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

In his dissenting opinion, published only two days before Kerr was scheduled to be executed, Texas Court of Criminal Appeals Judge Morris Overstreet wrote: "For this court to approve of such and refuse to stay this scheduled execution is a farce and travesty.... If applicant is executed as scheduled, this court is going to have blood on its hands...."

Only a last-minute stay issued by a federal judge has prevented Ricky Kerr's execution.

On June 6, the Texas Criminal Defense Lawyers Association chose to formalize their boycott by passing a resolution encouraging its 1,860 members not to seek appointments to represent condemned inmates. "Serious questions have arisen concerning whether it is morally correct for our members to participate in such a meaningless farce, where their efforts simply result in the removal of a procedural hurdle to execution, without regard to the justness of the conviction or sentence."

The stand of the defense bar has only compounded a problem that began in 1995 after Congress cut all federal funds for 21 death-penalty support organizations, including the Texas Resource Center, with its two branches in Houston and Austin. When the center closed its doors, no organization was left to recruit and train attorneys who were willing to take on state habeas cases, but were unfamiliar with the nuances of the process.

That process, unlike a direct appeal, is not limited to the trial record. The entire case must be reconstructed to see if it meets constitutional standards. An attorney must look for things that didn't happen, but should have; witnesses who should have testified, but weren't called. "It wouldn't be enough to say, 'My lawyers never left their office and never investigated this case,' " says Houston defense attorney Jim Marcus. "You would have to say, 'My lawyers never investigated, and here's what they would have found had they gone out and investigated and brought in the new evidence.' "

Representing condemned prisoners has always been complex and exhausting work for attorneys, pressured by time and the highest stakes imaginable. But it became even more difficult after Congress responded with its own legislation in 1996, which again shortened deadlines and limited all federal habeas cases to one appeal. And that appeal could only address issues that had earlier been raised and lost in state habeas proceedings (unless new evidence is discovered). These changes put an added burden on the habeas lawyer to get things right the first time around and constituted an added disincentive for them to take the case in the first place.

Small wonder that when Alan Wright, a civil appellate lawyer and partner in the downtown Dallas law firm of Haynes and Boone, made it known that he was willing to handle a habeas appeal pro bono, death-penalty opponents were only too willing to oblige him.

In their normal course of practice, Haynes and Boone's 300 lawyers are more likely to be found litigating in civil court on behalf of a growing list of prominent commercial clients, rather than sullying their white-gloved hands with the likes of a grungy death-penalty case. The firm's posh offices take up five and a half of the 72 floors in downtown Dallas's NationsBank Plaza. Founded in Dallas 25 years ago, Haynes and Boone now has branches in seven cities in this country and abroad. Its client list includes Atlantic Richfield, Cellular World Corporation, Dell Computer, National Instruments Corporation, the Tandy Corporation and now Erica Sheppard -- thanks to Alan Wright.

At 42, Wright has an easygoing, jocular manner that belies a fierce work ethic -- one possible cause of his hair graying prematurely, he likes to think. Chairman of the firm's public service committee, Wright had been looking for a death row appeal to handle, but when David Marshall of Amnesty International phoned him last April to see if he was up to the challenge, it gave him pause. Texas had already executed Karla Faye Tucker in February. There was no reason to believe the state wouldn't do the same to another woman. Nonetheless, "we decided to take the case," says Wright. "If you are a millionaire, you get a lot of due process. But these defendants, they are on the bottom rung of the ladder, and they don't have anyone speaking up for them."

On May 1, Wright filed a motion for Sheppard requesting a new attorney, and asking the appeals court to appoint his firm without compensation. Attorney James Keegan, who had been appointed to handle the habeas appeal in October, had already been granted the case's only 90-day extension, making July 1 the deadline for filing the petition. A reappointment of new counsel, as Wright requested, would restart the filing time line, and give the firm another 180 days. While the court granted Sheppard's request to discharge Keegan, it did not "reappoint" Wright to the case, which effectively gave him only two months to fully prepare the habeas writ.

Wright committed himself and his firm's reputation to a task most solo practitioners would have found difficult to accomplish. Keegan had apparently read the trial record, says Wright, "but it appeared to me that very little, if any, factual investigation had been done, in terms of interviews with witnesses, interviews with jurors, or retaining experts." Immediately, he signed up the services of Tena Francis, a top-notch criminal defense investigator based in Wylie, Texas, and the firm assigned seven additional attorneys to the defense team.

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