CCA urged not to set bar too high for rule to stop last-minute filings in death penalty cases

Texas Defender Service lawyers David Dow and Katherine Black had their day in court today – the Court of Criminal Appeals, that is -- to explain their “untimely filings” last month in a death-row inmate’s case. But Dow’s explanation that Danielle Simpson’s case was unusual prompted a pointed response from CCA Judge Cathy Cochran at one point during the hearing. “We do have a lot of late filings from TDS,” Cochran said. Dow, TDS litigation director and a professor at the University of Houston Law Center, disagreed and said Cochran has praised TDS for its work in the past. The CCA ordered Dow and Black to appear before the court today to explain why they failed to meet the requirements of Miscellaneous Rule 08-101, adopted by the court in June 2008. Under that rule, 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 CCA can sanction attorneys who do not comply with the rule. According to the CCA’s show-cause order in In Re: Dow and Black, the two TDS attorneys filed a subsequent application for writ of habeas corpus and a motion to stay Simpson’s Nov. 18 execution at 4:08 p.m. on Nov. 17. The state executed Simpson the following day. As required by the CCA’s rule, Dow filed a sworn statement to explain the untimely filing, but the court ordered both TDS attorneys to appear for the show-cause hearing. Black also filed an identical sworn statement with the CCA today. University of Texas School of Law professor Jordan Steiker, who represents Dow and Black, told the CCA that there is “very good reason” for the court not to set the bar so high that it conflicts with a lawyer’s zealous representation of a client. Steiker said the TDS attorneys had three options: They could have filed pleadings before those pleadings were legally and actually sound; they could file untimely pleadings with an affidavit attached to explain why they could not file earlier; or they could have filed nothing at all. The first and third options were unacceptable, he said. Steiker also noted that Dow and Black did not receive Simpson’s files until Nov. 9. “This is not a case where the lawyers were sitting on this claim for months or years,” Steiker said. Dow told the CCA that it could stop last-minute filings on execution days by improving the quality of lawyers appointed to represent death-row inmates in habeas corpus writ applications. Presiding Judge Sharon Keller did not participate in the Simpson case or in the show-cause hearing. Keller faces ethics charges filed by the State Commission on Judicial Conduct related to the case of death-row inmate Michael Richard, who was executed in 2007; Dow represented Richard. At the conclusion of today's hearing, CCA Judge Lawrence Meyers said the court would issue a statement or opinion at a later time.
-- Mary Alice Robbins