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Jan. 3 TEXAS:
Prisoner loses attorney ruling -- Court
says 'competent counsel' right
does not apply in appeals
Death row inmates don't have a right
to capable counsel in their appeals,
the state Court of Criminal Appeals
ruled Wednesday.
A 6-3 majority said Anthony Graves should
not get another appeal despite
his lawyer's failure to present evidence
that an accomplice had recanted
his trial testimony. The accomplice,
Robert Earl Cater, said 2 weeks
before he was executed that Graves
had nothing to do with the 1992
murders of a Burleson County woman
and 5 children.
Writing for the majority, Judge Cathy
Cochran said a provision in the
1995 habeas corpus reform act requiring
the state to appoint "competent
counsel" concerns the initial appointment
rather than the lawyer's final
product.
"There must come a time when a criminal
conviction is final, when the
deterrent effects of certainty and
immediacy of punishment outweigh the
prisoner's right to endlessly litigate
new claims," Cochran wrote.
In a dissent, Judge Tom Price accused
the majority of valuing finality
over fundamental fairness.
"`Competent counsel' ought to require
more than a human being with a law
license and a pulse," wrote Price.
Price noted that the lawyer appointed
to represent Graves had been
licensed for only 3 years.
Judges Charles Holcomb and Cheryl Johnson also dissented.
The Graves decision could have an impact
on the stay of execution that
the Court of Criminal Appeals granted
last February to Napoleon Beazley,
who was 17 when he killed the father
of a federal appeals court judge.
Beazley's habeas lawyer admitted inadequately
investigating and briefing
the appeal.
In a separate ruling that appeared somewhat
contradictory, the court said
that another death row inmate was entitled
to a new appeal because his
habeas petition was so defective that
it cannot even be considered a true
writ application.
The court said the petition filed on
behalf of Ricky Kerr challenged the
constitutionality of the habeas reform
law but raised no claims
concerning the fairness of Kerr's trial
or the accuracy of the verdict.
Cochran, again writing for the majority,
said Kerr was deprived of his
"one full and fair opportunity" to
present constitutional claims.
Both cases stem from the 1995 habeas
reform act, which limited death row
inmates to 1 habeas appeal. A habeas
petition is a vehicle for an inmate
to challenge a conviction that has
been upheld on direct appeal. The law
initially required the Court of Criminal
Appeals to appoint the appellate
lawyers. But, angered over low fees
set by the court for the appellate
work, many experienced lawyers refused
to accept appointments.
The legislature subsequently gave the
authority to appoint habeas counsel
to the trial judge.
Kerr's case was one of the 1st handled
through the streamlined habeas
system. His lawyer had worked as a
briefing attorney at the Court of
Criminal Appeals but had been licensed
for less than 3 years when he was
appointed to represent Kerr, who was
given the death penalty for the 1994
slaying of his landlord and her son
in Bexar County.
In August 1997, Kerr wrote the clerk
of the Court of Criminal Appeals,
complaining that the lawyer had only
met with him once. The lawyer later
admitted that he misunderstood the
new habeas law and was suffering from
health problems at the time he was
preparing Kerr's appeal.
The Court of Criminal Appeals initially
denied Kerr's efforts to file a
new appeal. He was 2 days away from
being lethally injected in February
1998 when a federal judge stopped the
execution.
(source: Houston Chronicle)
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