INDEPENDENCE OF COUNSEL: AN ESSENTIAL REQUIREMENT FOR COMPETENT COUNSEL AND A WORKING ADVERSARY SYSTEM.

Abstract

Representation of poor people accused of crimes must be independent of the judiciary if criminal proceedings are to be fair and reliable. Independence is the first of the American Bar Association's Ten Principles of a Public Defense Delivery System (2002). Independence allows judges and defense counsel to perform their very different roles within the adversary system. Inadequate representation of the accused by court-appointed lawyers has contributed to 127 executions of people sentenced to death in Harris County--more executions in the last 40 years than any state except Texas itself. Some lawyers have lacked the qualifications to handle capital cases. The Texas Court of Criminal Appeals rejected a challenge on behalf of Anthony Graves to the inadequate pleadings filed by the inexperienced lawyer it provided him for state habeas corpus proceedings. Different counsel established a constitutional violation in federal habeas corpus review and Graves was later exonerated. He is one of 12 men sentenced to death in Texas who were later exonerated. But others sentenced to death have had no review of their cases by the federal courts because the lawyers appointed to represent them missed the statute of limitations for filing a petition for federal habeas corpus. There have been other egregious instances of malpractice such as lawyers sleeping during death penalty trials, filing briefs that were incomprehensible or did not apply to the case in which they were submitted, and abandoning clients and turning against them. Neither judges nor the Texas Bar have taken action to prevent such malpractice from occurring again. Judges have continued to appoint those lawyers to represent defendants and the Bar has taken no disciplinary action. The Texas Court of Criminal Appeals has sanctioned lawyers for failing to file pleadings a full seven days before an execution but has not punished those who slept during trials or those who submitted incomprehensible or irrelevant briefs--the convictions and death sentences were upheld in those cases. The defense of capital and other criminal cases requires training, experience, expertise in a number of subjects, and the support of investigators, social workers and experts. Public defender offices and capital habeas units all over the country provide representation by lawyers who specialize and are trained and supervised. Two capital habeas units opened at federal public defender offices in Texas in 2017, over 20 years after such offices were established in other federal districts in other parts of the country. The units and other offices, such as the Office of Capital and Forensic Writs and the Regional Public Defender for Capital Cases are positive developments that will significantly improve representation. Members of the Bar have a responsibility to provide access to justice that includes providing competent counsel in criminal cases.