What is up with criminal defense lawyers in Texas?
In the case of Virgil v. Dretke, a habeas corpus petition related to a criminal case, where a man was sentenced to 30 years in prison, sometime in 2000, for assaulting an elderly person, two of the jurors said in voire dire (part of the process of seating the jury) that they could not be fair and impartial and were biased against the defendant. Yet, the defense attorney didn't object or pursue the matter further, and they ended up on the jury.
The intermediate appellate court in Texas (on February 21, 2001), the Texas Court of Criminal Appeals (the highest court in Texas for such cases), a state habeas corpus trial court, the Texas Court of Criminal Appeals (again), and the United States District Court for the Southern District of Texas all found that this wasn't a problem and denied his appeals. Finally, today, more than five years after the conviction was entered, the conservative 5th Circuit Court of Appeals held that Virgil has received ineffective assistance of counsel, entitling him to a new trial, or if a new trial is not promptly commenced to be released within 90 days.
I could understand how a mediocre, but borderline competent, defense attorney might fail to ask the right question on voire dire and thus miss a key juror bias. But, failing to ask that a juror be removed from the jury pool after asking the right question "can you be fair and impartial in this case" and getting the wrong answer, is hard to imagine. And, the fact that five different courts considering this case after the fact found that this was unimportant in unpublished opinions is also a disturbing indictment of the Texas criminal justice system.
If this were an isolated case, it might be excusable. Thousands of cases make their way through the criminal justice system each year, and naturally, somebody is going to be on the receiving end of an improbable, but probably inevitable series of errors. But, the endless barrage of grossly incorrect rulings from the Texas criminal courts, to the point where on one occassion the 5th Circuit Court of Appeals even defied the U.S. Supreme Court by adopting the text of a dissenting Supreme Court opinion in its ruling on remand, points to a system that is almost beyond repair. Surely then, it is no coincidence, that Texas is also the state that carries out more executions than any other since the death penalty was made legal in the United States, and rivals almost every other country in the world, on a per capita basis, for executions. It is hard to believe, given the widespread failures of the Texas criminal justice system, that all of those executions were procured properly.
Perhaps, Virgil is guilty and will be convicted on retrial. It is certainly possible. But, everyone deserves a fair trial, and this imperative is particularly great when a thirty year sentence is imposed for what would be, in the absence of a prior criminal record and the aggravating fact that the injury involved an elderly person, a case a simple misdemeanor assault resulting in no serious bodily injury.
Hat Tip to How Appealing.