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William Harris We Ought to Be Ashamed President’s Message O n 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.
Joseph A. Martinez Special thanks to our course directors, John Donahue, David Moore, and Stanley Schwieger, who had 148 attendees in Waco on April 8, and course directors David Moore and Kelly Pace, who had 52 attendees in Tyler on April 15 for our CDLP seminar “Trial Tactics: The Art of War.” Special thanks also to George Bianchi, President of the National College of DUI Defense (NCDD), and the NCDD Board of Regents for allowing TCDLA to co-sponsor the Mastering Scientific Evidence seminar held in New Orleans April 14–16. Thanks to Troy McKinney, J. Gary Trichter, and Mimi Coffey, our course directors, we had 289 attendees. Thanks go out as well to course directors Lynn Richardson and Jeanette Kinard, who had 92 attendees in Dallas on May 2 for our CDLP Indigent Defense seminar. Special thanks to course directors Lawrence Boyd and David Burrows, who presided over our DWI Defense Project seminar on May 6, attracting some 230 attendees to Arlington. Special thanks to senior lobbyist Allen Place, who conducted a Legislative Update conference call on April 20. We plan on having another conference call in mid-summer to update criminal defense lawyers on changes to Texas laws. We invite all of our TCDLA members to attend the 40th annual membership meeting on Saturday, June 11, at approximately 11:00 am—immediately following the 24th Annual Rusty Duncan Advanced Criminal Law Course. President-elect Gary Trichter invites all of our members to join him for the TCDLA Members Retreat, July 27–30, 2011, at the unique T-Cross Ranch in Shoshone National Forrest outside of Dubois, Wyoming. The ranch lies at an elevation of 7,800 feet in an untouched country of pine forrest and open meadows, trout-rich streams, and small lakes, with endless vistas rising well over 11,000 feet—scenically magnificent. Space is limited. Please go to our website for more information. Please make plans for the summer to join us for fun and CLE. The following CLE will be held in cities across Texas: Executive Director’s Perspective July 14–15 August 3–4 August 10 August 11–12 August 19 August 25 South Padre Island, “Trial Tactics: The Art of War” Austin, “Innocence Work in the Real World for Real Lawyers: A Practical Seminar on Representing the Innocent After Conviction” Houston, NHTSA SFST Update Houston, 9th Annual Top Gun, co-sponsored with Harris County Criminal Law Association Richmond, “Trial Tactics: The Art of War” Austin, “Innocence Lost: How & Why Investigations Go Wrong” Good verdicts to all.
Page 1 and 2: VOICE FOR THE DEFENSE Volume 40 No.
Page 3 and 4: g Features g Columns g Departments
Page 5 and 6: Benefits . . . “Something that pr
Page 7: CLE & Events . . . Providing legal
Page 11 and 12: Regular Members Joseph Aragon, Aust
Page 13 and 14: During Florence’s sixth day at BC
Page 15 and 16: searches unconstitutional where not
Page 17 and 18: Steve Green from Athens earned an a
Page 19 and 20: Proposed Changes to the TCDLA Bylaw
Page 21 and 22: When should you ask for a competenc
Page 23 and 24: anywhere from 30 days to 120 days o
Page 25 and 26: 32. Id. at (1) & (2). 33. Id. at (b
Page 27 and 28: to Stephenville. There, Jim studied
Page 29 and 30: Jim Jarrott was killed near a South
Page 31 and 32: Lynching of Jim Miller, left, alleg
Page 33 and 34: Miller’s Convenient Witnesses In
Page 35 and 36: Significant Decisions Report Please
Page 37 and 38: viction counsel performs deficientl
Page 39 and 40: HELD: The first step of the Hall le
Page 41 and 42: ever in the United States’ histor
Page 43 and 44: Name ______________________________
Page 45 and 46: Although relevant, evidence may be
Page 47 and 48: Texas Criminal Defense Lawyers Asso

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