Texas death row cases under scrutiny

Jim Vertuno and Jim Vertuno

AUSTIN, Texas — Innocent death row inmates are at risk of being executed in Texas because of shoddy representation on appeal by court-appointed lawyers, according to a report released Tuesday by a group that represents capital murder defendants.

The report from the Texas Defender Service examined hundreds of cases since the introduction of habeas petitions in 1995, when the state began allowing new claims of innocence, trial misconduct or ineffective counsel to be raised.

The report, called “Lethal Indifference,” says a “high number of death row inmates are being propelled through the state habeas corpus proceedings … with unqualified, irresponsible, or overburdened attorneys.”

In more than a third of the cases studied, the court-appointed lawyer presented no materials to support claims raised in their habeas petitions. And in another 28 percent of the cases, they raised only claims that cannot be addressed by the courts in habeas proceedings at all.

Either would be like filing “a blank piece of paper” on behalf of their defendant, said Jim Marcus, executive director of the Texas Defender Service.

“The state habeas process is where the innocent or those undeserving of the death penalty are discovered,” Marcus said.

But flimsy habeas appeals sometimes means there are no issues to raise, said Sharon Keller, the presiding judge for the Criminal Court of Appeals, the state’s highest criminal court. “What’s happening is everyone is getting a chance at post-conviction relief, but clearly not everyone is entitled to it,” she said. “The fact that not everyone is getting (relief) is not an indication that there is anything is wrong with the system.”

The study highlighted the case of Leonard Rojas, who has confessed several times to the shooting of his wife and brother in 1994. He was scheduled to be executed Wednesday.

Rojas’ habeas attorney had never before represented a death row inmate, three times had his license placed on probated suspension and was diagnosed with a mental disorder that affected his legal work.

The attorney never investigated Rojas’ case, raised only claims that the habeas court could not review and never started Rojas’ federal appeals before he ultimately abandoned the case, the report said.

Rojas is now represented by Greg Wiercioch of the Texas Defender Service, who said there’s no record that the previous attorney investigated whether Rojas would have a legitimate claim to mental incompetence or retardation.

The Texas Defender Service is calling for a moratorium on the death penalty until problems are addressed, giving inmates even greater access to DNA testing and a peer review panel to monitor attorneys on death penalty cases.

State Rep. Pete Gallego, who sponsored the legislation that created the state habeas process and supports the death penalty, said a vigorous appeals process makes the system work better. “Where the death penalty is involved, you need to leave no stone unturned,” he said.