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Appeals Courts

Tom DeLay to dance with the stars

I’m speechless.

The news this morning that former House Majority Leader Tom DeLay will be a contestant on the upcoming season of “Dancing With the Stars” triggered a mixture of chortling and bemusement as it whipped through cyberspace.

“Also: Denny Hastert to be on American Idol. Right, @ryanseacrest?” ABC chief White House correspondent Jake Tapper joked on Twitter.

Even Tom Bergeron, host of “Dancing With the Stars,” admitted he was flummoxed when he heard that the one-time Republican king maker nicknamed “The Hammer” would be participating in the dance spectacle. “This is the one when the producers last week were telling me who the lineup was … I went, ‘You’re kidding!’” Bergeron said on ABC’s “Good Morning America” as he announced the cast of the new season.

DeLay, known for his hardball tactics on the Hill, stepped down from his House seat in 2006 after being indicted in Texas for violating campaign finance laws. The case is pending.

Conrad Green, the show’s executive producer, said he considered the fact that DeLay is under indictment before offering him the role but decided it was not enough to keep him off the show. “Frankly, this case seems to have stalled completely,” he said in an interview. “I believe in innocent before proven guilty.”

Actually, it’s just been going through the appeals process, some initiated by DeLay’s legal team. If you want to blame anyone for the length of time it’s taken, blame the in-no-rush Texas appeals courts. Be that as it may, I don’t even know what to say about this. I guess it’s a good thing Richard Nixon had David Frost around to do his image rehabbing.

I suppose this shouldn’t come as too much of a surprise. After all, DeLay has apparently been a fan of the show for some time now.

Another appeals court case to be proud of

By “proud”, I mean “deeply embarrassed”. Here’s Rick Casey discussing a decision by the 1st Court of Appeals in which the infamous case of death row inmate Calvin Burdine and his sleeping lawyer, Joe Cannon is referenced, and not in a good way.

“Like the ‘sleeping lawyer’ case, this case will stand as a significant embarrassment in the history of Texas jurisprudence,” wrote Justice Terry Jennings in a stinging dissent.

This isn’t a death penalty case, but a lawsuit in which child protection authorities sought to terminate a father’s parental rights. We Texans consider families so important that we give indigent parents a tax-paid attorney to represent them if the state tries to take away their children.

In this case, John Spjut (pronounced “Spyoot”) was appointed to represent Frederick DeWaynne Walker.

Spjut didn’t sleep through the trial. He simply didn’t attend it. Nor did he do much preparation. Walker testified he called Spjut’s office at least five times but never reached him.

Spjut’s bills to the county do not indicate any contact with his client. He did bill the county for filing an answer to the state’s termination lawsuit, writing two letters to Walker, and spending one hour preparing for trial. Total fee: $750.

But on the actual day of the trial, Spjut didn’t show. Instead, he sent his brother Dan to try the case.

It must have been a challenge. Without a lawyer guiding him, Walker had a hard time finding the right courtroom and didn’t show up until after lawyers for the state had put on their case against him.


By Jennings’ estimate, based on the trial transcript, Dan Spjut’s direct examination of Walker lasted less than four minutes.

The entire trial, Jennings estimated, took less than 45 minutes.

Yet the two other justices on the panel that heard Walker’s appeal ruled that his right to have a lawyer had not been violated. Justice George C. Hanks Jr., joined by Justice Jane Bland, wrote that Walker had to prove that he would likely have won if his attorney had done a better job.

Hanks wrote that Walker didn’t prove that the way Spjut conducted his defense wasn’t “the exercise of reasonable professional judgment.”

Jennings argues in dissent that Walker received “assistance” of counsel “far below that afforded to the criminal defendant in the infamous ‘sleeping lawyer case.’ ”

“Walker’s appointed trial counsel never discussed the case with Walker and then abandoned Walker on the trial date,” he wrote.

I guess if there’s somebody who can be called a “lawyer” that’s with you in the courtroom, that’s good enough. I wonder if any of the justices who render opinions like this have the same expectation of what a basic level of assistance would be from, say, a doctor or a broker.

Sadly, neither of the justices who thought this kind of lawyering was A-OK are up for re-election next year – we’ll have to wait till 2012 to render our own opinions. On a side note, in searching around for info about Calvin Burdine and his snoozing attorney, I came across this old blog post that detailed some fun and games then-District Court Judge, now State Sen. Joan Huffman played in Burdine’s retrial. I wish I’d have remembered it before her election last year, but oh well.

Missing deadlines in capital cases

Reading about death row inmates who lost federal appeals because their attorneys missed a filing deadline makes me angry.

The Houston Chronicle reviewed records in nine appeals that were filed too late. In some cases, lawyers or judges appear to have miscalculated or misunderstood the dates of the deadlines, which generally fall one year after state appeals are concluded. In others, computer failures or human foibles are blamed, records show.

“Any decent judges would be deeply ashamed of the quality of legal representation in most capital cases in Texas,” said Stephen Bright, a leading specialist in capital case law and who directs the Southern Center for Human Rights in Atlanta. “The very least they could do about it would be to prohibit lawyers who miss the statute of limitations from taking another case and referring them to the Bar for disciplinary proceedings.”


James Marcus, an expert in capital case law who teaches in the Capital Punishment Clinic at the University of Texas School of Law, said missing the deadline for a federal writ of habeas corpus — thereby waiving all federal review — is the equivalent of “sleeping through the trial.”

Federal courts, he noted, have overturned several recent Texas death cases for errors overlooked by state judges, including one involving allegations of discriminatory jury selection by Harris County prosecutors. Federal judges also awarded a new trial to another Montgomery County death row inmate this year based on new evidence presented about forensic errors in his case.

Quintin Phillippe Jones, another Texas death row inmate who also recently lost his federal appeal because of an attorney’s tardiness, said he did everything he could to alert the federal courts to report problems months before his Fort Worth attorney blew his federal deadline. Jones wrote letters to the judge, filed two motions with the help of other prisoners in an attempt to get another attorney, and even sent two separate complaints to the state bar. Nothing worked.

“I heard he didn’t file (on time) through another lawyer,” Jones said. “I’m the one who pays for his mistake. It cost a lot, and I’m paying for it.”

I’ve said many times that while I am not philosophically opposed to the death penalty, I have major problems with the way we implement it. This is an excellent illustration of why I feel that way. I think there should be sanctions for any attorney who misses a deadline like this without a damn good reason. Actually, I think it would be far better if there were an automatic hearing at which an attorney for the inmate must explicitly state that they do not wish to pursue any further appeals so that this can’t happen by accident or neglect. I realize that the judicial system in general couldn’t operate like this – there do have to be deadlines, and they do have to mean something – but when someone’s life is on the line, I think we need to go that extra mile. And if that makes the whole system so unwieldy that we’d be better off scrapping the death penalty, I would not consider that to be a bad outcome. If we really can’t be bothered to be more diligent than this, we shouldn’t be doing it.