Of Life and Death

While Erica Sheppard sits on death row, penniless and convicted of a gruesome Houston murder, her cadre of elite Dallas lawyers is trying to prove that the justice system has gone fatally awry

Adams, the subject of the documentary The Thin Blue Line, had been sentenced to death for the murder of a Dallas police officer. The Court of Criminal Appeals finally reversed his conviction in 1989 during a state habeas process, but not before he had been on death row for 12 years. Back in Dallas in May, Adams spoke about how the system takes advantage of the poor. "The state of Texas has all the money it needs. They can hire anybody. They can fly anybody in to look at the evidence. You can't fight the state of Texas, and you will be indigent when it is over with." A speedier habeas process, says Adams, would have deprived him of the time he needed to prove his innocence, and quite possibly have cost him his life.

In 1990, the Texas Bar Association, concerned about the quality and availability of counsel representing impoverished capital defendants, commissioned a study conducted by The Spangenberg Group, a research organization based in Newton, Massachusetts. After three years, the group reported its findings: "The situation in Texas can only be described as desperate. The volume of cases is overwhelming. Presently no funds are allocated for payment of counsel or litigation expenses at the state habeas level."

But in a state where nearly 61 percent of the population is in favor of the death penalty, many had little patience for habeas filings and often viewed the process as a time-consuming obstruction of justice. The indigent defendant had already been tried and convicted at the county's expense and gone through a direct appeal, again at the county's expense. Drumming up even more money to pay for habeas cases would be no easy task. "There's a lot of issues out there that are going to get a lot more support than the number of people on death row," says state Representative Pete Gallego from Alpine, the eventual House sponsor of the habeas bill.

After the release of the Spangenberg study in 1993, a state bar committee began meeting with the objective of convincing the Legislature to create an attorney appointment system for indigent death row inmates during their state habeas appeals. The committee recommended and the Legislature later enacted a system that required the Texas Court of Criminal Appeals to appoint "competent counsel" in all state habeas cases. Although the committee would later suggest that these attorneys be compensated at a rate of $31,000 per case, it deferred to the appeals court to decide what was an appropriate fee.

When the Legislature convened in January 1995, it only considered the appointment issue as part of a broader package of habeas reform. Attorney General Dan Morales took up the mantle of victim's-rights groups that were fed up with delays in death sentences. Morales proposed and the Legislature later enacted changes to the code of criminal procedure that would require both direct appeals and state habeas appeals to be filed concurrently. Morales also convinced the Legislature to set stricter habeas deadlines and, except in special circumstances, to limit defendants to only one state habeas appeal.

"By allowing the Court of Criminal Appeals to review trial-record [direct appeal] and non-record [habeas appeal] issues at the same time," Morales told them, "we maintain the integrity of the system, yet cut up to two years off the legal process."

Those who created the new law envisioned that, for the system to work fairly and expeditiously, the Court of Criminal Appeals would appoint competent counsel -- lawyers who were adequately paid for their time. Although the Legislature had originally appropriated $4 million as compensation for these attorneys, it cut that amount to $2 million, which underfunded the program woefully and doomed it to chaos. At first, the Court of Criminal Appeals only paid lawyers $7,500 for handling habeas writs; last January, after lobbying the Legislature and the governor for more money, the judges were able to boost that cap to $15,000.

Not every judge agrees with setting limits on fees. "When the court imposed the $15,000 cap, I was against it, and I still am," says Court of Criminal Appeals Judge Charlie Baird. "I don't think it's adequate. I think it's very difficult to get competent counsel in cases like these for $15,000."

Originally, the court had counted on the altruism of the Texas criminal defense bar, hoping its lawyers would volunteer pro bono for what those in its rank and file had historically considered a noble cause. But when the appeals court issued a series of decisions strictly interpreting the new law, many criminal lawyers from across the state staged an unofficial boycott and refused to offer their services.

One case, in particular, aroused their ire: Death row inmate Ricky Kerr had been convicted in October 1995 of killing his San Antonio landlady and her son. After he lost his direct appeal, the court appointed Robert McGlohon Jr., an inexperienced San Antonio lawyer, to handle Kerr's state habeas appeal. However, McGlohon did not raise any issues regarding the guilt/innocence or sentencing phase of Kerr's trial. In response, the court not only rejected the appeal, but also counted it as Kerr's one and only petition. The trial court promptly set Kerr's execution date for February 25, 1998.

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