Since the Supreme Court reinstated capital punishment in the landmark 1976 case of Gregg v Georgia, 1,195 people have been executed in the United States. Texas is often considered the epicenter of the death penalty, accounting for 449 executions. But executions are not evenly distributed across Texas. Harris County - home to Houston - is the true capital of capital punishment. With 112 executions, Harris County has executed about the same number of offenders as all of the other major urban counties in Texas, combined. In fact, if Harris County were a state it would rank second in executions after Texas.

Perhaps not coincidentally, Harris County is also the largest jurisdiction in the nation to use the appointment method of indigent defense - meaning the judge assigns a private defense attorney to the case. Critics have argued that the appointment method is plagued by five problems: (1) flat fee compensation (defense counsel receives a standard fee regardless of the number of hours worked, so each hour of work reduces the rate of compensation and detracts from private clients); (2) the potential for insufficient support services (defense counsel must receive approval from the judge to hire support services such as investigators and experts); (3) a potential conflict of interest for the defense attorney (defense counsel's personal income depends on remaining in the good graces of the judge to secure future appointments); (4) a potential conflict of interest for the judge (the judge must balance the defense counsel's requests for support services with the county commissioner's requests to control the costs of indigent defense; the judge must also consider the possibility that generous spending on indigent defense could hurt his/her chances of re-election); and (5) questionable appointment practices (some evidence suggests that judges occasionally make appointments for inappropriate reasons, such as whether the potential appointee is a friend or campaign contributor).

Despite such serious criticisms, researchers have not answered the most basic questions: Do procedural problems produce differences in case outcomes? Is the district attorney (DA) more likely to seek death against defendants who have appointed counsel? Is the jury more likely to impose death against defendants who have appointed counsel? Put differently, is the appointment method merely procedurally flawed or truly a matter of life and death?

The majority of Texas counties continue to rely on procedurally flawed method that is failing poor defendants facing the death penalty, according to research published in a new ACS Issue Brief.

University of Denver Sociology and Criminology Professor Scott Phillips studied more than 500 death penalty cases in Harris County, home of Houston, which the author dubs the "capital of capital punishment," and found that a method of employing court-appointed lawyers is riddled with procedural problems.

Phillips writes:

Defendants who hired counsel for the entire case were never sentenced to death. Even defendants who hired counsel for a portion of the case were substantially less likely to be sentenced to death than defendants with appointed counsel.

The findings are not an indictment of appointed attorneys, but rather an indictment of the structural deficiencies in the appointment method of indigent defense. The system is flawed, not the individuals who work within the system.

Beyond being procedurally flawed, Phillips maintains the method, which is used in 252 of the state's 254 counties, has life and death consequences. He notes that "38 of the 41 defendants executed to date had appointed counsel."

Does a Texas prosecutor's affair with the trial judge in a capital case violate the defendant's right to a fair trial? That question could face the U.S. Supreme Court if it grants certiorari in the case of Charles Dean Hood, who was sentenced to death in 1990. He only obtained depositions of Judge Verla Sue Holland, who presided over Hood's case and the prosecutor, Thomas S. O'Connell Jr., in 2008. The Texas Court of Criminal Appeals considered Hood's case, but still ruled 6-3 to uphold his execution. 

Hood's appeal to the Supreme Court immediately drew the support of 21 prosecutors and 30 legal ethics experts.

"A judge who has engaged in an intimate, extramarital, sexual relationship with the prosecutor trying a capital murder case before her has a conflict of interest and must recuse herself," the ethics experts wrote to the high court in their amicus brief. "Of all the courts to have considered the issue, only the Texas Court of Criminal Appeals in this case failed to recognize this imperative."

Attorney and ACSblog contributor Scott Horton agreed, writing this morning that "Texas is in the process of declaring itself a judicial ethics-free zone."

Writing in The New York Times, Adam Liptak notes that the Supreme Court has demonstrated a willingness to dabble in judicial ethics:

Last year, [the Court] ruled that millions of dollars in campaign spending on behalf of a West Virginia judge was reason enough to require his disqualification from a case involving his supporter.

"The probability of actual bias on the part of the judge," Justice Anthony M. Kennedy wrote for the majority, was "too high to be constitutionally tolerable."

And last month, the Supreme Court ordered the federal appeals court in Atlanta to have another look at a case in which jurors in a capital trial gave a trial judge an odd gift - a penis made of chocolate.

Concerns for judicial integrity have haunted Texas of late, as suggested by Horton. Just released today is "Hire a Lawyer, Escape the Death Penalty?," an ACS Issue Brief by Professor Scott Phillips. Phillips researched the death penalty's application in Houston and surrounding Harris County, which is the county with the largest number of executions in the United States and the largest jurisdiction that uses court-appointed lawyers instead of a public defender to represent defendants who cannot afford an attorney. Phillips study reveals that "[h]iring counsel for the entire case not only eliminates the chance of death, but also dramatically increases the chance of an acquittal."

In Harris County, Texas, the death penalty is more likely to be imposed against black defendants
than white defendants, and death is more likely to be imposed on behalf
of white victims than black victims. These are the findings of Professor Scott Phillips, University of Denver. Phillips's examination of these findings was distributed in his ACS Issue Brief "Racial Disparities in Capital Punishment: Blind Justice Requires a Blindfold," just re-released in the latest edition of Advance: The Journal of the ACS Issue Groups. 

Professor Phillips explains that his research indicates that the racial disparities arise in the District Attorney's decision to seek the death penalty, rather than with the jury. He suggests that because the Supreme Court is unlikely to overrule McCleskey v. Kemp in the near future and find that capital punishment is unconstitutional based on statistical evidence of racial disparities, other means for reducing racial disparities in the death penalty should be implemented.

Phillips proposes that prosecutors' offices that want to institute genuine race-blind processes for deciding whether to seek the death penalty should consider "desocializing" the decision to seek the death penalty. Concrete steps that District Attorney's offices can take to reduce the social information available to judicial actors in the capital litigation process, he suggests, include eliminating information that might insinuate the race of the victim or defendant - "racial markers" - from all documents considered in the District Attorney's decision whether to seek the death penalty.