Lethally Deficient

Lethally Deficient – A New TDS Report on Texas’ Direct Appeal Process

TDS has issued it’s latest report, Lethally Deficient: Direct Appeals in Texas Death Penalty Cases.

Here is our news release:

New Report Examines Texas Death Penalty Direct Appeal Process and Practices

TDS Report, “Lethally Deficient,” Finds System in Dire Need of Reform


Texas’ system of providing direct appeal representation in death penalty cases is in dire need of reform, according to a new report by Texas Defender Service. The report, Lethally Deficient, evaluates six years of direct death penalty appeals and concludes that the current system is broken. The Texas Legislature should, Texas Defender Service recommends, create a capital appellate defender office to handle these appeals, establish a statewide appointment system with caseload controls and uniform compensation, and require the appointment of two qualified lawyers to each death penalty direct appeal.

Lethally Deficient: Direct Appeals in Texas Death Penalty Cases is the first report to engage in an in-depth examination of direct appeals for Texas death penalty cases.  Texas law requires all death sentences to be directly appealed from the trial court to the Texas Court of Criminal Appeals.  A direct appeal is based on the trial record and transcript.

“This report documents that, in case after case, most death row inmates are not well represented on direct appeal,” said Kathryn Kase, Executive Director of Texas Defender Service, a nonprofit law firm that works on capital cases and related criminal justice issues. “Texas should do what it did to address the crisis in capital habeas representation: create a public defender office that handles only direct death penalty appeals.”

TDS examined all direct appeals filed in each of the 84 death penalty cases decided by the Court of Criminal Appeals between January 1, 2009 and December 31, 2015.

The study uncovers multiple deficits in capital direct appeal representation.  Lawyers submitted briefs that recycled failed legal arguments without updating to reflect current law, failed to meet — and at times, correspond with — their clients, failed to request oral argument, and avoided filing reply briefs and applications for U.S. Supreme Court review.  And while other jurisdictions reported attorneys needing between 500 and 1,000 hours to brief a capital direct appeal, defense lawyers for the cases in the TDS study billed between 72.1 to 535.0 hours for each appeal, for an average of only 275.9 hours.

In the six years – 2009 through 2015 – that these deficiencies occurred, TDS found that the CCA did not reverse a single conviction in a death penalty case on direct appeal. The CCA affirmed convictions and death sentences in 79 cases, and reversed death sentences in just three cases.

When compared to capital litigants in other jurisdictions, Texas death penalty appellants fare far worse.  Death row inmates outside Texas are 2.8 times more likely to have their cases reversed on direct appeal. TDS reviewed 1,060 capital direct appeal decisions issued by the highest courts in the 30 other death penalty states between 2005 and 2015, and these courts collectively reversed 16.0% of all death sentences.  By contrast, the Texas Court of Criminal Appeals reversed just 5.7% of the death penalty cases heard on direct appeal between 2005 and 2015.

“The tragedy of direct appeals in Texas capital cases is not simply that lawyers underperform, often pasting together briefs, skipping oral argument, or declining to do other basic tasks such as filing reply briefs. It is that everyone knows that this is happening, from the Texas Court of Criminal Appeals on down. It is an embarrassment to the legal profession and a testament to the low expectations in Texas surrounding defense representation in capital cases,” said Jordan Steiker, Co-Director of the Capital Punishment Center at The University of Texas School of Law.

Texas law requires the appointment of only one defense lawyer to represent an indigent death row inmate on direct appeal. This leaves the defense short-handed and runs counter to recommendations from the State Bar of Texas and the American Bar Association that two lawyers represent a defendant throughout a death penalty case.

By contrast, the report observes, prosecutors have substantial institutional resources at their disposal. Cases within the TDS survey were handled by as many as three different assistant district attorneys; private members of the bar assisted the prosecution in at least four cases; and assistants with the Attorney General’s Office served as co-counsel with local prosecutors in at least two cases. In addition, the State Prosecuting Attorney’s Office represents the State of Texas in all proceedings before the CCA and provides the prosecution with an additional layer of representation.

The defense also is hobbled by a variety of compensation schemes that result in underpaid defense counsel.  Some counties continue to pay flat fees or to limit compensation for direct appeals of death penalty cases. Neither the flat fees nor the fee caps, which amount to $15,000 or less, are rooted in time estimates for representation. Attorneys who spend time reviewing the record and copiously briefing the case will operate at a substantial deficit under these payment schemes. Even where an hourly rate is provided, the amount is often insufficient to cover the cost of overhead for a modern law practice. None of the Texas compensation programs adhere to best practices articulated by the ABA.

In order to safeguard a condemned defendant’s right to counsel as well as accuracy in its appellate review process, TDS recommends that the Texas Legislature should:

1) create a capital appellate defender office,

2) establish a statewide appointment system with effective caseload controls and uniform compensation,

3) require the appointment of two qualified lawyers to each death penalty direct appeal.

These reforms would establish parity between the defense and prosecution when death penalty cases are on direct appeal in Texas, provide effective – and cost-effective – advocacy and ensure the fair administration of justice in Texas’ capital punishment system.

“Texas has made enormous strides in its effort to reform indigent legal services in general, and in capital indigent representation, since 2001. These measures are the necessary next steps in delivering a promise that the first Texas Code of Criminal Procedure laid out in 1857, promising adequate legal assistance to indigents facing the mighty powers of the state,” Kase said.

Texas Defender Service is a nonprofit law firm that works for a better, more just criminal justice system, particularly in the state’s administration of capital punishment. Lethally Deficient is the fifth report that TDS has released since 2000 examining aspects of Texas’ administration of capital punishment. It has also co-issued two additional reports.

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Lethally Deficient, and earlier TDS reports are available at our Publications page on this website.

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