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Sunday, April 08, 2007

Office of Capital Writs Bill Should be Amended to Do More

The Austin American Statesman today endorsed SB 1655 by Sens. Rodney Ellis, D-Houston, and Robert Duncan, R-Lubbock, which would "create a committee to set standards for attorneys filing writs for condemned inmates and establish the Office of Capital Writs to represent indigent defendants applying for writs of habeas corpus." The office would cost an estimated $643,864 in 2008, up 29 percent from current costs.

As usual, Texas is playing catch-up to what is already being done in other states. For instance, consider California's Office of the State Public Defender

The Office of the State Public Defender was created by the California Legislature in 1976 to represent indigent criminal defendants on appeal. The office was formed in response to the need of the state appellate courts, for consistent, high-quality representation for defendants. For the first 13 years of its existence OSPD's workload was predominantly complex non-capital felonies on appeal to the Courts of Appeal, with a handful of capital murder cases in the mix.

Throughout this decade the number of condemned inmates sitting on Death Row awaiting appointment of counsel, often for years, has steadily increased. Due to this fact, since 1990, OSPD's mandate from all three branches of government has been redirected toward an exclusive focus upon death penalty cases. We litigate these cases both on appeal and habeas corpus in the California Supreme Court, and in the United States Supreme Court on certiorari petitions.


You have to wonder why all the criminal defense attorneys who spend time lobbying at the capital through various associations and organizations have not sat down and drafted a bill that would create what Texas really needs, which is a statewide Office of Public Defenders that would handle all capital cases from trial to last minute appeals before executions. In fact, that is what the Austin American Statesman recommended last fall in an editorial:
The investment by the state, while substantial, is too little for capital murder appeals. The solution doesn't necessarily mean that the Legislature must appropriate a lot more money, but it should find a better way of using the money it already is spending, such as establishing a statewide defender's office that is responsible for capital cases from start to finish.

That office could be financed by a combination of state money now going to court-appointed lawyers handling death row habeas appeals and county dollars that fund lawyers for indigent capital murder defendants for their initial trials. Such an agency could hire lawyers who are experienced and competent in handling death row cases. It isn't a perfect solution, but far better than what is in place now.

The public and state leaders should be concerned about whether convicted capital murderers are being executed for the right reason — because they are guilty — and not because their lawyers bungled the job.


An Office of Capital Writs is a good first step, but a better first step would be one office to handle all capital cases from start to finish. Then, the public might have some confidence that innocent people are not wrongfully convicted, sent to death row and executed, such as Ruben Cantu, Carlos De Luna, and Cameron Willingham.

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