Why judges should appoint more attorneys on writs

We hear a lot these days about wrongful convictions. There are Innocence Projects at all the law schools in Texas now. There are foundations and projects dedicated to the uncovering of the wrongfully convicted. There are groups dedicated to trying to improve our criminal justice system. Texas itself has established the first of its kind Forensic Science Commission, dedicated to uncovering the junk science that contributes to bad criminal convictions. Finally there are even units within the major prosecuting offices dedicated to verifying the integrity of the convictions in their counties, like Harris and Dallas. Yet in all this hubbub there is a single group of people who have been overlooked, and perhaps given a pass on some of these issues. That group, my friends, are the elected judges of our fair counties, both district and county criminal courts.

The Texas Constitution guarantees that the writ of habeas corpus shall never be suspended under Article I, Sec. 12.

It is a writ of right, available to all. Under the legislature’s guidelines, pursuant to Article 11 and Article 1.051(d)3 and 26 a court may appoint an attorney to a habeas application in the interests of justice. In a time when even our own elected District Attorneys acknowledge that we need conviction review in their own counties, it is well past time to ask for the bench to bear its fair share of helping review convictions. Since they are elected to serve the people, it seems fair that one way to serve those elected is to appoint more lawyers to help the indigent obtain a fair review of their convictions.

Yet all too infrequently do our judges ever appoint attorneys to represent the writ applicants. This may be out of habit. It may be out of some misguided belief that their courts have no issues with wrongful convictions, or that there are no bad lawyers who work in their courts. It could be because of the erroneous belief that no prosecutor would ever hide evidence in their court. or that even good lawyers do not make mistakes out of overwork or overzealousness. I cannot speak to why so few lawyers are appointed on writs out of our courts; I can only ask that judges change their ways.

Habeas law and procedural rules are different than what most dedicated trial attorneys are used to working under. It is the habeas attorney’s job to prove that the conviction was fundamentally flawed in some way, either by the defendant’s incompetence, the lawyer’s bumbling, the State’s misconduct, juror bad acts, or some other problem in due process. Proving facts is not usually possible for inmates or people without money or the ability to ask the court for resources. Thus, appointment of an attorney markedly changes the odds of an indigent man or woman in favor of obtaining a true review.

In an age where our many past injustices are finally coming to light under new science and objective investigation, isn’t it time for judges to pick up their fair share of responsibility for finding out the truth?

About P. F. McCann

McCann is a Houston attorney and a past president of the Harris County Criminal Lawyers Association and the Fort Bend Criminal Lawyers Association. His office can be found online at writlawyer.net.

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