Texas's highest criminal court harrassing anti-death penalty lawyers

By Mary Alice Robbins, Texas Lawyer
November 25, 2009

CCA Show Cause Order Directs Lawyers to Explain Untimely Filing

Two years ago, David Dow and the Texas Defender Service were embroiled in a controversy after a thwarted last-minute attempt to file pleadings for a death-row inmate. Now Dow and Katherine Black, his TDS co-counsel in a different death penalty case, have been ordered to appear before the Court of Criminal Appeals to explain an “untimely filing,” and they face possible sanctions under one of the CCA’s rules.

On Nov. 18, the CCA ordered Dow, the TDS litigation director, and Black, a TDS staff attorney, to appear before the court for a Dec. 2 hearing to show cause for the untimely filed documents in Ex Parte Simpson. Dow and Black work in the Houston office of TDS, a nonprofit organization that seeks to improve the representation of death-row inmates.

As noted in the CCA’s order, Sharon Keller, the court’s presiding judge, did not participate in Simpson and is not participating in the court’s show cause hearing for Dow and Black.

Keller faces ethics charges filed by the State Commission on Judicial Conduct in connection with her statement that the CCA clerk’s office would close at 5 p.m. on Sept. 25, 2007. TDS had sought to file a stay of execution and writ of prohibition in Michael Richard’s case that day after the clerk’s office’s normal business hours. Dow represented Richard, whom the state executed later that day. Keller denies the commission’s allegations; she has contended she did nothing wrong and only responded to an inquiry as to whether the CCA clerk’s office would remain open past 5 p.m., which was merely an administrative matter. [“See Tough Fight at Sharon Keller’s Ethics Hearing,” Texas Lawyer, Aug. 24, 2009, page 1.]

According to the CCA’s order in In Re Dow and Black, the two TDS attorneys filed a subsequent application for a writ of habeas corpus and a motion to stay the Nov. 18 execution of Danielle Simpson in the 3rd District Court in Anderson County at 4:08 p.m. Nov. 17. Under the CCA’s Miscellaneous Rule 08-101, adopted June 23, 2008, any motion relating to a death sentence is deemed untimely if filed less than 48 hours before 6 p.m. on the scheduled execution date. The rule requires an attorney who seeks to file an untimely motion meant to stop an execution to “attach to the proposed filing a detailed explanation stating under oath, subject to the penalties of perjury, the reason for the delay and why counsel found it physically, legally or factually impossible to file a timely request or motion.”

Under the CCA’s rule, an attorney who fails to attach a sworn, detailed explanation to an untimely filing or who fails to adequately justify the necessity for the untimely filing shall be sanctioned. As noted in the rule, such sanctions can include, but are not limited to, referral to the State Bar of Texas chief disciplinary counsel, contempt of court, removal from the list of attorneys eligible to be appointed to represent death-row inmates in filing habeas corpus writ applications or restitution of costs incurred by the opposing party.

When asked about the CCA’s order, Dow says, “I’m not interested in talking about it.” Black did not return three telephone calls seeking comment by presstime Nov. 25.

Reasons for Rule

CCA Judge Paul Womack, chairman of the court’s rules committee, says, “The rule was adopted to ensure that the court would have sufficient time to consider and decide motions in these cases, while recognizing that in rare instances there might be a need for a filing less than 48 hours before a scheduled execution date.”

Womack says the court saw a need to reduce to a minimum the number of last-minute filings in death penalty cases.

Sian Schilhab, the CCA’s general counsel, says the court enacted the rule because the court has had people who filed anything they thought would keep a case going.

CCA Judge Cathy Cochran, a member of the court’s rules committee and its immediate past chairwoman, says the court will review pleadings, no matter what time they come in. The “trade-off,” Cochran says, is the court will look at whether the attorney has done everything he should to file a document in time to meet the 48-hour requirement. That’s the reason the rule requires an attorney to file a certificate of compliance, or statement, explaining why physically he could not have discovered the claim, investigated it and filed the pleading before he did, Cochran says.

Cochran says the CCA patterned its rule after a 5th U.S. Circuit Court of Appeals rule.

Rule 8.10 of the 5th Circuit’s Rules and Internal Operating Procedures sets a five-day deadline prior to a scheduled execution for attorneys to file for a certificate of appealability, permission to file a successive habeas writ petition or an appeal from a district court judgment. Like the CCA’s Miscellaneous Rule 08-101, the 5th Circuit rule requires an attorney to attach to an untimely filing a detailed explanation stating under oath the reason for the delay, authorizes the court to direct an attorney to show good cause for a late filing and provides for sanctions if an attorney cannot justify the delay.

Simpson’s Application for Postconviction Writ of Habeas Corpus, which is signed by Dow and which lists Dow and Black as his attorneys, raised a Batson v. Kentucky claim, based on the U.S. Supreme Court’s 2005 decision in Miller-El v. Dretke, regarding the state’s exercise of peremptory challenges to eliminate two black potential jurors from Simpson’s trial. Under Miller-El, the application says, courts reviewing Batson challenges must examine whether the state engaged in disparate questioning of black and white jurors to determine whether a juror was challenged for a race-neutral reason. As alleged in Simpson’s application, the CCA’s unpublished April 29 decision in Ex Parte Williams recognized that “the Supreme Court’s decision in Miller-El has the practical effect of modifying the underlying constitutional right recognized in Batson.”

In a Nov. 18 opinion, the CCA dismissed the application in Ex Parte Simpson, finding that it failed to satisfy the requirements of Texas Code of Criminal Procedure Article 11.071 §5. The statutory provision provides in relevant part that a court may not grant relief based on a subsequent application for writ of habeas corpus unless it contains sufficient facts to establish that the claims and issues could not have been presented in a previous writ application.

According to the CCA’s opinion, the court also denied Simpson’s motion for stay of execution. The Texas Department of Criminal Justice Web site shows the state executed Simpson on Nov. 18 for the 2000 murder of an 84-year-old woman.

Dow wrote in a three-page sworn statement attached to Simpson’s application that he worked pro bono for Simpson, who first contacted Dow in May. As noted in the statement, TDS did not obtain Simpson’s file until Nov. 6, when Simpson retained Dow as his counsel. Dow wrote that TDS initially focused on Simpson’s claims under the U.S. Supreme Court’s 2002 decision in Atkins v. Virginia, which prohibits the execution of mentally retarded persons. However, Dow noted in the statement that TDS determined Nov. 15 that Simpson’s Batson claim appeared to be affected by the Supreme Court’s Miller-El decision and the CCA’s Williams decision and began preparing the habeas corpus writ application.

But, as Dow pointed out in the statement, “lawyers in our office were simultaneously assisting lawyers representing” death-row inmate Gerald Eldridge, whose execution date was set for Nov. 17. U.S. District Judge Lee Rosenthal granted Eldridge a 90-day stay of execution on Nov. 17 to determine whether he is mentally competent to be executed.

“The demands imposed by Mr. Eldridge’s case, coupled with the demands imposed by the other work we had undertaken on Mr. Simpson’s behalf, simply made it impossible for us to get the Batson/Miller-El claim completed forty-eight hours in advance of the execution,” Dow wrote in the statement.

However, Cochran says the CCA is not totally satisfied with that explanation.

“We want a better explanation,” Cochran says. “That’s why we’ve invited the lawyers to come up and explain that.”

The Court of Criminals Appeals’ order directing Dow and Black to appear before the court and show cause for the untimely filings in Simpson is only the second such order that the CCA has issued since adopting its June 2008 rule. In a Nov. 28, 2008, order, the CCA directed K.S. “Gator” Dunn of the Dunn Law Firm in Conroe to appear at a Jan. 14, hearing to show cause why he filed an untimely subsequent habeas corpus writ application for death-row inmate Eric Cathey. Schilhab says the CCA did not sanction Dunn, who declines comment.

As noted in the CCA’s order, while Dow filed an explanation for the untimely filing, Black neither signed Dow’s explanation nor filed her own explanation.

Criminal defense attorney David Botsford, who reviewed the CCA’s Miscellaneous Rule 08-101, says that while one could interpret the rule to require each counsel who signs on a pleading to file an explanation if the pleading does not meet the 48-hour filing requirement, “[t]he rule doesn’t specifically say each counsel who signs on a pleading has to do that.”

Botsford, a partner in Austin’s Botsford & Roark, who represents death-row inmates in habeas corpus writ applications, also notes that an attorney who gets involved Nov. 6 in the case of an inmate scheduled for execution Nov. 18 would have only 10 days under the CCA’s rule to file the pleadings.

“That’s not a significant amount of time,” he says.

Botsford says he is sympathetic with attorneys who are willing to represent death-row inmates pro bono.

“We don’t want to throw up legal impediments to people doing that,” he says.

Anderson County Criminal District Attorney Doug Lowe, who prosecuted Simpson, says he believes the rule is justified.

Speaking generally, Lowe says, he think the purpose of the rule is to stop “last-second, last-ditch filing.”

Lowe says that as a local prosecutor, he sees what happens to the crime victims’ survivors — who are themselves victims — waiting for the execution of the person who murdered their loved one.

“When you’ve got victims sitting down there waiting, it’s just tortuous,” he says.