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