for the defense for the defense - Voice For The Defense Online
for the defense for the defense - Voice For The Defense Online
for the defense for the defense - Voice For The Defense Online
Create successful ePaper yourself
Turn your PDF publications into a flip-book with our unique Google optimized e-Paper software.
William Harris<br />
We Ought to Be Ashamed<br />
President’s<br />
Message<br />
O<br />
n May 3, 2011, <strong>the</strong> State of Texas executed Cary Kerr from <strong>For</strong>t Worth. Brad Levenson<br />
and his staff at <strong>the</strong> newly created Office of Capital Writs (OCW) made a valiant attempt<br />
to get <strong>the</strong> Court of Criminal Appeals and <strong>the</strong> Supreme Court to halt <strong>the</strong> execution and<br />
consider fully mitigation evidence developed by OCW after Mr. Kerr’s state habeas counsel<br />
failed to do so in <strong>the</strong> original state proceeding. Brad and his staff per<strong>for</strong>med to <strong>the</strong> highest<br />
standards of our profession. We should all be proud of <strong>the</strong>ir work.<br />
What we should be ashamed of is <strong>the</strong> holding of <strong>the</strong> Supreme Court and <strong>the</strong> lower courts<br />
following its lead: that an indigent capital defendant has no constitutional right to <strong>the</strong> effective<br />
assistance of counsel on <strong>the</strong> post-conviction review of his case. Post-conviction review<br />
of trials in which a death penalty is imposed is required by <strong>the</strong> United States Constitution. It<br />
is beyond question that every defendant tried in our criminal courts <strong>for</strong> non-petty offenses<br />
is entitled to competent, effective assistance of counsel as a matter of constitutional right. In<br />
cases where <strong>the</strong> death penalty is imposed, we require that new counsel review <strong>the</strong> process<br />
<strong>for</strong> constitutional error, including <strong>the</strong> effectiveness of trial and direct appeal counsel. Yet<br />
<strong>the</strong> Court bli<strong>the</strong>ly says <strong>the</strong>re is no right to effective, competent per<strong>for</strong>mance by <strong>the</strong> lawyer<br />
per<strong>for</strong>ming that post-conviction review.<br />
I have read <strong>the</strong> legal reasoning behind this rule, and I think it faulty. If <strong>the</strong> constitutional<br />
adequacy of <strong>the</strong> process at <strong>the</strong> trial and on appeal is subject to review, <strong>the</strong> attorney assigned<br />
to per<strong>for</strong>m that review should also be required to do a competent job of it. If not, it allows <strong>for</strong><br />
<strong>the</strong> cynical appointment of attorneys who have demonstrated poor per<strong>for</strong>mance in <strong>the</strong> habeas<br />
review process by courts who wish to protect convictions and death sentences. It means that<br />
<strong>the</strong> taxpayer is paying substantial sums of money <strong>for</strong> work that is little more than a sham.<br />
It means we cannot be certain that our criminal justice system functions as it should when<br />
we call upon it to impose <strong>the</strong> most severe punishment possible. Most importantly, how do<br />
we look to <strong>the</strong> rest of <strong>the</strong> world when <strong>the</strong> criminal justice system—which we like to call <strong>the</strong><br />
best—says at <strong>the</strong> highest level that a condemned person is not entitled to competent counsel<br />
in every stage of <strong>the</strong> process<br />
I have devoted thirty-five years of my life to working in this system. I know its strengths<br />
and I know its weaknesses. I know it can always be improved. As long as we, as a society,<br />
say that we honor justice, that justice should be served, we cannot accept a rule that says<br />
that ineffectiveness of <strong>defense</strong> counsel at any stage of <strong>the</strong> proceeding, particularly when that<br />
counsel is assigned by <strong>the</strong> very government seeking to execute <strong>the</strong> condemned, is constitutional.<br />
We ought to be ashamed.