17 November 2006

Another Shameful Texas Legal Mess

State taxpayers paid $25,000 for the Acker writ — $22,270 for Toby Wilkinson, the Greenville lawyer who prepared the document [a habeas corpus writ in a death penalty case] in 2003, and the rest to a private investigator and medical expert.

What did the lawyer do for his money? He copied a letter from his inmate client verbatim.

Rather than setting forth facts and a legal argument, the

writ, however, relied prominently on a series of first-person rants in which Acker decried the "trumped up bogus case" against him.

One memorable passage stated: "I'm just about out of carbon paper. As soon as I get some more typing supplies I have about thirty more errors I want . . . in my appeal."

The Court did give the case a harder than usual look:

The Texas Court of Criminal Appeals denied Acker's writ application in a two-page order. The nine-member court conducted its own review of Wilkinson's allegations and compared them to the trial record before issuing its denial, the order said.

The court typically rules on writs within six months. Acker's writ was pending for 3 1/2 years before Wednesday's decision.

But, this doesn't cut it. The Texas Court of Criminal Appeals isn't an appropriate advocate for a man facing a death penalty. By law, it must be neutral, by reputation, it is a hanging court that routinely twists the law to secure punishments in the face of procedural missteps at trial. When an appellate court gets a pleading like this, their reaction should be to do what a Nevada judge did when a lawyer in a serious felony case turned up drunk with hooker hours late for court -- immediately drum the lawyer out of the case and appoint effective replacement counsel.

As for Toby Wilkinson? He deserves not only to be disbarred immediately, sua sponte, but also to face the maximum punitive sanction in terms of fines and jail time for contempt of court, and an order to refund the full $25,000 he was paid to the state. Filing this kind of document in a death penalty case effectively spits in the fact of the dignity of the court. I'm not sure that I could bear to go on living after doing something so shameful.

And, a system that allows someone like this to be appointed to a case like this is again, a sign that the state has abjectly failed to establish a system that protects a defendant's right to counsel, yet again.

Texas is bannana republic. It's courts, at least in criminal cases, have a long standing history of utter disregard for due process. Maybe its time to federalize the national guard and have them run Texas. They couldn't do much worse.

Footnote: Was Toby Wilkinson crazy like a fox? He did get his client three more years of life through the increased time it took the court to process the case. And, he created a solid issue for the defendant on habeas corpus review. And, he surely knew that no matter how solid his arguments were, that they wouldn't be accepted at this stage of the proceeding by an unfair appellate court.

If so, it only shows, again, that the Texas Court of Criminal Appeals doesn't get it. If they really want to support law and order, they have to make the process work. By trying to puzzle out a brief that, within the meaning of the plain error standard, shows ineffective assistance of counsel, they screwed up. The only way to make the case stick is to get this man a real lawyer. Even they shouldn't have to put up with the kind of shit that Wilkinson pulled, and he needs to take the punishment he deserves for it like a man. Not only is the Texas Court of Criminal Appeals malicious, it is incompetent as well.

Hat Tip to How Appealing.

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