by Brandon L. Garrett, Justice Thurgood Marshall Distinguished Professor of Law, University of Virginia School of Law. His first book, Convicting the Innocent: Where Criminal Prosecutions Go Wrong, was published by Harvard University Press in 2009, and his most recent book, Too Big to Jail: How Prosecutors Compromise with Corporations, was published in 2014.
Can lawyers stop their own client from challenging his death sentence? Apparently, in Texas, they can. A lawyer’s most fundamental professional obligation is to “zealously” advocate for the client and uphold “justice.” Lawyers cannot give up working on a case, or put their own interests above their client’s. And yet that is what two Texas lawyers appear to have done to death row clients they were appointed to represent.
Raphael Holiday was just executed in Texas. His two court-appointed lawyers told him that they would no longer contest his execution. “This marks the end of work for your appeals,” they said. They then told Holiday they would not seek clemency from the governor, despite a federal law requiring them to honor the client’s desire to do just that. Facing imminent execution, Holiday told the court, “They have refused to help me and it is a disheartening conundrum I am not fit to comprehend.”
Holiday, who lacked money to hire his own lawyer, asked for the court to appoint a new one. The lawyers who said they were “not going to file further appeals” for him opposed his request, essentially telling the court that their client had nothing but frivolous claims left. The court-appointed lawyers simply gave up on Holiday’s case, even though half of 2015 Texas executions have been stayed or withdrawn, often because lawyers discovered compelling issues as the execution date approached. Based on the appointed lawyers’ representations, the court refused to assign a new lawyer to the case. Stephen Bright, president of the Southern Center for Human Rights, commented that it was “unconscionable” to prevent Holiday from getting new lawyers and that death penalty lawyers representing clients facing imminent executions “have a duty to make every legal argument they can.”
Things only got worse when a pro bono lawyer agreed to try to help Holiday at no charge. When the pro bono lawyer filed an appeal for Holiday, the court-appointed lawyers threatened to have her sanctioned if she did not withdraw it. Knowing that the pro bono lawyer was looking at the case, the court-appointed lawyers who had previously told the client that they had no intention of pursuing clemency filed a disjointed, last-minute petition. Then these two court-appointed lawyers did the unthinkable: They sided with the government and opposed their own client’s request to stay his execution.
The U.S. Supreme Court denied Holiday a stay on November 18, and he was executed. Justice Sonia Sotomayor made a statement underscoring that the court-appointed lawyers had abandoned their client. Justice Sotomayor emphasized that Congress “did not want condemned men and women to be abandoned by their counsel at the last moment” and that “more zealous advocates” should have been allowed to intervene.
Now it is happening again. The same duo of court-appointed lawyers jointly represent another Texas inmate, Robert Leslie Roberson III. Roberson’s trial may have violated the Sixth Amendment, but one of the court-appointed lawyers forfeited that claim by failing to argue it before the state courts. Excusing that forfeiture requires a showing that it was the fault of the lawyer, not the client. Because excusing the forfeiture requires an attack on the lawyer that forfeited it, there is a clear conflict of interest for Roberson’s court-appointed lawyer: He would be required to attack his own performance. Such a situation is not unusual, and the conflicted lawyer usually steps aside and allows an unbiased attorney to do the work. Instead, Roberson’s two court-appointed lawyers resorted to a familiar tactic. They opposed relief for their client and simply misrepresented to the court that the claim had never been forfeited at all. They called the claims against them “helicoptered in” by outside lawyers who were “dreamy-eyed” and attempting to “force a delay in the execution.” Roberson’s pro bono attorney seeking the change of attorney responded, “This is about the inmate having a chance to litigate a claim that might save his life."
“Kafkaesque” is the word to describe the execution of Holiday. Next week, the Supreme Court should choose to intervene in the Roberson case to prevent a similar injustice. In Kafka’s The Trial, a businessman told the protagonist that nobody could ever expect to hire “the great lawyers” and that “there’s probably no way of contacting them.” In America, the wealthy can hire a Dream Team with “great lawyers,” while indigent defendants have lawyers thrust on them by the court. At the very least, when those court-appointed lawyers do not do their jobs, inmates facing execution should be able to get new ones that do not subordinate the client’s interests to their professional reputations.
Texas has accounted for half of executions in the U.S. this year. If Texas can only keep its execution machine going by forcing on clients lawyers who attack and abandon them, then Kafkaesque is the only word to describe the entire Texas death penalty regime.