expenses in capital cases (e.g., Cameron, Dallas, Collin, Randall, and Tarrant
counties).
D.
Fair and Neutral Selection of Counsel
The attorney selection method is fairly understood as the heart of each county plan because all
other plan provisions must coordinate with it.
50
Most importantly, a fair and neutral attorney
selection method and a carefully screened list of attorneys who meet well-tailored qualification
requirements must work together if a county plan is to satisfy the FDA’s mandate that
appointments be allocated “among qualified attorneys in a manner that is fair, neutral, and
nondiscriminatory.”
51
A fair and neutral attorney selection method also avoids the appearance of
judicial favoritism in appointment decisions, promotes the independence of counsel, and operates
to maintain roughly equal capital workloads among all qualified attorneys, a factor that is
particularly important given the considerable amount of work involved in representing even a
single capital client.
The county plans we reviewed comply with the FDA’s attorney selection method requirements
more frequently than they comply with any other core FDA reform. About half of the county
plans we reviewed adopt the FDA’s standard rotation system or a modified version of that
system that is consistent with FDA mandates.
52
Many of the rotation systems incorporate best
practices such as:
• Procedures providing for administration of the rotating attorney appointment system by
someone other than the judge presiding over the case on the merits, such as a professional
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administrator, a magistrate, or a rotating appointments judge (e.g., Bell, El Paso, Potter,
and Travis counties);
• Procedures limiting the number of capital appointments that a single attorney may receive
each year (e.g., Walker county);
• Procedures limiting discretion to skip the next lawyer on the list of qualified counsel
(e.g., Harris county); and
• Procedures specifying that if an attorney is appointed out of order then he or she may not
get another appointment until all other attorneys on the list have received an appointment
(e.g., Brazos county).
Some rotation plans relax the FDA’s standard rotation procedures in ways that can severely
compromise neutrality in the selection process and that may lead to serious workload
imbalances. These shortcomings include:
• Procedures establishing a poorly defined attorney selection method for capital cases that
allows judges to exercise largely unguided discretion in making departures from the
rotation list (e.g., McLennan, Midland, Navarro, and Randall counties);
• Procedures that fail to articulate any standardized attorney selection method for capital
cases and instead allow case-by-case assignment of counsel according to the court’s
discretion (e.g., Bexar and Galveston counties); and
• Failure to specify key procedures needed to operate a rotation system for capital cases,
including what orders are needed to appoint, who makes the appointments, what
appointment lists are used, who decides when and how to skip lawyers in the rotation,
and the consequences of a lawyer being skipped (e.g., Bowie, Cameron, Dallas, Ector,
Fort Bend, Jefferson, Liberty, Nueces, and Smith counties).
E.
Prompt Access to Counsel
In passing the FDA, the Legislature affirmed that prompt access to capital-qualified counsel is
essential to affording defendants adequate representation in death penalty cases. Unless the
authorities appoint counsel quickly after the police arrest an accused on capital charges,
witnesses and other evidence may be lost forever, as may time that is crucial to responsible
preparation of the defense case. Exhaustive research of factual and legal issues pertinent to all
colorable defenses is particularly important in the capital context due to the complexity and
unparalleled potential consequences of these cases.
53
The FDA recognizes the exceptional
workload faced by capital attorneys, and the need for defense work to begin quickly, by
requiring the timely appointment of two attorneys in capital cases, even before the state has filed
notice of its intent to seek the death penalty.
54
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A number of counties fully comply with the FDA’s requirements regarding prompt access to
counsel, and have adopted plans incorporating all of the FDA’s specific time limits for
appointment of counsel, as well as procedures assuring prompt appointment of second-chair
counsel in death penalty cases. A few county plans articulate appointment practices that may
enable capital defendants to access counsel even more promptly than the FDA requires. These
best practices include:
• Procedures requiring officers to prepare the paperwork needed to establish probable
cause before a person may be booked into the county jail, minimizing delayed reports as
a cause of delayed initial post-arrest hearings (e.g., Galveston, Harris, Liberty, and Tom
Green counties);
• Procedures authorizing magistrates or administrators to immediately appoint qualified
counsel (from a rotating list pre-approved by the judges) following the initial post-arrest
hearing, a procedure that can result in access to counsel up to 96 hours faster than the
FDA’s outside time limit
55
(e.g., Collin, Smith, and Travis counties);
• Procedures requiring initial post-arrest hearings to be held within 24 hours or earlier after
arrest, which is sooner than the FDA’s 48-hour outside limit (e.g., El Paso, Galveston,
Smith, and Tom Green counties);
• Procedures requiring magistrates to request appointment of counsel for defendants whom
they suspect of being mentally incompetent to request counsel for themselves (e.g., Bell,
El Paso, Hidalgo, and Tom Green counties);
• Procedures designating an administrator who is charged with monitoring orders regarding
appointment of counsel so as to ensure that all defendants receive prompt access to
counsel within the FDA’s time limits (e.g., Bell county); and
• Procedures requiring attorneys to certify that they have initiated prompt contact with each
client (e.g., Bexar, Brazoria, El Paso, Potter, Tom Green, and Travis counties).
Many other plans plainly fail to meet the FDA’s requirements regarding prompt access to
counsel. Strikingly, more than half of the counties reviewed have failed to adopt procedures for
appointing second-chair counsel in capital cases. This failure not only contravenes an explicit
requirement of the FDA, but also, and more significantly, presents a substantial barrier to
adequate defense preparation in cases in which the accused may face the death penalty. Other
prompt access shortcomings include:
• Procedures that do not require the appointment of capital-qualified counsel prior to
indictment, allowing less experienced attorneys to be appointed in capital cases prior to
indictment (e.g., Cameron, Jefferson, and Smith counties);
• Procedures calling for appointment of capital-qualified counsel “as soon as practicable”
or in other vague terms that do not comply with the FDA’s specific time requirements
(e.g., Bexar and McLennan counties);
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• Procedures requiring appointment of second-chair counsel only if the state files notice of
its intent to seek the death penalty, contrary to the FDA’s explicit requirements (e.g.,
Tarrant); and
• Failure to specify procedures needed to meet one or more of the FDA’s specific timing
requirements (e.g., Dallas county).
Our review demonstrates that officials would benefit from further Task Force guidance on those
FDA prompt access requirements that are specific to capital cases. The Task Force, through its
grant program, has worked closely with counties over the past two years to promote timely
access to counsel, focusing on the specific FDA time limits applicable to capital and non-capital
cases alike.
56
As a result of the Task Force’s grant initiative, virtually all county plans now
comply with the FDA’s general provisions regarding the timing of access to counsel. As our
analysis shows, however, county practices are far from uniform in providing defendants who
may face the death penalty with prompt access to two appropriately qualified attorneys, as
required by the FDA. Capital defendants’ timely access to counsel warrants the same careful
Task Force attention that noncapital defendants’ access to counsel has received.
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38
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VIII. SCORES FOR COUNTY PLANS
County
(Region)
Death
Penalty
Sentences
Since
1976
Attorney
Qualif-
ications
Attorney
Compen-
sation
Expert &
Investigator
Expenses
Attorney
Selection
Method
Prompt
Access to
Counsel
Anderson (1)
5
C
D
F
A
F
Bell (3)
6
C
B
B
C
B
Bexar (4)
66
B
D
D
D
D
Bowie (1)
16
C
D
D
F
C
Brazoria (2)
7
B
B
B
B
B
Brazos (2)
12
B
D
D
A
C
Cameron (5)
16
F
F
F
F
D
Collin (1)
11
C
C
F
B
F
Dallas (1)
89
F
F
F
F
F
Denton (8)
7
F
F
F
F
F
Ector (7)
6
B
D
F
F
C
El Paso (6)
16
D
C
F
A
C
Fort Bend (2)
8
B
D
D
F
C
Galveston (2)
9
B
D
C
B
C
Harris (2)
268
B
D
C
B
C
Hidalgo (5)
11
B
C
B
B
B
Jefferson (2)
22
B
D
C
F
D
Johnson (3)
5
C
D
D
B
C
Liberty (2)
6
B
B
C
D
B
Lubbock (9)
19
B
B
B
B
B
McLennan (3)
14
D
C
D
C
C
Montgomery (2)
16
B
B
C
B
B
Navarro (3)
10
C
C
B
C
C
Nueces (5)
22
F
D
F
D
C
Potter (9)
15
D
D
B
B
B
Randall (9)
9
B
D
F
C
B
Smith (1)
19
C
D
D
D
D
Tarrant (8)
57
B
C
F
B
C
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Taylor (7)
7
B
B
C
C
B
Tom Green (7)
6
B
C
B
B
C
Travis (3)
14
C
C
C
A
C
Walker (2)
8
B
D
D
B
B
Wichita (8)
7
C
C
C
B
C
The 33 Texas counties listed in the chart above are those counties in which five or more death
sentences have been imposed since 1995, when the first set of significant legislative reforms
concerning capital trial representation was enacted.
57
The scores are based on how well each county’s indigent defense plan complies with core
requirements of the Texas Fair Defense Act as they relate to providing representation in capital
cases.
These scores do not necessarily reflect the county plan’s consistency with national norms
developed by the American Bar Association.
40
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IX. SUMMARY DESCRIPTIONS OF COUNTY PLANS
Anderson County
The plan requires magistrates to provide arrestees statutory warnings within 24 hours of arrest,
which is faster than the 48-hour outside time limit specified by the FDA, but does not reference
other FDA time limits for prompt access to counsel. The plan does not contain procedures for
prompt appointment of second-chair counsel. The plan adopts a standard FDA rotation system
for appointment of counsel. A Counsel Coordinator appoints the next attorney from lists that are
graduated according to the severity of the offense, unless the accused already has been appointed
counsel in another case and former counsel is qualified to handle the new case. The plan does not
meaningfully interpret the requirements of article 26.052, but rather merely parrots the statutory
language and fails to reference the regional list or standards in its qualifications. The plan
establishes caps on compensation for both first- and second-chair counsel. The plan does not
contain any procedures for reimbursement of expert and investigator expenses in capital cases.
Bell County
The plan adopts a standard FDA rotation system under which attorneys are appointed from a list
of qualified counsel. Prompt appointment provisions apply to capital cases, and there is a specific
reference to prompt appointment of second-chair counsel. While Bell County adopts a well-
constructed rotation system maintained through an Indigent Defense Coordinator who makes
attorney appointments in noncapital cases, the plan provides that a District Judge is responsible
for the appointments in capital cases. The Plan does not describe the procedures this judge is to
follow when making capital appointments. Bell County defines a “significant number of trials”
as only five, and requires that lawyers be included on the regional list for the Third
Administrative Judicial Region of Texas. Region 3 received a “D” score for merely parroting the
statutory language of article 26.052 without meaningful interpretation, and for failing to comply
with the FDA requirement that the local selection committee engage in ongoing annual reviews
of attorney training. The Bell County plan does not require that capital attorneys demonstrate
proficiency and commitment to representing death penalty defendants, but instead demands
“professionalism and reliability” of them, thereby shifting the emphasis to judicial convenience.
The plan provides for reasonable attorney compensation, sets no caps on attorney compensation,
and provides a right to appeal a judicial denial of compensation. Attorneys are compensated on
the basis of a straight hourly fee for time reasonably expended, as recommended by Texas State
Bar and ABA standards. The plan allows compensation for investigator and expert expenses
without caps or prior approval.
Bexar County
Prompt appointment provisions are vague, as the plan calls for appointment “as soon as
practicable” after the charges are filed. This provision applies both to the appointment of first-
and second-chair counsel. The plan allows the presiding judge to devise his or her own attorney
assignment procedures. The plan does not require any sort of rotation system for capital case
attorney selection, and instead allows case-by-case assignment pursuant to judicial discretion.
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The plan requires that counsel be on the Fourth Administrative Judicial Region’s list, and
specifies that lead counsel must have tried eight jury trials, including homicides, before being
included on the county list. The plan sets a cap on funds available for investigator compensation
at $1,500. The plan includes straight hourly fees for attorney compensation, but sets an
unreasonably low cap on hours expended at 100 hours of out-of-court time. This cap
impermissibly discourages competent pretrial practice and investigation.
Bowie County
The plan provides positive procedures to ensure the prompt appointment of counsel in capital
cases, but fails to reference the required prompt appointment of second-chair counsel. The plan
does not specify an attorney selection method. Counsel must meet the First Administrative
Judicial Region’s standards, which merely parrot the language of article 26.052 without
meaningful interpretation. The plan requires that counsel meet “additional requirements” before
being considered qualified for appointment, but does not specify what those requirements are.
The plan fails to include provisions for reimbursement of reasonable and necessary investigator
and expert expenses incurred without prior court approval. The plan sets caps on funds available
for expert and investigator compensation at $2,500. The plan includes a straight hourly fee for
attorney compensation, but sets a cap for attorney compensation for both first- and second-chair
attorneys and requires that invoices be submitted within 15 days of trial.
Brazoria County
Prompt appointment provisions apply to capital cases, and there is a specific reference to prompt
appointment of second-chair counsel. This plan adopts a standard FDA rotation system.
Attorneys are appointed from the list of capital-qualified attorneys. Both first- and second-chair
counsel must meet the requirements of article 26.052, be on the regional list, and have tried as
lead counsel eight jury cases involving homicide, first-degree felonies, or second-degree
felonies. It should be noted, however, that although Brazoria County includes article 26.052’s
minimum attorney qualification requirements, the county fails to adopt the more stringent
standards enumerated by Region 2. The plan allows compensation for investigator and expert
expenses without caps or prior approval. The plan provides for reasonable attorney
compensation, sets no caps on attorney compensation, and provides a right to appeal a judicial
denial of compensation. Attorneys are compensated on the basis of a straight hourly fee for time
reasonably expended, as recommended by Texas State Bar and ABA standards.
Brazos County
The plan provides for prompt appointment of counsel in capital cases, but fails to reference the
required prompt appointment of second-chair counsel. This is an alternative plan using a
standard rotation system, subject to reasonable exceptions. If an attorney is appointed out of
order, the attorney does not get another appointment until all other attorneys on the list have
received an appointment. Attorneys must be included on the regional list and meet the
requirements of article 26.052 for appointment. Region 2 received a “B” for attorney
qualifications, which means that its objective qualifications meet or exceed FDA requirements,
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but which does not necessarily signify that all appointed attorneys actually are providing the
necessary quality legal representation in capital proceedings. Objective qualifications, such as
those used in Brazos County under the Region 2 standards, focus exclusively on an attorney’s
past experience rather than his or her actual performance. The plan does not distinguish between
qualifications for first- and second-chair counsel. Attorneys must be approved by all three district
judges in order to be placed on the Brazos County capital list. The plan allows for removal of
attorneys from the capital list upon a showing that the attorney is “not fully competent.” The plan
fails to include provisions for reimbursement of reasonable and necessary investigator and expert
expenses incurred without prior court approval, and sets an unreasonably low cap on funds
available for investigator compensation at $500, absent a showing of extraordinary
circumstances. The plan sets forth straight hourly compensation for attorneys, but fails to
compensate second-chair attorneys within reasonable norms if paid at the low end of the
discretionary range. The plan also provides for a flat rate per case for both attorneys at an
unreasonably low rate. It is unclear who makes the choice between the hourly and flat rate. The
plan requires invoice submission within 30 days of trial.
Cameron County
This plan does not comply with basic FDA requirements and does not substantially address
capital representation. The plan does not require the appointment of capital-qualified counsel
prior to indictment, allowing less experienced attorneys to be appointed prior to indictment. The
plan fails to reference the required prompt appointment of second-chair counsel. The plan fails to
specify an attorney selection method or objective attorney qualifications. The plan apparently
allows each individual judge to devise his or her own attorney assignment procedures and
qualification criteria. The issues of attorney, expert, and investigator compensation are not
addressed.
Collin County
This plan attempts to promote the prompt appointment of counsel, specifying that in capital cases
appointments are to be made “immediately.” Accordingly, appointments in capital cases could be
made more quickly than in other cases, but this time limit is vague and unenforceable. The plan
does not include FDA prompt appointment time limits. Specific reference is made to
appointment of second-chair counsel. This plan adopts a standard FDA rotation system.
Appointments are made from a list of capital-qualified attorneys that is available on the Internet.
Attorneys must be included on the regional list to be considered for appointment. Regional
standards for Region 1 merely parrot the language of article 26.052 without meaningful
interpretation. The plan makes no distinction between qualifications for first- and second-chair
counsel, but requires only that lead counsel have tried two jury cases. Two jury trials do not
constitute the significant trial experience required for competent representation and compliance
with article 26.052. The plan fails to include provisions for reimbursement of reasonable and
necessary investigator and expert expenses. Attorneys are compensated on the basis of a straight
hourly fee for time reasonably expended, as recommended by Texas State Bar and ABA
standards. The plan fails to include a right to appeal a judicial determination regarding attorney
compensation.
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Dallas County
The plan submitted by Dallas County specifically excludes capital cases. No provisions relating
to attorney appointment, selection, or qualifications in capital cases are included. The issues of
attorney, expert, and investigator compensation are not addressed.
Denton County
The plan submitted by Denton County specifically excludes capital cases. No provisions relating
to attorney appointment, selection, or qualifications in capital cases are included. The issues of
attorney, expert, and investigator compensation are not addressed.
Ector County
This plan requires the prompt appointment of counsel in capital cases, but fails to reference the
prompt appointment of second-chair counsel. Each judge is permitted to develop an individual
attorney selection system and to determine many of the specific terms and procedures for his or
her own system. The plan does not include any of the actual procedures and methods for attorney
selection that may have been designed and adopted by each judge. The plan does not require any
sort of rotation system for attorney selection, and apparently allows case-by-case assignment
according to the discretion of individual judges. Attorneys must meet fairly rigorous
qualifications to be placed on the capital case appointment list. Qualifications for appointed
counsel include placement on the regional list, eight years of criminal law experience, and 15
jury trials tried to verdict. Lead attorneys must have completed two capital trials, one as defense
counsel, and must complete CLE tailored to capital cases. The second chair must have five years
of criminal law experience and 10 jury trials tried to verdict. Ector County’s objective
qualifications exceed the FDA’s minimum experience requirements and garner a “B,” but this
does not necessarily signify that all appointed attorneys actually are providing the necessary
quality legal representation in capital proceedings. Objective qualifications, such as those used in
Ector County, focus exclusively on an attorney’s past experience rather than his or her actual
performance. The plan includes a wide range of discretionary attorneys’ fees, and the low end of
the range is exceedingly low ($200/day). The plan does not contain any procedures for
reimbursement of expert and investigator expenses in capital cases.
El Paso County
Prompt appointment provisions apply to capital cases, but there is not a specific reference to the
required prompt appointment of second-chair counsel. The El Paso Council of Judges designates
one appointing judge or administrator to make all appointments from the capital felony list.
Appointment is made under a standard FDA rotation system, except that the El Paso Public
Defender’s Office appears as every other name on the list, thereby ensuring that it is responsible
for one-half of all appointments. Efforts are made to have each lawyer represent that lawyer’s
previous clients, which may result in attorney names being selected out of order from the list.
Names are placed on the list, alphabetically and in the order in which their applications are
approved. Attorneys must be included on the regional list and meet most of the requirements of
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article 26.052 in order to receive capital appointments. El Paso County does not enforce all of the
requirements of article 26.052, however, as it allows attorneys to substitute experience in two
capital trials in the last two years for the continuing legal education mandated by statute, thereby
de-emphasizing the need of all capital lawyers to receive ongoing training. The plan makes no
distinction between qualifications for first- and second-chair counsel. The plan includes straight
hourly fees for attorney compensation, with maximum fees set at $50/hour. The plan allows for
judicial discretion in setting a cap for attorney fee compensation, but includes two opportunities
for attorneys to appeal a judicial determination regarding compensation. The plan allows for the
interim payment of attorneys’ fees. The plan fails to include provisions for reimbursement of
reasonable and necessary investigator and expert expenses incurred without prior court approval,
and sets an unreasonably low cap on funds available for investigator compensation at $500.
Fort Bend County
The plan provides for prompt appointment of counsel in capital cases, but fails to reference the
required prompt appointment of second-chair counsel. This plan does not specify an attorney
selection method, providing only that preference will be given to attorneys familiar with local
rules. The only attorney qualification requirement for placement on the capital list is inclusion on
the regional list. Region 2 received a “B” for attorney qualifications, which means that its
objective qualifications meet or exceed FDA requirements, but which does not necessarily
signify that all appointed attorneys actually are providing the necessary quality legal
representation in capital proceedings. Objective qualifications, such as those used in Fort Bend
County under the Region 2 standards, focus exclusively on an attorney’s past experience rather
than his or her actual performance. The plan fails to include provisions for reimbursement of
reasonable and necessary investigator and expert expenses incurred without prior court approval.
The plan sets an unreasonably low cap on funds available for investigator compensation at $600
and for expert compensation at $750. The plan includes a straight hourly fee for attorney
compensation, with a wide range of discretionary fees for the daily trial rate. The low end of the
daily trial rate is exceedingly low ($200/day). The plan sets a cap on attorney compensation for
both first- and second-chair attorneys, and fails to provide a right to appeal a judicial
determination regarding compensation.
Galveston County
The plan provides for prompt appointment of counsel in capital cases, but fails to reference the
required prompt appointment of second-chair counsel. The plan adopts a basic rotation system
that does not specifically include or exclude capital cases. The plan requires only that lead
counsel be included on the regional list, and requires second-chair counsel to have tried eight
jury trials to verdict in first- and second-degree felony cases. Region 2 received a “B” for
attorney qualifications, which means that its objective qualifications meet or exceed FDA
requirements, but which does not necessarily signify that all appointed attorneys actually are
providing the necessary quality legal representation in capital proceedings. Objective
qualifications, such as those used in Galveston County under the Region 2 standards, focus
exclusively on an attorney’s past experience rather than his or her actual performance. The plan
fails to allow for reimbursement of reasonable and necessary investigator and expert expenses
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incurred without prior court approval. The plan includes a wide range of discretionary attorney
fee rates, and the low end of the range is exceedingly low ($300/day).
Harris County
The Harris County district courts established an alternative program consisting of a complex
patchwork of different plans, with each of the 22 criminal district judges choosing his or her own
method for appointing counsel. All of the courts have adopted standard rotation systems, which
they term the “individual cases assignment method,” in capital cases. A computer provides the
judge with five randomly selected attorney names from which he or she must select one name
prior to requesting an additional list of five names. The plan provides for prompt appointment of
counsel in capital cases, but fails to reference the required prompt appointment of second-chair
counsel. Attorneys are permitted to take a new capital case every 60 days. Harris County
maintains the highest “paper” criteria for capital attorney qualifications of any county reviewed.
Attorneys must meet fairly rigorous qualifications to be placed on the capital case appointment
list. Qualifications for appointed counsel include placement on the regional list, eight years of
criminal law experience, and 15 jury trials tried to verdict. Lead attorneys must have completed
two capital trials, one as defense counsel, and must complete CLE tailored to capital cases. The
second chair must have five years of criminal law experience with 10 jury trials tried to verdict
as lead counsel. The plan also provides for a five-member peer review advisory committee
chosen by the judges, and attorneys must be on the regional list and approved by a majority of
the judges by secret ballot before they receive capital appointments. The plan also requires all
lawyers to pass a Capital Certification Course before they are placed on the list. Harris County’s
objective qualifications meet or exceed FDA requirements and garner a “B," but this does not
necessarily signify that all appointed attorneys actually are providing the necessary quality legal
representation in capital proceedings. Objective qualifications, such as those used in Harris
County, focus exclusively on an attorney’s past experience rather than his or her actual
performance. However, it is important to note that if the Harris County peer review committee is
actually implementing performance standards internally, and if those performance standards are
comparable to the ABA Guidelines, Harris County could earn a higher score in this category in
the future if it reduces those standards to writing. The plan includes straight hourly fees for
attorney compensation, but sets an unreasonably low cap on hours expended at 120 hours of out-
of-court time for lead counsel. This cap impermissibly discourages competent pretrial practice
and investigation.
Hidalgo County
Prompt appointment provisions apply to capital cases, and there is a specific reference to prompt
appointment of second-chair counsel. The plan adopts a standard FDA rotation system.
Qualifications for appointed lead counsel include placement on the regional list, 15 felony jury
trials as lead counsel tried to verdict, two death penalty cases as first- or second-chair counsel
tried to verdict, and majority approval by the county’s felony judges. Second-chair counsel must
be on the regional list, be approved by a majority of the felony court judges, and have tried to
verdict at least 10 criminal jury trials as lead counsel, including at least eight felony trials, of
which at least six were trials in first- or second-degree felonies or capital felonies and at least
two of which were homicide cases. The plan allows compensation for investigators and experts
without caps or prior approval. The plan specifies two different hourly fees for attorneys, one of
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which is clearly unreasonable ($40/hour for all documented in-court and out-of-court time, but
$70/hour “for all documented time that is actually spent on the case that reasonable professionals
would agree was objectively necessary for a qualified criminal defense attorney in the
community to represent the client[.]”). It is unclear in what circumstances the unreasonable fee
will be paid.
Jefferson County
This plan does not comply with some basic FDA requirements, and does not substantially
address capital representation issues. The plan does not require the appointment of capital-
qualified counsel prior to indictment, allowing less experienced attorneys to be appointed prior to
indictment. The plan fails to reference the required prompt appointment of second-chair counsel.
The plan fails to specify an attorney selection system. However, the plan requires that appointed
counsel be included on the list for Region 2. Region 2 received a “B” for attorney qualifications,
which means that its objective qualifications meet or exceed FDA requirements, but which does
not necessarily signify that all appointed attorneys actually are the necessary quality legal
representation in capital proceedings. Objective qualifications, such as those used in Jefferson
County under the Region 2 standards, focus exclusively on an attorney’s past experience rather
than his or her actual performance. The plan fails to allow for reimbursement of reasonable and
necessary investigator and expert expenses incurred without prior court approval. The plan fails
to provide for reasonable attorney compensation, as it caps out-of-court, pretrial compensation at
$2,500.
Johnson County
The plan provides for prompt appointment of counsel in capital cases, but fails to reference the
required prompt appointment of second-chair counsel. A standard FDA rotation system is used to
appoint attorneys. The plan requires that appointed attorneys be included on the regional list,
meet article 26.052 requirements, and complete 15 hours of CLE per year. The plan contains less
stringent qualification requirements for second-chair counsel. The plan fails to include provisions
for reimbursement of reasonable and necessary investigator and expert expenses incurred
without prior court approval. The plan sets a cap on funds available for investigator
compensation at $1,000 and for expert compensation at $2,000. The plan includes a straight
hourly fee for attorney compensation, but sets a cap on attorney compensation for both first- and
second-chair attorneys and requires that invoices be submitted within 15 days of trial.
Liberty County
This plan does not specify an attorney selection method. Although each court has a Counsel
Coordinator who, among other things, maintains the lists of qualified attorneys and the rotation
schedule of appointed attorneys, the rotation system is not specifically set out as the selection
method adopted by the plan. Attorneys are limited to handling two capital cases per year. Prompt
appointment provisions apply to capital cases, and there is a specific reference to prompt
appointment of second-chair counsel. The plan requires only that lead counsel be included on the
regional list, and contains less stringent qualification requirements for second-chair counsel.
Liberty County’s failure to fully adopt the standards required by Region 2, specifically those
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standards applicable to second-chair counsel, while it does not cause a grade-reduction, causes
concern that there is not sufficiently consistent, quality representation. The plan fails to allow for
reimbursement of reasonable and necessary investigator and expert expenses incurred without
prior court approval. The plan sets a straight hourly rate for attorney compensation but
compensates lawyers only $50/hour. While this amount garners a “B” pursuant to our very
conservative evaluation method, Liberty County is urged to re-evaluate its compensation
schedule to pay attorneys at a rate more commensurate with the complicated and serious nature
of capital cases.
Lubbock County
Prompt appointment provisions apply to capital cases and there is a specific reference to prompt
appointment of second-chair counsel. The plan appoints counsel from a computer-generated list
using a standard rotation system. Attorneys must meet fairly rigorous qualifications to be placed
on the capital case appointment list. Qualifications for appointed counsel include placement on
the regional list and 15 jury trials tried to verdict, including two death penalty cases tried to
verdict as first- or second-chair counsel. Attorneys must complete an approved Capital Case
Seminar in order to be capital-qualified, and also must complete CLE tailored to capital cases
within two years of being placed on the list. The plan adopts less stringent qualifications for
second-chair attorneys, but still requires second-chair attorneys to be included on the regional
list. Lubbock County’s objective qualifications meet or exceed FDA requirements and garner a
“B,” but this does not necessarily signify that all appointed attorneys actually are providing the
necessary quality legal representation in capital proceedings. Objective qualifications, such as
those used in Lubbock County, focus exclusively on an attorney’s past experience rather than his
or her actual performance. The plan provides for reasonable attorney compensation, sets no caps
on attorney compensation, and provides a right to appeal a judicial denial of compensation.
Attorneys are compensated on the basis of a straight hourly fee for time reasonably expended, as
recommended by Texas State Bar and ABA standards. The plan allows for reimbursement of
reasonable and necessary investigator and expert expenses incurred without prior approval.
McLennan County
This is a modified system of rotation. Although appointments normally are made on a rotating
basis, each judge retains unrestrained discretion to depart from the rotation schedule based on the
facts of the case, the special needs of the defendant, or the special qualifications of the attorney.
The plan provides positive procedures to ensure the prompt appointment of counsel in capital
cases, but fails to ensure the prompt appointment of second-chair counsel, requiring only that the
second chair be appointed “as soon as practicable” after charges are filed. The plan requires that
lead counsel be included on the regional list, but adopts less stringent qualification requirements
for second-chair attorneys. Region 3 received a “D” score for merely parroting the statutory
language of article 26.052 without meaningful interpretation, and for failing to comply with the
FDA requirement that the local selection committee engage in ongoing annual reviews of
attorney training. The plan does not require approval of attorney qualifications by a majority vote
of criminal district court judges. The plan sets a straight hourly rate for attorney compensation,
but compensates lawyers at only $50/hour. The plan fails to provide a right to appeal a judicial
determination regarding compensation, and sets caps on expert and investigative resources.
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Montgomery County
The plan adopts a standard FDA rotation system under which attorneys are appointed from a list
of qualified counsel. Prompt appointment provisions apply to capital cases and there is a specific
reference to prompt appointment of second-chair counsel. The plan requires that lead counsel be
included on the regional list and meet article 26.052 requirements. The plan adopts less stringent
requirements for second-chair counsel. The attorney qualifications score was downgraded as a
result of Montgomery County’s failure to fully adopt the standards approved by Region 2,
specifically those standards applicable to second-chair counsel. The plan fails to allow for
reimbursement of reasonable and necessary investigator and expert expenses incurred without
prior court approval. The plan provides for reasonable attorney compensation, sets no caps on
attorney compensation, and provides a right to appeal a judicial denial of compensation.
Attorneys are compensated on the basis of a straight hourly fee for time reasonably expended, as
recommended by Texas State Bar and ABA standards.
Navarro County
The plan provides positive procedures to ensure the prompt appointment of counsel in capital
cases, but fails to reference the required prompt appointment of second-chair counsel. The plan
adopts a modified rotation system for appointment of counsel. The appointing judge can vary the
plan’s basic rotation system at his or her discretion to assure that all attorneys on each list have a
similar number of appointments and to account for workload, competency level, and other
factors the judge deems relevant. The plan requires that lead counsel be included on the regional
list and meet article 26.052 requirements. The plan adopts less stringent requirements for second-
chair counsel. Each judge maintains his or her own list of qualified counsel, so there is no
majority approval requirement and each judge has discretion to remove an attorney from the list.
The plan allows for reimbursement of reasonable and necessary investigator and expert expenses
incurred without prior approval. The plan sets a straight hourly rate for attorney compensation,
but compensates lawyers only $50/hour. The plan fails to include a right to appeal a judicial
determination regarding compensation.
Nueces County
This plan contains an opt-out clause, allowing any individual judge to opt out of any or all of its
provisions, making compliance with core FDA provisions completely voluntary. While timely
appointment of counsel is addressed, no specific reference is made to the required appointment
of second-chair counsel. This plan adopts a modified and poorly defined rotation system,
providing that each court may establish its own alternative appointment method. The plan fails to
detail how appointments are made and how fair selection of attorneys is ensured. The plan does
not include any of the actual procedures and methods for attorney selection that may have been
designed and adopted by each judge. The only attorney qualification requirements included in
the county plan are that lawyers must be in good standing with the state bar and maintain CLE
hours. These qualifications are applicable to all cases, with no variation based on the severity of
the offense. No reference is made to the regional list. The plan only vaguely references the
payment of expert and investigative fees, and fails to provide for their payment if incurred
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without prior approval. The fee schedule provides for a daily rate including a low out-of-court
rate, provides no mechanism by which a lawyer can appeal a judge’s denial of payment, and
allows judges to vary from the fee schedule.
Potter County
Prompt appointment provisions apply to capital cases and there is a specific reference to prompt
appointment of second-chair counsel. The plan adopts a standard FDA rotation system
administered at any given time by one rotating district judge appointing counsel in felony cases.
The plan fails to ensure quality representation by defining the article 26.052 requirement of
significant trial experience as demanding only that lead counsel have tried three cases to verdict,
only two of which must be felonies. The plan makes no distinction between first- and second-
chair qualification requirements. The plan allows compensation for investigators and experts
without caps or prior approval. The plan includes a wide range of discretionary hourly fees, and
the low end of the range is exceedingly low ($35/hour).
Randall County
Prompt appointment provisions apply to capital cases, and there is a specific reference to prompt
appointment of second-chair counsel. The plan adopts a poorly defined rotation system for
attorney selection, and allows judges to give preference to particular lawyers and appoint out of
order. Attorneys must meet fairly rigorous qualifications to be placed on the capital case
appointment list. Qualifications for both first- and second-chair appointed counsel include
placement on the regional list, six years of criminal law experience, and 10 jury trials, including
two homicides, tried to verdict. Randall County gives meaningful interpretation to article 26.052
despite the poor score awarded to Region 9, which merely parrots the statutory language and
omits the CLE requirement. Randall County’s objective qualifications meet or exceed FDA
requirements and garner a “B,” but this does not necessarily signify that all appointed attorneys
actually are providing the necessary quality legal representation in capital proceedings. Objective
qualifications, such as those used in Randall County, focus exclusively on an attorney’s past
experience rather than his or her actual performance. The plan includes a wide range of
discretionary hourly fees for attorneys, and the low end of the range is exceedingly low
($35/hour). The plan fails to include a right to appeal a judicial determination regarding attorney
compensation. The plan fails to include provisions for reimbursement of reasonable and
necessary investigator and expert expenses.
Smith County
This plan requires the prompt appointment of counsel in capital cases, but provides that a
second-chair attorney will be appointed only if the state files notice of its intent to seek the death
penalty, which is contrary to article 26.052. The plan does not require the appointment of capital-
qualified counsel prior to indictment, allowing less experienced attorneys to be appointed prior to
indictment. An alternative attorney selection program utilizes contract attorneys in each district
court to represent felony defendants. This procedure does not apply to capital cases, and no
alternative appointment method for capital cases is specified. The plan fails to ensure quality
representation by defining the article 26.052 requirement of significant trial experience as
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demanding only that lead counsel have tried five felony cases, including only two jury trials, to
verdict, or that lead counsel have participated in one death penalty trial as lead or co-counsel, not
necessarily to verdict. The plan adopts less stringent qualification requirements for second-chair
attorneys. The plan fails to include provisions for reimbursement of reasonable and necessary
investigator and expert expenses incurred without prior court approval, and sets a cap on funds
available for such expenses at $2,500. The plan sets a straight hourly rate for attorney
compensation, but includes a cap on both first- and second-chair attorneys’ fees and requires
invoice submission within 15 days of trial.
Tarrant County
The plan provides for prompt appointment of counsel in capital cases, but fails to reference the
required prompt appointment of second-chair counsel. The plan provides only that a second-
chair attorney will be appointed if the state files notice of its intent to seek the death penalty,
which is contrary to article 26.052. This plan adopts a standard FDA rotation system for the
appointment of counsel. Appointed attorneys must be included on the regional list, and have tried
at least one death penalty case. The plan makes no distinction between first- and second-chair
attorney qualification requirements. The plan fails to include provisions for reimbursement of
reasonable and necessary investigator and expert expenses. The plan provides reasonable straight
hourly fees for attorneys, with no caps on compensation. The plan fails to provide a right to
appeal a judicial determination regarding compensation.
Taylor County
The plan contains specific procedures for timely appointment of second-chair counsel. In other
respects, the plan does not comply with basic FDA requirements and does not substantially
address capital representation. The plan adopts a poorly defined rotation system for appointment
of counsel. Taylor County requires only that lawyers be included on the regional list in order to
qualify for appointment. Region 7 received a “B” for its attorney qualification standards. The
plan fails to allow for reimbursement of reasonable and necessary investigator and expert
expenses incurred without prior court approval. The plan allows for broad judicial discretion
regarding attorney compensation and requires invoice submission within 15 days of trial.
Tom Green County
The plan provides for prompt appointment of counsel in capital cases, but fails to reference the
required prompt appointment of second-chair counsel. The plan adopts a standard FDA rotation
system for the selection of attorneys. The plan merely requires that attorneys appointed to capital
cases be included on the regional list. Region 7 received a “B” for its attorney qualification
standards. The plan provides for reasonable attorney compensation, but fails to provide a right to
appeal a judicial denial of compensation. The plan allows compensation for investigators and
experts without caps or prior approval.
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Travis County
The plan provides positive procedures to ensure the prompt appointment of counsel in capital
cases, but fails to reference the required prompt appointment of second-chair counsel. The plan
uses a standard FDA rotation system administered by the Court Administration Office to appoint
counsel. The plan requires that each attorney be approved by a majority of judges, and provides
that names are selected alphabetically. Each lawyer is limited to one case per rotation. The plan
requires that appointed attorneys be included on the regional list and makes no distinction
between first- and second-chair qualification requirements. However, Region 3 received a “D”
score for merely parroting the statutory language of article 26.052 without meaningful
interpretation, and for failing to comply with the FDA requirement that the local selection
committee engage in ongoing annual reviews of attorney training. The plan fails to allow for
reimbursement of reasonable and necessary investigator and expert expenses incurred without
prior court approval. The plan sets a straight hourly rate for attorney compensation, with a wide
range of judicial discretion in setting the fee. The low end of the range is quite low ($50/hour).
The plan requires judicial approval of the hourly rate, fails to provide for a right to appeal a
judicial determination regarding compensation, and requires invoice submission within five days
of trial.
Walker County
Prompt appointment provisions apply to capital cases and there is a specific reference to prompt
appointment of second-chair counsel. This plan adopts a standard FDA rotation system, with a
maximum of two capital cases assigned to any lawyer in a single year. Walker County requires
that lead counsel meet the standards adopted by Region 2, which meaningfully implement article
26.052. However, less stringent requirements apply to second-chair counsel. The attorney
qualifications score was downgraded for Walker County’s failure to fully adopt the standards
approved by Region 2, specifically the standards applicable to second-chair counsel. The plan
fails to include provisions for reimbursement of reasonable and necessary investigator and expert
expenses incurred without prior court approval, and sets a cap on funds available for such
expenses at $2,500. The plan sets a straight hourly rate for attorney compensation, but sets a cap
on attorneys’ fees for both first- and second-chair counsel.
Wichita County
Prompt appointment provisions apply to capital cases, but the plan fails to reference the required
prompt appointment of second-chair counsel. A public defender system is used to appoint
counsel in all cases, except where a conflict exists. A standard FDA rotation system is used to
appoint private counsel where the public defender has a conflict. The plan omits key details
describing how the public defender is funded and selected, how attorneys employed by the
public defender are assigned to cases, and what measures are used to ensure that public defender
attorneys are qualified to provide the necessary representation. Attorneys appointed to capital
cases in the event of a public defender conflict must meet qualification requirements that merely
parrot the language of article 26.052. The plan makes no distinction between first- and second-
chair qualification requirements. The plan fails to allow for reimbursement of reasonable and
necessary investigator and expert expenses incurred without prior court approval. The plan sets a
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straight hourly rate for attorney compensation, but fails to provide a right to appeal a judicial
determination regarding compensation.
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X.
FINDINGS: TEXAS’S CAPITAL REPRESENTATION
REQUIREMENTS COMPARED TO THE ABA GUIDELINES FOR
APPOINTMENT OF COUNSEL IN DEATH PENALTY CASES
This report shows that most of the regional qualification standards and county plans fail to fully
comply with FDA provisions regarding representation of indigent capital defendants. This failure
is a serious dereliction of the regions’ and counties’ duties under state law, and calls into grave
question the quality of justice and reliability of verdicts produced in death penalty cases in Texas
courts. However, it must be remembered that the FDA is not the ultimate statement of what is
required to ensure high quality legal representation for death penalty defendants. In this section
of the report, we compare Texas’s statutory requirements for representation of indigent capital
defendants with the comparable guidelines promulgated by the American Bar Association
(ABA). Noncompliance with the FDA is even more alarming when viewed in light of the fact
that the FDA itself falls far short of reasonable national norms for capital trial representation, as
articulated by the ABA.
Recognizing that capital cases uniformly require oversight, attorney qualifications, and expertise
beyond what is ordinarily required in non-capital cases,
58
the ABA has issued detailed
Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases.
59
The ABA’s objective in issuing these recommendations was to “set forth a national standard of
practice for the defense of capital cases in order to ensure high-quality legal representation for all
persons facing the possible imposition or execution of a death sentence by any jurisdiction.”
60
The ABA uses the language “high-quality legal representation” to “emphasize that, because of
the extraordinary complexity and demands of capital cases, a significantly greater degree of skill
and experience on the part of defense counsel is required than in a non-capital case.”
61
The ABA Guidelines reflect a nationwide consensus on the minimum procedures necessary to
provide high-quality legal representation in all capital cases.
62
Thus, although the ABA
Guidelines often are phrased as procedures that jurisdictions “should” adopt, they are intended as
non-negotiable practices each jurisdiction must adopt in order to meet its duty to provide quality
legal representation.
63
The ABA Guidelines are not aspirational, but rather are necessary practice
norms.
The United States Supreme Court has recognized the significance of, and written favorably
about, the ABA Guidelines in several cases. Most recently, the Court reversed a death sentence
in Wiggins v. Smith, 539 U.S. ___, 123 S.Ct. 2527 (2003), in part because defense counsel failed
to comply with the ABA Guidelines governing the investigation and presentation of mitigation
evidence during the penalty phase of a capital trial. Specifically, the Court reiterated its previous
holdings that the ABA Guidelines are “standards to which we [the Court] long have referred as
‘guides to determining what is reasonable.’”
64
The ABA has enumerated 27 specific guidelines for appointment of counsel in capital cases,
many of which contain subparts. Guidelines 2.1 through 10.1 are non-performance-based
standards to which jurisdictions must adhere in order to ensure the provision of high-quality legal
representation in capital cases. These requirements place clear, specific duties upon the agency
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responsible for attorney selection and oversight, and discuss attorney compensation and access to
expert and investigative assistance. This report uses Guidelines 2.1 through 10.1 to evaluate the
extent to which Texas’s statutory requirements covering the same subjects comply with national
standards for death penalty representation.
Guidelines 10.3 through 10.15.2 relate to attorney duties and performance, and thus fall outside
the scope of this report. These Guidelines discuss specific attorney responsibilities essential to
providing quality capital representation, such as trial preparation, mitigation investigation, and
facilitating the work of successor counsel. These particular Guidelines require an evaluation of
an attorney’s performance in individual cases to determine whether attorneys are meeting their
obligations under the Guidelines. Neither the FDA, nor any individual jurisdiction in Texas, has
yet adopted performance standards like those called for under ABA Guidelines 10.3 through
10.15.2.
Even though this report does not delve into the subject of attorney performance standards in
detail, it is important to note that this is a challenge that Texas clearly needs to take up. To be
sure, Texas’s recent implementation of objective attorney qualifications (i.e., years of practice or
number of trials completed) constitutes forward progress toward ensuring that death penalty
defendants receive consistent, quality representation. However, as Texas continues moving
forward, we also need to ensure that attorneys actually perform in a competent manner, and to
utilize performance evaluations as a means for determining attorney eligibility for future
appointments. Only by adding performance standards can we achieve the high level of
representation needed to ensure reliability and integrity in the outcome of death penalty cases in
the state.
ABA Guidelines 2.1 through 10.1 are further described below. The description is accompanied
by an evaluation of whether the FDA itself is consistent with the relevant guideline. In addition,
a chart provides a brief overview of how indigent defense procedures in six selected county plans
compare with the ABA Guidelines. Bexar, Dallas, Harris, Jefferson, and Tarrant counties are
reviewed in this section because they are the most active death penalty counties in Texas.
65
Lubbock County is included because it is the county with the highest scores for compliance with
the FDA, and proves to be the county with the highest degree of compliance with the ABA
Guidelines as well.
A.
ABA Guideline 2.1: Implementation of a Plan
1.
What the Guideline Requires
Guideline 2.1 provides that each jurisdiction should formally adopt and implement a plan for
providing “high quality legal representation” in capital cases. The Guidelines require a selection
system free from local political influence, allowing capital defense attorneys to engage in high-
quality representation without fear of future sanctions. Plans allowing appointments,
compensation, or access to resources solely at the discretion of the judiciary violate the ABA’s
suggested apolitical appointment process. Plans allowing such discretion expose capital defense
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attorneys to the risk of “denial of future appointments, reductions in fee awards, or withholding
of promotions in institutional offices for engaging in effective representation.”
66
Plans must
maximize judicial neutrality by subjecting the appointing authority to judicial supervision “only
in the same manner and to the same extent as a lawyer in private practice—and not be subject to
institutional arrangements that might enable an attorney’s reappointment to be blocked by judges
irked at the zealous advocacy conducted . . .”
67
2.
Related FDA Provisions
The ABA Guidelines and the FDA both require a jurisdiction to adopt and implement a plan for
representation of indigent defendants. However, the FDA provisions specifying what such a plan
should include directly conflict with ABA mandates. The ABA Guidelines provide that decisions
regarding attorney compensation and access to investigative and expert services should be
independent of the judiciary. In contrast, the FDA authorizes payment of attorneys’ fees and
reimbursement of expenses for investigators and experts only upon approval of the judge
presiding over the case.
68
Moreover, the ABA Guidelines reject capital defense plans with
attorney selection methods that place appointment decisions solely in the hands of the judiciary.
In sharp variance, the FDA specifies that county defense plans may authorize only judges or
judges’ designees to appoint counsel for indigent defendants.
69
The FDA attempts to protect the
independence of counsel by requiring that appointment decisions be made in a fair, neutral, and
nondiscriminatory manner, but it falls considerably short of what the ABA Guidelines view as
being necessary to ensure such independence.
B.
ABA Guideline 3.1: Appointing Authority
1.
What the Guideline Requires
Guideline 3.1 calls for each jurisdiction to designate a jurisdiction-wide “defender organization”
or “Independent Authority,”
70
or both, to act as the “Responsible Agency” that appoints
attorneys in capital cases. To maintain neutrality in the appointment process, “the Responsible
Agency should be independent of the judiciary and it, not the judiciary or elected officials,
should select lawyers for specific cases.”
71
The appointing Agency should certify qualified
attorneys for appointment; draft and publish the agency’s certification standards; periodically
review the roster of attorneys eligible for appointment; administer specialized training programs;
and monitor the quality of performance of all appointed attorneys.
72
Lastly, in making such
appointments, the independent appointing agency must designate “at least two highly qualified
counsel [to] represent the defendant at every stage of the proceeding.”
73
2.
Related FDA Provisions
The FDA fails to comply with Guideline 3.1 because it does not adequately insulate the attorney
selection process from the judiciary. While the ABA Guidelines specify that appointments
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should be made by a defender organization or an “Independent Authority” consisting of defense
attorneys with demonstrated knowledge and expertise in capital representation, the FDA allows
appointments to be made only by the judiciary.
74
The FDA does not afford the defense bar any
independent voice in decisions that fundamentally affect the quality of defense representation.
Furthermore, it leaves appointment decisions vulnerable to the very political influence that the
ABA Guidelines seek to contain.
By requiring the appointment of two lawyers in every case in which the state may seek the death
penalty, the FDA comes much closer to complying with Guideline 3.1’s provisions regarding
who should be appointed in capital cases than it does to complying with the provisions regarding
who should make appointment decisions. However, the FDA requires that only one of the
lawyers appointed be capital-qualified, whereas the ABA Guidelines provide that both lawyers
should be highly qualified to represent defendants in capital proceedings.
C.
ABA Guideline 4.1: Assembly of the Defense Team
1.
What the Guideline Requires
Guideline 4.1 further details the necessary composition of the capital defense team, which should
include at least two qualified attorneys,
75
an investigator, and a mitigation specialist.
76
The
requirement of a mitigation specialist is consistent with the U.S. Supreme Court’s recent decision
in Wiggins, which emphasized the essential nature of the investigation and presentation of
mitigation evidence and its relationship to the sentencing phase of a capital trial.
77
The Guideline also requires that at least one member of the defense team be “qualified by
training and experience” in the detection of mental or psychological impairments.
78
Capital
murder cases often are rife with mental health issues. Neurological impairments, psychological
conditions, and complicated social histories frequently are seen in capital defendants.
Psychological and mental health information, which was the subject of the U.S. Supreme Court’s
decision in Wiggins, is important to juries’ sentencing decisions and relevant to identifying
persons with mental retardation, whose execution would constitute cruel and unusual
punishment.
79
For these reasons, a person qualified to screen for mental health issues should be
an integral part of the defense team.
Finally, recognizing that the prosecution commits vast resources to its efforts and that consulting
experts are essential to investigating homicide cases, Guideline 4.1 provides that defense counsel
should receive appropriate confidential assistance from experts, investigators, and other such
professionals at every stage of the proceeding
80
and that persons independent of the government
should provide such assistance. Such recommendations are well in line with the Supreme Court’s
holding in Ake v. Oklahoma, 470 U.S. 68, 77 (1985), that indigent capital defendants are
constitutionally entitled to the “basic tools of an adequate defense.”
81
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2.
Related FDA Provisions
The FDA is largely silent on the issues addressed by Guideline 4.1. Currently Texas courts have
discretion whether to allow capital defense counsel to employ a mitigation specialist and/or a
psychological expert,
82
because the FDA does not require, or even encourage, the use of such
professionals in death penalty cases. The FDA thus fails to adequately ensure that defense
counsel will access all services necessary to adequately defend against capital charges. However,
the FDA does take some steps to promote defense counsel’s access to confidential, independent
expert and investigative assistance in a manner consistent with the broader mandates of
Guideline 4.1. The FDA provisions allowing for ex parte requests for such assistance and for
reimbursement of expenses incurred without prior court approval are designed precisely to
further that goal. Unfortunately, many counties fail to incorporate even these minimal statutory
requirements into their local procedures.
83
D.
ABA Guideline 5.1: Attorney Qualifications
1.
What the Guideline Requires
Guideline 5.1 details the ABA’s attorney qualification standards, under which each capital
defense attorney should demonstrate his or her ability to effectively provide high-quality legal
representation to capital defendants before receiving appointments. In addition to the traditional
skills of lawyering, such as substantial knowledge of the relevant law, skill in research and
analysis, and skill in oral advocacy, the ABA Guidelines also require skill in the specialized
elements of capital litigation. For example, Guideline 5.1(B)(2)(e) requires skill in the utilization
of expert witnesses, which includes familiarity with forensic science such as DNA or forensic
pathology that is likely to be the subject of expert testimony. Guideline 5.1(B)(2)(g) demands
that defense attorneys be well versed in the investigation and presentation of mitigating evidence.
Guideline 5.1 recognizes that the number of years a lawyer has practiced, or the number of cases
he or she has tried to verdict, does not necessarily translate into an ability to competently
represent a capital defendant. A high number of trials does not mean a lawyer is sufficiently
skilled to appropriately handle the complexities and high stakes of a capital murder case. The
Guideline therefore does not emphasize objective measures of an attorney’s prior experience.
2.
Related FDA Provisions
The FDA does take some significant steps toward meeting this Guideline, mandating, for
example, the adoption of standards that require capital defense lawyers to “exhibit proficiency
and commitment” to capital representation, to have experience with mental health and forensic
experts, and to have experience presenting mitigating evidence in the penalty phase of a death
penalty trial. Still, neither the FDA nor any Texas county reviewed for this section requires the
full set of critical skills identified in Guideline 5.1 as essential for quality capital representation.
Further, neither the FDA nor any county reviewed gave any meaningful specificity to the
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requirement that attorneys “exhibit proficiency and commitment.” No county has provided any
indication of how that proficiency and commitment are measured and enforced. Instead, attorney
qualifications standards, at least as they have developed so far in Texas, appear mainly to consist
of easily quantifiable requirements based on years of practice and, in some counties, number of
felony trials. Thus, neither the FDA, nor any county, was deemed to fully meet the standard
called for in this ABA Guideline.
E.
ABA Guideline 6.1: Attorney Workload
1.
What the Guideline Requires
Guideline 6.1 states that the Responsible Agency should adopt formal procedures to monitor the
workload of attorneys who represent capital defendants. Such oversight is essential because
“studies have consistently found that defending capital cases requires vastly more time and effort
by counsel than non-capital matters.”
84
An attorney’s workload should not be left solely to the
discretion of the individual attorney; rather, the Responsible Agency should conduct oversight
and monitor attorney workload as part of its responsibility to ensure that capital defendants are
represented by counsel capable of providing high-quality representation.
2.
Related FDA Provisions
The FDA does not place any workload limits on capital trial attorneys, or require local judges
who make appointment decisions to monitor attorney workload. Only a few of the Texas
counties reviewed for this report place limits on the number of capital cases to which an attorney
can be appointed per year (e.g., Liberty County), while many active death penalty counties do
not. For example, Harris County permits a lawyer to be appointed to a new capital case as often
as every 60 days, which potentially could result in six capital appointments per year. The FDA’s
and the counties’ failure to adequately address the attorney workload issue is inconsistent with
the ABA Guidelines, and risks assigning overburdened attorneys to capital cases. County plans
that lack effective workload controls are shown in the comparison chart as not meeting this
Guideline.
F.
ABA Guideline 7.1: Monitoring and Removal of Counsel
1.
What the Guideline Requires
Guideline 7.1 provides that the Responsible Agency should establish and publicize a regular
procedure for investigating and resolving complaints alleging that an attorney failed to provide
high-quality representation in a capital case.
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This Guideline also provides that the Responsible Agency should monitor appointed attorneys,
and if necessary remove them from the list of capital-qualified counsel eligible to receive death
penalty appointments. The Guideline requires that the agency take both a preventative and
responsive approach toward eliminating attorney error. Thus, the agency is required to adopt and
publicize its procedures for investigating and resolving complaints against defense counsel, and
also must regularly review the qualifications of attorneys previously certified for appointment.
85
Once removed from the roster of qualified attorneys, the ABA Guidelines allow for that
attorney’s reappointment “only in exceptional circumstances.”
86
2.
Related FDA Provisions
The FDA does not require counties to develop procedures for investigating or otherwise
resolving complaints against appointed attorneys. While the FDA mandates that regions
periodically review the qualifications of counsel deemed eligible to receive capital appointments,
this requirement is frequently ignored.
87
Moreover, many counties simply adopt the regional list
of capital-qualified counsel wholesale, regardless of whether it is periodically reviewed in
compliance with the FDA. While some counties do provide a mechanism for removing specific
lawyers deemed unqualified for appointment, only Jefferson County requires the appointing
authority to exercise oversight and periodically review the list of qualified attorneys.
G.
ABA Guideline 8.1: Training
1.
What the Guideline Requires
Guideline 8.1 details several requirements necessary to ensure that all defense team members,
including non-attorneys, receive adequate training regarding capital litigation on a continuing
basis. Not just any criminal defense course suffices to meet this requirement under the
Guidelines. Rather, this ABA Guideline requires training that “focuses on the defense of death
penalty cases.”
88
Guideline 8.1(B) establishes a list of 11 areas in which attorneys who are
seeking appointment in death penalty cases should be trained by the Responsible Agency. Such
areas include: pretrial investigation and preparation for both the guilt and penalty phase; the use
of experts; preservation of the record; and post-conviction litigation. Guideline 8.1 recognizes
that continued training plays an essential role in effective representation and notes that many
training programs comply with the outlined criteria. The Guideline does not represent an
idealistic list of training topics, but rather emphasizes that this type of capital defense training is
readily available and should be required of attorneys in every jurisdiction before they receive
capital appointments. The Guideline also provides that once placed on the appointment roster,
each attorney should complete such a specialized training procedure at least once every two
years.
89
Guideline 8.1 also establishes continuous professional education requirements for non-attorney
defense team members within their respective areas of expertise.
90
Recognizing that all members
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of the defense team have unique roles and responsibilities, the ABA extends its training
mandates to all defense team members.
2.
Related FDA Provisions
The FDA requires attorneys seeking capital trial appointments to complete continuing legal
education courses in the area of death penalty defense before being added to the list of capital-
qualified counsel. The FDA also mandates that they complete additional training in death penalty
defense within two years of placement on the regional list, and once a year thereafter. Thus,
although the FDA’s continuing legal education requirements are not as focused as the ABA’s in
terms of content, they generally are consistent with ABA mandates. Despite this clear mandate,
some Texas administrative judicial regions and county plans do not incorporate the continued
capital defense training the FDA requires.
The FDA fails to comply with the ABA’s continuing professional education requirement for
non-attorney members of the defense team. Neither the FDA nor any county reviewed for this
section requires any non-attorney defense team member training.
H.
ABA Guideline 9.1: Compensation
1.
What the Guideline Requires
Guideline 9.1 details the ABA’s command that each jurisdiction “must ensure funding for the
full cost of high-quality legal representation … by the defense team and outside experts selected
by counsel.”
91
In particular, the Guideline emphasizes that attorneys should be compensated at a
rate reflective of the important and complex litigation they are undertaking. Rejecting the use of
flat fees or caps on compensation, this Guideline provides instead that capital defense counsel
should be paid at an hourly rate “commensurate with the prevailing rates for similar services
performed by retained counsel in the jurisdiction.”
92
Guideline 9.1 also calls for eliminating any
distinction between compensation for in-court and out-of-court attorney time, and recommends
that periodic billing and payment be available in capital cases.
93
This latter provision is necessary
as capital cases often are uniquely time consuming and burdensome. It is unrealistic and unfair to
expect an attorney to expend the time necessary for effective representation over many months or
years without the availability of periodic payments. Failure to provide for periodic payments can
result in a disincentive to quality representation and may cause unacceptable financial pressures
to adversely impact the quality representation provided to indigent capital defendants.
94
The ABA Guidelines adopt similar provisions for the compensation of non-attorney members of
the defense team, including payment based on a commensurate hourly rate, no distinction
between in-court and out-of-court time, and periodic billing and payment.
95
The Guideline
recognizes that, with respect to defense team compensation, “for better or worse, a system for the
provision of defense services in capital cases will get what it pays for.”
96
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2.
Related FDA Provisions
On the issue of attorney compensation, the FDA requires each county plan to state “reasonable
fixed rates or minimum and maximum hourly rates, taking into consideration reasonable and
necessary overhead costs and the availability of qualified attorneys willing to accept the stated
rates.”
97
To the extent it allows flat or fixed rates, the FDA directly conflicts with the ABA
Guidelines. Moreover, even though the FDA parameters for hourly rates theoretically could lead
to rates that meet ABA standards, these parameters are vague and unenforceable. In practice,
county compensation schemes adopted pursuant to the FDA frequently are well below national
norms. For example, many county plans state unreasonably low hourly rates and/or make a
distinction between in-court and out-of-court time.
98
Neither the FDA nor any county reviewed
for this section provides a mechanism for interim billing and payment. Finally, the FDA provides
no guidance on the issue of non-attorney compensation, other than to provide that courts should
pay “reasonable” expenses. The large amount of discretion this provision leaves in the hands of
individual judges is contrary to many of the FDA’s specific requirements for compensation of
non-attorney members of the defense team.
I.
ABA Guideline 10.1: Establishing Performance Standards
1.
What the Guideline Requires
Guideline 10.1 states that each jurisdiction should establish formal performance standards for all
capital counsel, and use these performance standards in qualifying and evaluating attorneys.
Guidelines 10.2 through 10.15.1 go on to detail a number of specific performance standards,
which are beyond the scope of this report. The adoption of performance-based standards is a
result of the ABA’s recognition that non-performance-based standards (i.e. standards based only
on years of practice or number of trials) are insufficient to ensure system reliability and integrity.
Not infrequently, stories of incompetent representation involve lawyers with long years of
practice and significant trial experience. Given the U.S. Supreme Court’s recognition in Wiggins
that what a lawyer does or does not do is critical in determining whether effective representation
has been provided, performance-based standards must become the benchmark of appointment
eligibility.
2.
Related FDA Provisions
With the exception of requiring that lawyers exhibit proficiency and commitment to capital
representation, the FDA is silent on the issue of actual performance standards, and therefore does
not comply with Guideline 10.1. Instead, the specific capital attorney qualification requirements
contained in article 26.052 focus almost exclusively on measures of an attorney’s prior
experience. The FDA does not specifically require regions or counties to accord any weight to an
attorney’s actual performance in capital proceedings when making decisions about the attorney’s
eligibility for future appointments, and it does not provide adequate guidance to counties in
implementing the “exhibit proficiency and commitment” statutory language. Although the
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majority vote requirement for placement on a county’s appointment list affords some opportunity
for judges to privilege past performance over prior experience, the FDA provides no guidance as
to how judges should evaluate an attorney’s past performance.
None of the administrative judicial regions or counties have adopted any meaningful scheme of
attorney performance standards. Doing so is critical to the goal of ensuring quality representation
in capital cases, but for now this is a challenge waiting to be tackled.
J.
Conclusion
There unquestionably has been substantial improvement in indigent capital defense procedures in
Texas since enactment and implementation of the FDA. However, this comparison of the FDA’s
provisions relating to capital defense with the ABA Guidelines shows that the FDA itself, as well
as many of the county procedures enacted pursuant to the FDA, still fall well short of the
national norms embodied in the ABA guidelines. This should be regarded as a challenge to
Texas officials at the county, regional, and state levels to continue the work of modernizing
indigent capital defense in the state. Full implementation of the FDA is a good first step, but it
should be followed up by incorporation of the mainstream practices set out in the ABA
Guidelines. The ABA Guidelines can serve as a good template for legislative actions to improve
capital defense. However, county officials, administrative regional officials, and the Task Force
on Indigent Defense need not wait for legislative action. They already have ample authority to
upgrade capital defense procedures, if they choose to do so. The ABA Guidelines can serve
equally well as a template for actions by the Task Force and local officials that can build on the
FDA and bring Texas capital defense procedures at long last into the national mainstream.
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To What Extent Do Texas’s Death Penalty Practices Comport With The ABA
Guidelines for Appointment of Counsel in Death Penalty Cases?
ABA Guideline
FDA
Bexar
Dallas
Harris Jefferson Lubbock Tarrant
2.1 Jurisdiction adopts
plan under which
appointment and
compensation
decisions are insulated
from political
influence and the
judiciary
No
No
No
No
No
No
No
3.1 Counsel are
recruited, assigned,
and monitored by a
Responsible Agency
that is run by
experienced capital
attorneys and is
independent of the
judiciary
No
No
No
No
No
No
No
4.1 Jurisdiction
provides for the
assembly of Defense
Team that consists of
no fewer than 2
attorneys qualified
pursuant to guideline
5.1, an investigator,
and a mitigation
specialist
No
No
No
No
No
No
No
4.1 Plan provides for
the assembly of a
Defense Team in
which one member is
qualified by training
and experience to
screen individuals for
the presence of mental
impairments
No
No
No
No
No
Yes
No
4.1 Counsel receives
the assistance of all
expert, investigative,
or other professional
services reasonably
necessary for
preparation of the
defense, from
professionals who are
independent of the
government
Yes
No
No
No
No
Yes
No
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ABA Guideline
FDA
Bexar
Dallas
Harris Jefferson Lubbock Tarrant
5.1 Qualifications of
Defense Counsel
include substantial
knowledge of
procedural and
substantive law, skill
in management of
complex negotiations
and litigation, skill in
oral advocacy and
legal research, skill in
investigation of mental
status, skill in the use
of experts and
familiarity with
common areas of
forensic investigation,
and skill in trial
advocacy and
mitigation presentation
No
No
No
No
No
No
No
6.1 Appointing agency
ensures that workload
is maintained at a level
that enables counsel to
provide each client
with high-quality
representation
No
No
No
No
No
Partial
No
7.1 Plan sets forth a
regular procedure for
investigating and
resolving any
complaints against
appointed attorneys
No
No
No
No
No
Partial
No
7.1 Appointing agency
periodically reviews
the roster of attorneys
to ensure that those
attorneys on the roster
remain qualified to
accept capital
appointments
Yes
Yes
No
No
No
No
No
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ABA Guideline
FDA
Bexar
Dallas
Harris Jefferson Lubbock Tarrant
8.1 Counsel is required
to satisfactorily
complete a
comprehensive
training program
including training in
pleadings and motion
practice, pretrial
investigation, jury
selection, ethical
considerations,
preservation of record
and post-conviction
review issues,
scientific evidence,
juvenile issues, and
client and family
relations before
receiving appointments
No
No
No
No
No
No
No
8.1 Attorneys should
be required to
complete specialized
training at least once
every 2 years after
placement on the roster
of capital-qualified
attorneys
Yes
Partial
No
Partial
Yes
No
Yes
8.1 Training also is
required for non-
attorney defense team
members
No
No
No
No
No
No
No
9.1 Attorneys are
compensated for actual
time and services
provided at a rate
commensurate with the
extraordinary
responsibilities of
capital cases; no flat
fees or caps on
compensation are
established
No
No
No
No
No
Yes
Yes
9.1 No distinction is
made between in-court
and out-of-court
compensation
No
No
No
No
No
Yes
No
9.1 Attorneys are
permitted to bill
periodically and
receive interim
payments
No
No
No
No
No
No
No
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ABA Guideline
FDA
Bexar
Dallas
Harris Jefferson Lubbock Tarrant
9.1 Non-attorney
defense team members
are compensated at an
hourly rate, with no
distinction between in-
court and out-of-court
compensation, and
periodic billing and
interim payments are
available
No
No
No
No
No
No
No
10.1 The agency
responsible for
appointing counsel and
ensuring high-quality
representation
establishes attorney
performance standards
No
No
No
No
No
No
No
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XI. SUMMARY DESCRIPTION OF THE FDA AND SELECT COUNTY
PLANS AS COMPARED TO THE ABA GUIDELINES
Fair Defense Act
While the FDA represents important progress toward improving the consistency and quality of
capital representation in Texas, with a few exceptions its provisions do not meet the standards
recommended by the ABA and referenced as reasonable by the U.S. Supreme Court. The FDA
meets the criteria set forth in only three of the 16 ABA Guidelines discussed in this report. In
contrast, one or more of the individual counties reviewed in Part VIII meets four specific
Guidelines not met by the FDA, evidencing that it is possible for state statutory law and other
counties in Texas to come into greater compliance with the ABA Guidelines. Significantly, the
FDA fails to establish attorney selection and monitoring procedures that are independent of the
judiciary and thus free from political influence. The FDA fails to require that a mitigation
specialist be available and used in every capital case, and fails to meet the ABA’s qualification
standards for capital attorneys. Most importantly, neither the FDA nor any county plan reviewed
for this report establishes sufficient performance standards for attorneys handling capital cases.
While objective qualification standards focusing on past experience play a role in devising
meaningful attorney qualifications, what a lawyer actually does or does not do during the course
of representing a defendant charged with capital murder should be the benchmark for an
attorney’s ability to effectively represent capital defendants. Until Texas adopts and enforces
meaningful performance standards, effective, quality representation cannot be consistently
assured.
Bexar County
Bexar County complies with only one ABA standard. It provides for a periodic review of the list
of qualified attorneys. Bexar County’s compensation plan is deficient. It limits compensable
attorney time to 100 hours of out-of-court time unless counsel secures prior court approval to
exceed this limit. It limits investigator fees to $1,500 and does not explicitly provide a mitigation
specialist. While Bexar County requires 12 hours of CLE in the 12 months preceding a capital
appointment, training is required only in “criminal law” generally. Instead, training should focus
on the defense of capital cases and should include training in the 11 areas recommended by
Guideline 8.1 of the ABA Guidelines.
Dallas County
The plan submitted by Dallas County specifically excludes capital cases. No provisions relating
to attorney appointment, selection, or qualifications in capital cases are included. The issues of
attorney, expert and investigator compensation are not addressed and therefore do not comply on
paper with the ABA Standards. Because of its absolute silence on fundamental matters related to
capital representation, the Dallas County plan does not comply with any of the ABA Guidelines.
Harris County
Harris County’s compensation plan does not meet ABA Standards. The plan includes straight
hourly fees for attorney compensation within national norms, but sets an unreasonably low cap
on hours expended at 120 hours of out-of-court time for the first-chair attorney. This cap
impermissibly discourages competent pretrial practice and investigation. In addition, Harris
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County fails to ensure competent representation by not adequately monitoring an attorney’s
workload. A capital-qualified attorney is permitted to take a new capital case every 60 days,
which could amount to six capital cases per year. This impermissible scenario might be a remote
possibility in some Texas counties, but is a real danger in Harris County.
Jefferson County
This plan meets only one ABA standard. The plan fails to allow compensation for reasonable and
necessary investigator and expert expenses without prior court approval. The plan fails to
provide for reasonable attorney compensation, as it caps out-of-court, pretrial compensation at
$2,500.
Lubbock County
Lubbock County received the highest grades with respect to compliance with the FDA, and also
meets more ABA standards than any other county. While the appointing agency in the Lubbock
County plan is not independent of the judiciary, Lubbock County meets most ABA standards
concerning attorney compensation and access to investigators and experts. Lubbock County
takes note of the unique responsibilities inherent in defense representation in cases involving
mental illness, and requires additional attorney qualifications in “special need” cases. While it is
unclear precisely what is required of lawyers in order to qualify for these appointments, Lubbock
County’s recognition of the special needs of defendants with mental health issues is
commendable. While Lubbock County’s attorney qualifications are rigorous when compared
with many other counties, they do not meet ABA standards. Some modifications, particularly the
incorporation of specific attorney performance standards, would be necessary to ensure
consistent, quality representation. Lubbock County received partial credit for urging attorneys
not to accept cases beyond their workload capacity; however, the appointing agency should be
monitoring workload, and should not rely solely on self-monitoring by attorneys. While Lubbock
County maintains a stringent procedure for addressing issues of attorney incompetence and
removal, it does not provide a standard process for the investigation of complaints about
attorneys or for periodic review of the list of capital-qualified lawyers.
Tarrant County
Tarrant County provides attorney compensation at a reasonable rate and pays for all actual time
and services provided with no caps or flat fees. It also requires defense CLE training every year.
However, Tarrant County fails to set forth any procedures for access to investigators and expert
witnesses and should do so in a way that complies both with the FDA and the ABA Guidelines.
While Tarrant County’s attorney qualification requirements are meaningful, they do not comport
with what the ABA Guidelines deem necessary to ensure consistent, quality representation,
primarily because they do not include any specific attorney performance standards.
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XII. RECOMMENDATIONS
While the FDA constituted forward progress toward improving the state of indigent defense in
capital cases in Texas, there is much work to be done. As this report shows, further action is
needed at the state and local level to fully implement the existing statutory requirements of the
FDA.
• Regions and counties that are not in compliance with the existing legislative mandate
should revise their procedures to come into compliance as soon as possible. This report
can help regions and counties identify which of their procedures still fall short of existing
state law requirements. The report also can be used to identify best practices adopted in
other regions and counties.
• The Task Force on Indigent Defense should work with the non-compliant regions and
counties to assist them in achieving prompt compliance with the FDA. The Task Force
already has undertaken the similar task of assisting counties across the state achieve
compliance with the broader, noncapital aspects of their indigent defense plans. The
experience and credibility developed so far by the Task Force would greatly contribute to
efforts to promptly bring capital procedures into full compliance with state law.
In addition to working to attain full implementation of current state statutory requirements, Texas
policymakers, judges, and state officials should continue to strive for further improvements that
increase system accuracy and reliability and heighten public confidence. In making those
improvements, an understanding of the inextricable link between quality of representation and
the risk of wrongful convictions has to be recognized. In light of recent Supreme Court
decisions, Texas’s active use of the death penalty, and the death penalty’s potentially irreversible
effects, Texas should consider adopting, as promptly as practicable, the reasonable procedures
enumerated in the American Bar Association’s Guidelines for Appointment of Counsel in Death
Penalty Cases. The following list includes some of the basic procedures needed to improve the
quality of capital defense representation in Texas.
• Establish attorney performance standards that serve as the benchmark for future
appointment eligibility. Counties, regions, and the Task Force should consider
meaningful, measurable attorney performance standards, which specify what duties an
attorney must perform in any particular death penalty case in order to maintain
appointment eligibility. While setting some objective appointment criteria that focus on
past experience (i.e., number of years of practice or number of trials) is important, these
criteria in and of themselves do not adequately measure an attorney’s ability to effectively
represent capital defendants. One Texas county reviewed in this report already has
recognized this and expanded beyond objective, experience-based criteria to include
skill-based considerations in its appointment decisions. While this county’s performance-
based procedures are not specifically enumerated, the development of performance-based
qualification criteria should be pursued by other counties.
71
Page 78
• Incorporate and support attorney appointment procedures that are independent of the
judiciary in order to ensure the independence of counsel, and to preclude opportunities
for judicial favoritism or for punishment for providing high-quality representation.
Encourage the development of public defender appointing authorities or other
independent agencies for appointing private counsel as a safeguard against the intrusion
of political considerations into capital appointment decisions and as a means to bolster
public confidence in the integrity of the system.
• Create peer review panels to help recruit and maintain the list of attorneys eligible for
capital appointments. Adopt secret balloting among the panel for voting on attorney
eligibility. Engage in systematic attorney oversight and periodic review of the list of
eligible lawyers in order to increase the quality of capital representation.
• Establish a state system of capital defender units to reduce the cost of death penalty cases
to the individual counties and to raise the consistency and quality of capital
representation. Many other active death penalty states have established such capital
defender units, often working in tandem with local private co-counsel. These states have
generally found such a system to be a cost-effective means of securing qualified
representation while reducing undue cost burdens on local jurisdictions.
• The Task Force on Indigent Defense should require compliance with the non-
discretionary mandates of the FDA. Counties intentionally failing to adopt required
procedures should be given an opportunity to come into compliance or risk becoming
ineligible for future grants awarded by the Task Force. While the Task Force has required
partial compliance with the FDA when awarding its grants through Fiscal Year 2004, the
Task Force has never required counties to comply with the FDA’s capital representation
requirements before they receive state grant money. It should do so. The Task Force
should not continue to ignore the problem of inadequate representation in death penalty
cases involving indigent defendants.
• The counties and regions must ensure that the terms of the FDA are adopted both on
paper and in practice. The Legislature charged counties and regions with implementing
the FDA’s basic mandates in a meaningful way in order to catalyze change to existing
procedures. The Legislature considered the FDA’s requirements to be the minimum
necessary to improve representation to acceptable levels. Two years later, the counties
and regions as a group are still far from reaching even these minimum objectives.
• For the system to “get what it pays for,” with the understanding that the public wants
integrity and confidence in the results, attorneys and other defense team members must
be compensated at a rate that reflects the enormity of the consequences and complexities
of capital representation. Counties with outrageously low caps on attorneys’ fees and/or
investigator and expert expenses should recognize that the money they might save at the
trial level will be transferred in some cases to the unnecessary and greater costs of
undoing wrongful convictions and sentences. System reliability requires access to a
quality defense team with adequate resources to investigate the case. Reasonable
72
Page 79
compensation will encourage more qualified attorneys to request court appointments,
reduce stories of poor representation, and promote a level playing field in capital cases.
• Attorneys should attend and be encouraged by policymakers and appointing authorities to
attend seminars recognized by the American Bar Association that include presentations
regarding the core issues related to criminal defense in capital cases. These issues
include the investigation and presentation of mitigation evidence, forensic and scientific
evidence, trial advocacy, and client relations. While there are training opportunities in
Texas for attorneys to receive legal education in these areas, attorneys should be
encouraged and permitted to attend death penalty trainings wherever they are available,
including out of state. Attending national death penalty training events would provide
Texas capital attorneys a valuable opportunity to access to information on national
practice norms. Finally, at a more basic level, counties should not deviate from the FDA
mandate that the training be in death penalty defense.
73
Page 80
74
Page 81
RESOURCES FOR IMPROVING CAPITAL REPRESENTATION PRACTICES
Counties/Regions Dedicated to Improving their Scores Should Look to the Following
Regions, Counties and ABA Guidelines for Better Practices
Category
Regions
Counties
ABA Guideline
Attorney Qualifications
2, 6, 7 Bexar, Cameron, Ector,
Fort Bend, Galveston,
Harris, Jefferson,
Lubbock, Montgomery,
Randall, Tarrant, Walker
4.1, 5.1, 6.1,
7,1,8.1,10.1
Attorney Compensation
N/A
Brazoria, Lubbock,
Montgomery, Taylor
9.1
Access to
Experts/Investigators
N/A
Bell, Brazoria, Hidalgo,
Lubbock, Navarro,
Potter, Tom Green
4.1
Attorney Selection Method
N/A
Anderson, Brazos, El
Paso, Travis
2.1, 3.1
Timely Access to Counsel
N/A
Bell, Brazoria, Hidalgo,
Liberty, Lubbock,
Montgomery, Potter,
Randall, Taylor, Walker
N/A
75
Page 82
76
Page 83
THIS REPORT COVERS PLANS IN THE COUNTIES LISTED BELOW
County
Population
Harris
3,400,578
Dallas
2,218,899
Tarrant
1,446,219
Bexar
1,392,931
Travis
812,280
El Paso
679,622
Hidalgo
569,463
Collin
491,675
Denton
432,976
Fort Bend
354,452
Cameron
335,227
Nueces
313,645
Montgomery
293,768
Jefferson
252,051
Galveston
250,158
Lubbock
242,628
Brazoria
241,767
Bell
237,974
McLennan
213,517
Smith
174,706
Brazos
152,415
Wichita
131,664
Johnson
126,811
Taylor
126,555
Ector
121,123
Potter
113,546
Randall
104,312
Tom Green
104,010
Bowie
89,306
Liberty
70,154
Walker
61,758
Anderson
55,109
Navarro
45,124
77
Page 84
78
Page 85
ABOUT THE EQUAL JUSTICE CENTER AND TEXAS DEFENDER SERVICE
The Equal Justice Center is a nonprofit, non-partisan public interest law center which uses
legal advocacy to build greater fairness into our legal, social, and economic systems. EJC works
with low-income groups and communities, public institutions, and the legal profession to achieve
fair and equal treatment under the law. The focus of EJC’s legal advocacy is on systemic reforms
that empower low-income clients and community-based groups to use the legal system as a
means to secure equality and fairness in both public policies and private practices. EJC executive
director, Bill Beardall, was one of the principal researchers and authors of The Fair Defense
Report: Analysis of Indigent Defense Practices in Texas (December 2000). In 2000-01 he led the
Fair Defense Project, which advocated for indigent defense reforms eventually incorporated into
the Texas Fair Defense Act. Since enactment of the Fair Defense Act, EJC has led statewide
efforts to encourage full implementation of the new law and to continue progress toward
improving indigent defense practices in Texas. EJC works closely with state and local officials,
the bar, and community-based organizations in pursuit of these vital objectives.
Texas Defender Service is a private, nonprofit organization established by experienced death
penalty attorneys. TDS was founded in 1995 and is dedicated to improving the quality of
representation provided to those facing the death penalty in Texas. There are three aspects to the
work performed by TDS, all of which reflect a commitment to ensuring the fairness and
reliability of the death penalty system. These aspects are: (a) direct representation of death-
sentenced inmates; (b) consulting, training, case tracking, and policy reform at the post-
conviction level; and (c) consulting, training, and policy reform focused at the trial level.
Additionally, TDS has produced research studies regarding the administration of the death
penalty in Texas in an effort to raise awareness and generate systemic reform aimed at improving
the quality of justice in Texas.
79
Page 86
80
Page 87
81
ENDNOTES
1
See, e.g., T
EXAS
D
EFENDER
S
ERVICE
, A S
TATE OF
D
ENIAL
: T
EXAS
J
USTICE AND THE
D
EATH
P
ENALTY
(2000); Paul
Duggan, In Texas, Defense Lapses Fail to Halt Executions, W
ASHINGTON
P
OST
, May 12, 2000; Henry Weinstein,
Condemned Man Awaits Fate in Dozing Lawyer Case, L
OS
A
NGELES
T
IMES
, June 6, 2000, at A1; Steve Mills, Ken
Armstrong, & Douglas Holt, Flawed Trials Lead to Death Chamber, C
HICAGO
T
RIBUNE
, June 11, 2000; Defense
Called Lacking for Death Row Indigents, But System Supporters Say Most Attorneys Effective, D
ALLAS
M
ORNING
N
EWS
, Sep. 10, 2000, at 1A; Judge Says Inmate Wrongly Convicted, D
ALLAS
M
ORNING
N
EWS
, Sep. 10, 2000; Linda
Kane, Death Row Inmate’s Lubbock Attorney Used Drugs, Alcohol, L
UBBOCK
A
VALANCHE
-J
OURNAL
, Sep. 10,
2000, at 12A.
2
The criminal judges in each county are required to “adopt and publish written countywide procedures for timely
and fairly appointing counsel for an indigent defendant in the county arrested for or charged with a misdemeanor
punishable by confinement or a felony.” T
EX
. C
ODE
. C
RIM
. P. art 26.04(a) (West 2002).
3
The United States Supreme Court recently affirmed that the national standard of practice in capital defense obliges
counsel to conduct a “thorough investigation of the defendant’s background.” Williams v. Taylor, 529 U.S. 362, 398
(2000) (citing 1 ABA S
TANDARDS FOR
C
RIMINAL
J
USTICE
4-4.1, commentary, p. 4-55 (2d ed. 1980)); see also
Wiggins v. Smith, 539 U.S. __, 123 S.Ct. 2527, 2536-37 (2003).
4
See generally T
EXAS
A
PPLESEED
F
AIR
D
EFENSE
P
ROJECT
, T
HE
F
AIR
D
EFENSE
R
EPORT
: A
NALYSIS OF
I
NDIGENT
D
EFENSE
P
RACTICES IN
T
EXAS
93-121 (2000) (hereinafter T
HE
F
AIR
D
EFENSE
R
EPORT
).
5
Id. at 93-96.
6
Id. at 84.
7
The FDA allows counties to have two distinct adult indigent defense plans, one applicable to misdemeanor
prosecutions in all county courts and another applicable to felony prosecutions in all district courts. T
EX
. C
ODE
C
RIM
. P. art. 26.04 (a) & (e). However, many counties have adopted a single county plan applicable to both felonies
and misdemeanors. See T
HE
E
QUAL
J
USTICE
C
ENTER AND
T
EXAS
A
PPLESEED
, T
EXAS
F
AIR
D
EFENSE
A
CT
I
MPLEMENTATION
, R
EPORT
N
O
. 1: Q
UALITY OF
I
NITIAL
C
OUNTY
P
LANS
G
OVERNING
I
NDIGENT
D
EFENSE IN
A
DULT
C
RIMINAL
C
ASES
2 n.4 (2002).
8
See generally T
EX
. G
OV
’
T
C
ODE
chap. 71.
9
Id. at § 71.060.
10
Id. at § 71.060(c).
11
An attorney first must present this proof no later than the second anniversary of the date on which he or she was
placed on the regional list of qualified attorneys. The attorney then must continue to present such proof each year
after the second anniversary. T
EX
. C
ODE
C
RIM
. P. art. 26.052(d)(4).
12
See O
FFICE OF
C
OURT
A
DMINISTRATION
, T
EXAS
F
AIR
D
EFENSE
A
CT
, I
NSTRUCTIONS AND
R
ESOURCES FOR
S
UBMITTING
I
NTERIM
P
LAN
1 (2001).
13
For example: a list of attorneys qualified to handle misdemeanors; another list of attorneys qualified to handle
state jail felonies and third degree felonies; a second degree felony list; a first degree felony list; and a capital list.
14
In counties with only one misdemeanor judge or one district judge, this majority approval requirement is
inevitably less effective at fully serving these purposes. Nevertheless, it does place even on the single judge a
mandate to seriously consider each attorney’s actual capabilities and to systematically assign the attorney to an
appropriate qualification list.
Page 88
82
15
T
EX
. C
ODE
C
RIM
. P. art. 26.04(b)(6).
16
Even an alternative program still must meet the FDA requirement that it appoint attorneys in a “fair, neutral and
non-discriminatory” manner, and must include procedures to ensure that “appointments are reasonably and
impartially allocated among qualified attorneys.” Id. at art. 26.04(a), (b)(6) & (g)(2)(D).
17
“In determining whether a defendant is indigent, the court or the courts’ designee may consider the defendant’s
income, source of income, assets, property owned, outstanding obligations, necessary expenses, the number and
ages of dependents, and spousal income that is available to the defendant. The court or the courts’ designee may not
consider whether the defendant has posted or is capable of posting bail, except to the extent that it reflects the
defendant’s financial circumstances as measured by the considerations listed in this subsection.” T
EX
. C
ODE
C
RIM
.
P. art. 26.04(m) (emphasis added).
18
Included are plans for each county in which five or more death sentences have been imposed since 1995.
19
See http://www.tdcj.state.tx.us/stat/countysentenced.htm.
20
See http://www.tdcj.state.tx.us/stat/countyexecuted.htm.
21
See http://www.tdcj.state.tx.us/stat/countyconviction.htm.
22
We also would like to acknowledge the valuable assistance of Daniela Dwyer and Equal Justice Center interns
Jason Schall and Mitul Shah.
23
This legislative intent is evident, if for no other reason, from the fact that the Legislature created the local
selection committees and charged them with developing qualification standards in the first place. If the minimum
qualification requirements set forth in article 26.052 had been deemed self-executing or otherwise sufficient on their
own, there is no reason why the Legislature would have considered it necessary for the local selection committees to
take further action with respect to adopting standards.
24
We did not specifically review counties’ indigence standards and procedures for this report, as those standards and
procedures operate no differently in death penalty cases than in adult noncapital prosecutions. Instead, we refer
readers interested in those procedures to the previous Equal Justice Center and Texas Appleseed publication T
EXAS
F
AIR
D
EFENSE
A
CT
I
MPLEMENTATION
, R
EPORT
N
O
. 1: Q
UALITY OF
I
NITIAL
I
NDIGENT
D
EFENSE
P
LANS
G
OVERNING
I
NDIGENT
D
EFENSE IN
C
APITAL
C
ASES
, available at www.equaljusticecenter.org.
25
T
EX
. C
ODE
C
RIM
. P. art. 26.05(c).
26
See T
HE
S
PANGENBERG
G
ROUP
, R
ATES OF
C
OMPENSATION FOR
C
OURT
-A
PPOINTED
C
OUNSEL IN
C
APITAL
C
ASES
AT
T
RIAL
, A S
TATE
-
BY
-S
TATE
O
VERVIEW
, 2003 (2003).
27
See id. As this Spangenberg Group study shows, the compensation paid to defense counsel in federal death
penalty prosecutions is $125.00 per hour. The rates paid in other populous states around the country include:
California ($50-150); Florida ($40-100); Illinois ($100-134.20); New York ($100-125 for lead counsel). The rates
paid in other Southern states include: Alabama ($70-90); Arkansas ($90-110); Louisiana ($57.65); South Carolina
($50-75 and above); Tennessee ($75-100 for lead counsel). Many counties in Texas, large and small, compensate
capital defense counsel at rates well above $50 per hour, e.g., Bowie County ($100-$120/hour out of court, $120-
$150/hour in court); Brazoria County ($90-$125/hour); Collin County ($75-$125/hour), Fort Bend County ($100-
$150/hour), Tarrant County ($100-$150/hour), and Walker County ($100-$150/hour out of court, $120-$180 in
court).
28
A
MERICAN
B
AR
A
SSOCIATION
, G
UIDELINES FOR THE
A
PPOINTMENT AND
P
ERFORMANCE OF
C
OUNSEL IN
D
EATH
P
ENALTY
C
ASES
Guideline 9.1(B)(1) (2003) (hereinafter ABA G
UIDELINES
).
29
The ABA Guidelines provide that periodic billing should be available in death penalty cases. Id. at Guideline
Page 89
83
9.1(B)(3).
30
Article 26.052 explicitly requires both a procedure for reimbursing expert and investigation expenses incurred
with prior court approval and a procedure for reimbursing such expenses without prior court approval if they were
reasonably necessary and reasonably incurred. This latter procedure is important to ensure that defense counsel’s
ability to make reasonable and appropriate use of experts and investigators is not delayed or restricted by
circumstances that make it impractical to obtain prior court approval.
31
The ABA Guidelines call for a mitigation specialist to be a member of the defense team in every death penalty
case. ABA G
UIDELINES
at Guideline 4.1(A)(1). The ABA G
UIDELINES
also provide that, in every case in which the
defendant is facing the death penalty, counsel has an obligation “to conduct a thorough investigation[] relating to the
issue[] of penalty.” Id. at Guideline 10.7(A). The United States Supreme Court recently cited an earlier version of
this specific guideline with approval as a benchmark for determining what constitutes reasonable performance of
counsel in a death penalty case. See Wiggins v. Smith, __ U.S. __, 123 S.Ct. 2527, 2536-37 (2003) (“investigations
into mitigating evidence ‘should comprise efforts to discover all reasonably available mitigating evidence and
evidence to rebut any aggravating evidence that may be introduced by the prosecutor.’”) (quoting earlier edition of
current guidelines, ABA G
UIDELINES FOR THE
A
PPOINTMENT AND
P
ERFORMANCE OF
C
OUNSEL IN
D
EATH
P
ENALTY
C
ASES
, Guideline 11.4.1(c) (1989)).
32
See supra note 7.
33
Although the FDA requires only that counties publish their written indigent defense procedures, see T
EX
. C
ODE
C
RIM
. P. art. 26.04(a), counties must submit their plans to the Task Force in order to receive state grant funds for
indigent defense. The Task Force then makes the county plans available on the Internet, thereby satisfying the
FDA’s publication requirement. The county plans are available on the Task Force website at
www.courts.state.tx.us/tfid.
34
T
EX
. C
ODE
C
RIM
P. art 26.052 (d)(3).
35
For example, an Equal Justice Center intern spent approximately 10 hours this summer calling the various
administrative judicial regions, sometimes placing numerous calls to each region, before obtaining copies of the
regional attorney qualification standards for the preparation of this report.
36
T
EX
. C
ODE
. C
RIM
. P. art 26.052(d)(2)(B).
37
The ABA Guidelines call for evaluation of capital attorneys based upon their compliance with performance
standards that focus on the specific conduct of counsel and on the quality of representation provided in specific
cases. ABA G
UIDELINES
at Guideline 10.1. An evaluation system that incorporates performance-based measures
provides greater assurance that defendants facing the death penalty receive high-quality representation than does a
system that focuses on attorneys’ past experience and other paper qualifications alone.
38
See infra notes 46-47 and accompanying text.
39
See supra notes 1 and 3 and accompanying text.
40
See United States v. Cronic, 466 U.S. 648, 655-57 (1984) (“’Truth . . . is best discovered by powerful statements
on both sides of the question.’ This dictum described the unique strength of our system of criminal justice. The very
premise of our adversary system of criminal justice is that partisan advocacy on both sides of a case will best
promote the ultimate objective that the guilty be convicted and the innocent go free.”) (internal quotations omitted).
41
“Unless the accused receives the effective assistance of counsel, a serious risk of injustice infects the trial itself. . .
. [T]he adversarial process requires that the accused have counsel acting in the role of an advocate.” Id. at 656
(internal quotations and citations omitted).
42
See ABA G
UIDELINES
at Guideline 5.1, cmt.; see also ABA G
UIDELINES
at Guidelines 10.1-10.15.2.
Page 90
84
43
“[T]he abilities that death penalty counsel must possess in order to provide high-quality legal representation differ
from those required in any other area of law. Accordingly, quantitative measures of experience are not a sufficient
basis to determine an attorney’s qualifications for the task. An attorney with substantial prior experience in the
representation of death penalty cases, but whose past performance does not represent the level of proficiency and
commitment necessary for the adequate representation of a client in a capital cases, should not be placed on the
appropriate roster.” Id. at Guideline 5.1. cmt.
44
T
HE
S
PANGENBERG
G
ROUP
, A S
TUDY OF
R
EPRESENTATION OF
C
APITAL
C
ASES IN
T
EXAS
152 (1993).
45
See S
TATE
B
AR OF
T
EXAS
, S
TANDARDS FOR THE
P
ROVISION OF
L
EGAL
S
ERVICES TO THE
P
OOR IN
C
RIMINAL
M
ATTERS
Standards 6.1, 6.2 (2001); ABA G
UIDELINES
at Guideline 9.1.
46
See T
HE
F
AIR
D
EFENSE
R
EPORT
at 16.
47
See T
HE
S
PANGENBERG
G
ROUP
, R
ATES OF
C
OMPENSATION FOR
C
OURT
-A
PPOINTED
C
OUNSEL IN
C
APITAL
C
ASES
AT
T
RIAL
, A S
TATE
-
BY
-S
TATE
O
VERVIEW
, 2003 (2003).
48
See ABA G
UIDELINES
Guideline 10.7, cmt.
49
See generally the county indigent defense plans available at http://www.courts.state.tx.us/tfid/County_Plans.htm.
50
Indeed, the Office of Court Administration’s I
NSTRUCTIONS AND
R
ESOURCES FOR
S
UBMITTING
I
NTERIM
P
LAN
begins by stating that “the primary matter to be addressed in crafting local indigent defense rules is the choice of one
or more attorney appointment methods.” Id. at 1-2.
51
T
EX
. C
ODE
C
RIM
P. art. 26.04(b)(6). For example, if the judges in a county are careful to ensure that the capital
list includes only attorneys actually qualified to handle such cases, then they can allow the rotation list to neutrally
assign attorneys to handle capital cases, confident that any attorney appointed from that list will provide competent
representation.
52
An example of a modified rotational appointment system that is consistent with FDA mandates can be found in
the El Paso County Indigent Defense Plan. Under that plan, appointments are made from a list of qualified attorneys,
but the name of the El Paso Public Defender’s Office appears as every other name on the list.
53
See ABA G
UIDELINES
at Guidelines 10.7-10.8, cmt.
54
The court is required to appoint two attorneys as soon as practicable after capital charges are filed, unless the state
gives notice in writing that it will not seek the death penalty. T
EX
. C
ODE
C
RIM
. P. art. 26.052(e).
55
Of course, a county plan that specifies that counsel shall be appointed “immediately” does not comply with the
FDA unless it also includes the FDA’s specific time limits as outer boundaries for the various stages of the
appointment process. Procedures that call for immediate appointment but do not include the FDA’s time limits are
vague and unenforceable.
56
See, e.g., T
EXAS
T
ASK
F
ORCE ON
I
NDIGENT
D
EFENSE
, I
NDIGENT
D
EFENSE
F
ORMULA
G
RANT
P
ROGRAM
, R
EQUEST
FOR
A
PPLICATIONS
(RFA) 2003, available at
http://www.courts.state.tx.us/tfid/FY%2002%20Formula%20Grant%20RFA.htm.
57
See supra Parts II and III.
58
See McFarland v. Scott, 512 U.S. 849, 855 (1994) (noting the distinctive difficulties of capital cases); see also
Andrea D. Lyon, The Trial for Life: Effective Assistance of Counsel in Death Penalty Cases, 58 N.Y.U. L. Rev. 299
(1983).
Page 91
85
59
Since the ABA Guidelines were first issued, they have been revised several times. The most current version of
the ABA Guidelines is the February 2003 Revised Edition. The full text of the February 2003 Revised Guidelines
may be found on the ABA’s website at http://www.abanet.org/deathpenalty/DPGuidelines42003.pdf.
60
See ABA G
UIDELINES
at Guideline 1.1 (a).
61
See id. at Guideline 1.1, history.
62
See id. at Guideline 1.1, cmt.
63
See id. at Guideline 1.1, definitional notes.
64
Wiggins, 123 S.Ct. at 2536-37 (citing Strickland v. Washington, 466 U.S. 668, 688 (1984) and Williams v. Taylor,
529 U.S. 362, 396 (2000)).
65
For a listing of the Texas counties with the most capital sentences in 2003, see
http://people.smu.edu/rhalperi/texascounty.html.
66
See ABA G
UIDELINES
at Guideline 2.1, cmt.
67
Id.
68
T
EX
. C
ODE
C
RIM
. P. art 26.05(c) (attorneys’ fees); id. at art. 26.052(f) & (h) (expert and investigator expenses).
69
Id. at art. 26.04(n).
70
ABA Guideline 3.1 emphasizes that the “Independent Authority” should be an organization run by defense
attorneys with significant expertise in the area of capital representation. Id.
71
See id. at Guideline 3.1, cmt.
72
See id. at Guideline 3.1(E).
73
See id. at Guideline 3.1, cmt.
74
See supra note 64 and accompanying text.
75
See ABA G
UIDELINES
at Guidelines 5.1 and 10.2-10.15.1 for the ABA’s more detailed description of their
recommended attorney qualifications.
76
See id. at Guideline 4.1(A)(1).
77
Wiggins, 123 S.Ct. at 2536-39.
78
See ABA G
UIDELINES
at Guideline 4.1(A)(2).
79
See Atkins v. Virginia, 536 U.S. 304 (2002).
80
See ABA G
UIDELINES
at Guideline 4.1(B)(1) and (2).
81
In Ake, the Supreme Court acknowledged that, “We recognized long ago that mere access to the courthouse doors
does not by itself assure a proper functioning of the adversary process, and that a criminal trial is fundamentally
unfair if the [prosecution] proceeds against an indigent defendant without making certain that he has access to the
raw materials integral to the building of an effective defense.” Ake v. Oklahoma, 470 U.S. 68, 70 (1985).
Page 92
86
82
See article 26.052’s general provisions regarding reimbursement of expert and investigator expenses. T
EX
. C
ODE
C
RIM
. P. art. 26.052(f) & (h).
83
See supra Part VI.5.
84
For example, a study of the California State Public Defender’s Office found that on average their attorneys spent
four times more hours on capital cases than on any other type of case. Similarly, in the federal system studies have
shown that attorneys handling federal capital cases that proceed to trial average over 1,800 hours per case. See ABA
G
UIDELINES
at Guideline 6.1, cmt.
85
See id. at Guideline 7.1(B) and (C).
86
See id. at Guideline 7.1(E).
87
See supra Part IV.
88
See ABA G
UIDELINES
at Guideline 8.1.
89
Id.
90
See id. at Guideline 8.1(D).
91
See id. at Guideline 9.1(A).
92
See id. at Guideline 9.1(B)(1)-(3).
93
See id. at Guideline 9.1(B)(3).
94
See id. at Guideline 9.1, cmt.; A
MERICAN
B
AR
A
SSOCIATION
, S
TANDARDS FOR
C
RIMINAL
J
USTICE
: P
ROVIDING
D
EFENSE
S
ERVICES
Standard 5-2.4, cmt. (1992).
95
See ABA G
UIDELINES
at Guideline 9.1(C)(1)-(3).
96
See id. at Guideline 9.1, cmt.
97
T
EX
. C
ODE
C
RIM
. P. art. 26.05(c).
98
See supra Part VI.4.
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