February 11, 2003
Stupid budget tricks

Just when you thought Texas couldn't possibly get any less accomodating to indigent defendants, along comes a proposal to return some money earmarked for post-conviction appeals to the state.

Court of Criminal Appeals Presiding Judge Sharon Keller last week suggested the money could be used to help with a $1.8 billion revenue shortfall this fiscal year.

The money was appropriated by the Legislature to pay for lawyers representing death row inmates in their final appeals. Keller said Monday she doesn't think the money will be needed before Aug. 31, when the current fiscal year ends.

The money in question is less than $1 million, which is to say less than 0.06% of the $1.8 billion shortfall that must be made up by August 31. If we all rooted through our couches and cars for spare change and mailed what we found to Rick Perry, it'd have a much bigger impact.

Even though this fund has a little extra cash at this time, it's not like it's a pro-defense bonanza:

Keith Hampton, a lobbyist for the Texas Criminal Defense Lawyers Association, said the reason there is unused money is because the Court of Criminal Appeals "drove off virtually all of the good lawyers."

The state pays $25,000 for all fees and expenses connected with an appeal. Defense lawyers contend that is not enough to do a thorough job.

A study released last December by the Texas Defender Service concluded that more than a third of the state habeas appeals filed since 1995 have been token efforts, containing none of the investigative work that is customarily expected in such an appeal.

Andrea Keilen, a lawyer who helped write the study, said she's disappointed that the court wants to cut the budget for legal representation.

"What the court should be doing is encouraging the Legislature to increase the fee cap and draw a more qualified class of lawyers to take these cases so Texas is not at risk for executing an innocent person," said Keilen.

If the name Sharon Keller rings a bell, by the way, it should. She has a history of being hostile to defendants, even ones like Roy Criner. See here, here, here, and here for the full story of Criner, who was wrongfully convicted of raping and killing a girl named Kimberly Ogg in 1990. DNA evidence, including semen found in the victim, was not a match for Criner, but he was convicted anyway. When proper DNA testing was finally done and demonstrated the lack of a link to Criner, Judge Keller wrote an opinion for the Texas Court of Criminal Appeals which essentially said that this meant nothing:

Even before the DNA test proved conclusively that the semen wasn't Criner's -- and without knowledge of the screwdriver test or other exculpatory evidence -- the state court of appeals based in Beaumont overturned the conviction and freed Criner in 1991. But the Texas Court of Criminal Appeals overturned that ruling a year later, and Criner was jailed again.

In 1997 conservative Montgomery County Judge Michael Mayes reviewed the DNA evidence and recommended a new trial. But the Court of Criminal Appeals rejected the judge's findings. "There is overwhelming, direct evidence that establishes that [Criner] sexually assaulted the victim in this case," Judge Keller wrote in her opinion. As for the DNA evidence, Keller told Frontline, "If [the test] had come back positive, it would have been important." But since it was negative, she said, it didn't mean anything: "You're not taking into account the fact that [Ogg] was a promiscuous girl."

Regardless, she told Frontline, the DNA information wouldn't have made any difference to the jury. The documentary then cut to Joel Albrecht, the foreman of that jury. "I don't understand how the court could say what we would do," he said. "I personally think if the DNA came forth stating that it was negative, the verdict would not have been 'guilty.' "

I didn't think Sharon Keller could top that particular disgrace, but give her credit for trying. Hopefully, saner heads will again prevail.

Posted by Charles Kuffner on February 11, 2003 to Budget ballyhoo | TrackBack