This is the process that is supposed to ensure that we never execute an innocent person?
Death row inmates share identical appeals
20 pages of death row inmates' appeals are identical, even errors
By Chuck Lindell
AMERICAN-STATESMAN STAFF
Sunday, February 26, 2006
Angel Maturino Resendiz, the train-hopping "Railroad Killer" from Mexico, randomly murdered at least nine people in gruesome fashion in the late 1990s.
Robert Gene Will, a young car thief sporting tattoos of a handgun and the Grim Reaper, was convicted of fatally shooting a Harris County deputy in the face.
The two men have little in common beyond an address on Texas' death row — and one other curious detail. The bulk of their legal briefs, filed 1 1/2 years apart by a Houston lawyer appointed to appeal their cases, are word-for-word identical, right down to a capitalization error on page 17.
Labeled "generic" and "lackluster" by another death-penalty defense lawyer in court do ents, the relatively brief appeals avoid common death-penalty arguments: questions of mental illness, mitigating cir stances or other specifics designed to show why a defendant should be spared execution.
Instead, the appeals focus primarily on a single technical challenge to Texas law on death-penalty jury instructions, without mentioning Resendiz or Will by name or referring to their trials. Both also list incorrect conviction dates for the men.
What's more, the appeals' author, Leslie Ribnik, missed routine filing deadlines to move Resendiz's case into the U.S. courts. Deprived of any federal review of his appeal, Resendiz faces an accelerated May 10 execution date.
Critics call Ribnik's effort, or lack of it, another blot on Texas' capital punishment system, which relies on court-appointed defense lawyers of varying experience, skill and motivation.
Much of the scrutiny has focused on trial lawyers, most famously the Houston attorney who napped repeatedly during a 1984 case, but attention is shifting to the quality of appeals, an inmate's last chance to correct trial mistakes or establish innocence.
Ribnik, 52, defended his duplicate appeals, known as writs of habeas corpus, saying they raise a valid and intriguing cons utional point germane to both cases.
"I do not apologize for it. I think it's a good argument. If I got another habeas case today and had the same issue, I would do it again, because the law has not changed," he said.
Resendiz's 20-page writ is identical to the first 20 pages of Will's writ, except for the inmates' names and legal histories. Will's writ adds eight pages challenging the prosecution's attempt to link his tattoos with gang symbols.
Ribnik said that a thorough review of the cases found no other legitimate issues to pursue.
"Some lawyers will throw in the kitchen sink. They'll make arguments they know are dead-end arguments. I just don't do that," said Ribnik, a solo prac ioner and 16-year criminal lawyer. "I make arguments I can make to the (U.S.) Supreme Court or the (Texas) Court of Criminal Appeals with a straight face."
Even so, Resendiz has new lawyers. Will might follow suit.
'Abdication of duty'
In Texas, a death sentence is followed by a direct appeal, in which lawyers ask the Court of Criminal Appeals to review perceived legal errors in the trial. These limited procedural appeals rarely succeed.
Next is the habeas review, a far more free-wheeling forum where new issues can be introduced, including claims of innocence.
If rejected by the Texas Court of Criminal Appeals, the habeas writ may proceed to the federal courts, then the 5th U.S. Circuit Court of Appeals and the U.S. Supreme Court.
Properly done, a habeas writ requires a lawyer to reinvestigate the case in search of mitigating issues such as mental illness or childhood abuse. From DNA to witness tampering to evidence withheld by the prosecution, it's all fair game.
But habeas comes with a catch that can doom inadequate writs.
Except in rare cir stances, the Texas court does not accept amended writs, and the federal courts will consider only those arguments included in the state writ.
It amounts to a one-shot opportunity for death row inmates, one that many court-appointed lawyers fall short on, according to a 2002 study by the Texas Defender Service, a nonprofit group that represents death row inmates.
The study, led "Lethal Indifference," found that 39 percent of habeas writs filed from 1995 to 2000 included no appropriate claims, allowing the courts to dismiss them out of hand. Another 30 percent were 30 pages or less.
Ribnik did not represent Resendiz or Will during his trial but was appointed later to pursue appeals. He was replaced as Resendiz's lawyer in December after a federal judge in Houston deemed his performance poor and ineffective.
Resendiz's new legal team went farther, calling Ribnik's pe ion generic and his work "an abdication of duty, worse than no representation at all."
Ribnik "filed a pe ion whose argument said nothing about Mr. Maturino Resendiz himself. . . . He did not protect his client's right to appeal," according to a brief filed on Resendiz's behalf by Robert Owen, a University of Texas adjunct law professor.
Because Ribnik blew several filing deadlines, Resendiz's federal appeal has been dismissed.
But Owen's brief asks the 5th U.S. Circuit Court of Appeals to resurrect it, arguing that the inmate should not be penalized for Ribnik's failure.
Though clearly unenthusiastic about Ribnik's one-issue writ, Resendiz's new legal team thinks any review is better than none at all.
"Especially if you are going to execute somebody, my goodness, he ought to have every appellate review available to him under the law," lawyer Jack Zimmermann of Houston said.
Ribnik said he apologized directly to Resendiz for his procedural mistakes.
"This is terribly embarrassing, not my usual work," he said. "Mr. Resendiz and the public deserve better."
Will has asked California lawyer Richard Ellis to handle the next step of his appeal if Ribnik is unsuccessful at the Texas Court of Criminal Appeals, Ellis said.
Although troubled by news of Ribnik's duplicate appeals, Ellis said he was more concerned with an apparent lack of substance in Will's state habeas writ.
"It seems a little thin. I average filing around 400 to 450 pages on habeas writs, not including exhibits, which can be another 1,000 pages," Ellis said.
Ribnik said he has a problem with the criticism by Ellis, who had not contacted him to discuss the case.
"He never got a review of what work I did or didn't do in the case, what points of error I considered or rejected," Ribnik said. "So I feel a little disarmed here."
Crucial questions
Ribnik dismissed length as a measure of a habeas writ's quality.
Nor was he bothered by criticism that the writs' main argument made no mention of Resendiz or Will.
"It didn't really turn on the facts of the particular case: the defendants, personalities, history," he said. "I challenged the law as written."
Ribnik's argument centers on the third of three questions posed to juries considering the death penalty.
First, jurors are asked to determine whether the defendant poses a threat of future violence and then whether the defendant did the actual killing or intended that a life be taken.
If they answer yes to both, jurors move to a third question: Are there mitigating cir stances, such as mental illness, that warrant a life sentence instead of execution?
Prosecutors must prove the first two questions beyond a reasonable doubt.
The mitigation question, however, is left to the accused to prove, a situation that improperly removes the burden of proof from the prosecution in violation of the Cons ution's guarantees of due process and right to trial, Ribnik claims.
"I think the mitigation issue is a damn good one that deserves review by the Supreme Court at the very least," Ribnik said.
Resendiz's new attorneys would not directly discuss Ribnik's habeas writ. But their latest court brief notes that the U.S. Supreme Court has been open to similar mitigation claims and is now reviewing a Kansas case that could validate Ribnik's views.
Yet his new lawyers also contend that Resendiz is mentally ill, a well-established mitigating factor that can lead to reversal of death sentences.
That argument might never be heard by any court, because Ribnik did not include it in his original writ.
Will, during his trial, said a fellow car thief shot and killed Deputy Barrett Hill, an innocence claim that typically would be included in the habeas writ.
Ribnik, however, said his writ has every worthy issue found during an investigation that included extensive questioning of Will, his family and his trial attorneys.
"I wish I found somebody who can't live with himself and (confessed) in one of those Matlock or Perry Mason moments," Ribnik said. "Wishing don't make it so."
Ribnik said he hired no outside investigators or experts to review Will's case but denied that it indicates a lack of effort. He said his review of the trial record found that potentially mitigating evidence, including childhood sexual abuse, was adequately introduced and considered at trial.
"I will own up to my screw-ups; I'll take my lumps. I certainly deserve them in Resendiz," Ribnik said. As for Will, he said, "I think I did a good job on that one."
[email protected], 912-2569
I'm pretty much a knee-jerk conservative; but I find no compelling argument for the death penalty.
Honestly reviewing my own position on it several years back revealed, more than anything, revenge and emotion as the primary factors for my pro-execution position. I changed my mind.
I concluded that life w/o parole was as effective a deterrent, less expensive & not a egregious an offense if society gets it wrong.
I go back and forth myself, but in theory I'm against the death penalty.
This is among the problems with the administration of the death penalty, particularly in Texas. The attorneys who represent the condemned are frequently best served, in an economic sense, by making appeals of death penalty convictions a one-size-fits-all proposition. Since they're paid by the state (or by a county) and paid at relatively paltry rates with their bills reviewed by the same judges who they're seeking to reverse, the attorneys actually have disincentives to pursue novel and complex arguments. Going above and beyond cut-and-paste briefing incurs costs that come out of the attorneys' pockets without any possibility of reimbursement. The attorneys who can separate the economic realities from the moral issues that relate to the representation of any client are few and far between. As such, the condemned get crappy and non-specific briefing and lose chances to save their lives by botched deadlines.
Those who promote the system by pointing to the numerous appeals afforded to the condemned often omit any mention of the poor quality of the appeals that are pursued. In fact, in many cases, the prisoners themselves do a better job of developing quality arguments than counsel.
Bexar County has undertaken to change that, at least in part, by creating a county public defender's office. The attorneys in that office are paid by the county and their efforts funded entirely by the county, detaching them from the harsher economics that face individual prac ioners who take criminal appointments. That removes the economic disincentives that tend to work against quality appeals and tends to afford much better representation. And, among the attorneys in the public defender's office is a brilliant death penalty attorney, who is able to undertake better efforts to ensure that her clients are afforded a fair day in court with the best arguments that can be made to save their lives.
Say no to death row....!!!!
Well, I am not a knee jerk conservative. I like the law of the old west. Hang
them at sunrise. I feel no sorrow for those that take the life of others.
From a guy who won't send his own to war.
And for those who want protect their right to take care of the poor homless.
Go back under you bridge.
Why do you like to talk about my background so much, does it make you feel better?
Do you really think it changes the truth?
Does it bother you that someone wants to give those who live in distant lands
the same as you would give those that live under bridges. I don't really know
what you have given to those overseas, but I wonder how much you have given
of yourself. You said in a recent posting that you are a student of the bible. But
you certainly don't come across that way. You want to do something, do it. But
don't expect others to contribute, especially since you want to condemn before
you know what they do.
Yea, you're so against giving any penny to elpimpo or anyone to get an education, training, housing, food, or whatever,
but You want to give those things to them in Iraq, you're really convincing me Xray.
I believe you.
Yep, you are right. How many trillions do you want to give people? One of the
real problems of this world is Africa. Genocide. Hunger. But only people, you
and others like you want to help are the socialist. Not those that want to build
a better world. The one thing that all people like keep forgetting is that government
is not a profit making en y. They only take. And give to those that they deem
deserving. Capitalist employ, yeah with a profit motive, but if I remember correctly
you are a small business owner. You do that for the betterment of others or to
make profit? What you do with you profit is your business, but don't expect others
in the profit making business to do so just to help others. That is not their
motive. How about getting some people into the picture that wants to create jobs
and make money that in turn provides homes and food for people....
Why aren't we at war in Africa, then?
So, then, the Iraqi people are deserving of aid, but the homeless guy who lost his job when that job was shipped out to India is just a deadbeat who deserves nothing? You're more interested in investing taxpayer money on uplifting the people of far-off lands than you are in even trying to uplift the people right here at home?
That makes perfect sense.
Of course, I have no idea what any of that has to do with the poor quality of appellate representation afforded to the condemned, but I'm sure there's a logical nexus there somewhere.
ahem... where xray is involved... I wouldn't count on it
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