On Death Row and “Represented” by a Disbarred Lawyer

July 25, 2017
Guest Post

by John H. Blume, Samuel F. Leibowitz Professor of Trial Techniques; Director of Clinical, Advocacy and Skills Programs; Director, Cornell Death Penalty Project, Cornell Law School

The Sixth Amendment provides that “in all criminal prosecutions, the accused shall … have the Assistance of Counsel for his defense.” The right to counsel encompasses the right to an attorney -- a qualified attorney. Not, for instance, one who has been disbarred and prohibited from practicing law. 

And yet, that’s exactly what happened to TaiChin Preyor, who is scheduled for execution in Texas on July 27. Mr. Preyor was convicted and sentenced to death in 2005 for a murder in San Antonio. Mr. Preyor’s trial counsel, however, did not properly investigate known red flags regarding his background, including the violence and sexual abuse Mr. Preyor experienced as a child. These formative experiences are not an excuse, but this mitigation evidence, and other critical details about Mr. Preyor’s childhood, could have persuaded at least one juror to vote for a life sentence, rather than death.

Mr. Preyor’s trial counsel’s ineffective assistance at trial should have been presented to the state and federal courts on appeal. But, I contend that the individuals providing Mr. Preyor’s “representation” at that time were more interested in defrauding the courts than pursuing Mr. Preyor’s legal claims. One of his post-conviction attorneys, Brandy Estelle, was a California lawyer who practiced probate, estate planning and real estate and had no experience in death penalty cases -- which explains why her case files for Mr. Preyor included a printed-out Wikipedia page on “Capital Punishment in Texas” with highlights.

But Ms. Estelle didn’t work alone. A recent investigation has revealed that she merely served as a front for the case, which actually was run by another individual, Philip Jefferson, who had long ago been disbarred in California for gross misconduct and chronic inattention to his clients’ interests.

Mr. Jefferson was introduced to Mr. Preyor’s mother, who was desperate to save her son, at the home of her niece over Thanksgiving dinner. Mr. Jefferson told Mr. Preyor’s mother that he had worked with Johnnie Cochran, the famous attorney who received a not guilty verdict for O. J. Simpson. He offered to represent Mr. Preyor, but claimed his status as a “retired” attorney prevented him from signing and filing court documents. Instead, Mr. Jefferson offered to bring in a younger attorney, Ms. Estelle, to appear in court and file documents drafted by Mr. Jefferson and Ms. Estelle.

Ms. Estelle never informed the courts that a disbarred lawyer had a role in the case and was receiving compensation from Mr. Preyor’s mother -- even as she sought payments from both Mr. Preyor’s mother and the Fifth Circuit Court of Appeals for the same work. In total, Ms. Estelle and Mr. Jefferson were able to get $45,000 from Mr. Preyor’s mother, wiping out her savings from years of work at the U.S. Postal Service, in addition to secretly seeking duplicative compensation from the courts for the same work.

That Mr. Jefferson and Ms. Estelle rendered “services” that were abysmal is not surprising. Among many examples of their shockingly deficient performance, the duo filed a federal habeas corpus petition that included no citations to record or extra-record evidence. A federal court later commented that the petition disregarded applicable federal law. Like his trial counsel, they also utterly overlooked compelling mitigation evidence in Mr. Preyor’s background and upbringing – including astonishing allegations that Mr. Preyor was sexually abused by a family member and removed from counseling as a young child out of concern that “personal matters” like this were being discussed.

Because of Ms. Estelle’s and Mr. Jefferson’s efforts to mislead the courts and Mr. Preyor’s family, TaiChin Preyor never received anything close to competent representation in his state and federal appeals. He should not be penalized for Mr. Jefferson and Ms. Estelle’s seemingly unethical and potentially fraudulent scheme. Mr. Preyor has been appointed new, legitimate and qualified attorneys. And in May – just two months before Mr. Preyor’s scheduled execution – a federal court authorized funding for these attorneys to conduct an investigation and prepare a case on his behalf.

The courts or the Governor should allow Mr. Preyor the opportunity to be represented by legitimate attorneys – with valid law licenses – before his execution proceeds. If our system is to have integrity, we cannot allow the State to take Mr. Preyor’s life without a fair hearing, with effective legal representation, for his claims.