Texas Caps Fees For Lawyers Who Help Death-Row Inmates

THIS has been a bleak year for death-row inmates needing help with legal appeals.

In September, Congress extinguished the resource centers that helped train and assist lawyers for capital convicts' federal habeas corpus appeals, which examine a trial's fairness. The centers were vigilant in helping inmates turn every stone to avoid execution. But many lawmakers regarded the centers' often last-minute maneuvers as delaying rather than ensuring justice.

Now more troubling news for capital convicts comes from Texas, the nation's leading executioner. Under a new law, the state will pay lawyers who handle one level of a capital convict's appeal. But its just-announced cap on legal fees for those appeals, many lawyers here say, is far too low to provide effective counsel.

Vincent Perini, who chairs a state bar committee on legal counsel for death-row inmates, calls the low cap "ridiculous."

But the state's top criminal court judge disagrees. Judge Michael McCormick, who presides over the Court of Criminal Appeals and set the fee cap, calls the new system "a great thing" for the quality of capital-convict representation.

The dispute about the fee cap raises anew the question of whether the United States, one of the few industrialized nations with the death penalty, intends to provide capital convicts with the resources to mount an adequate defense at a time when more crimes are being made punishable by death.

The outlook for legal representation for capital appeals "is definitely getting worse," says Richard Dieter, executive director of the Death Penalty Information Center in Washington. The DPIC opposes capital punishment for practical and ethical reasons.

Low bidder

The Texas fee cap, Mr. Dieter says, means an appeal "is going to be handled by whoever is the low bidder."

Texas has always required counties that try an indigent capital defendant to pay for his trial lawyer. They also must pay for a lawyer to handle the defendant's direct appeal to the Court of Criminal Appeals. That appeal looks at the trial record for factual errors.

But until this year, Texas law did not say who was responsible for paying for a state habeas defense appeal. Some wealthy counties did so voluntarily in order to keep their cases moving. But others didn't, allowing capital cases to languish in limbo for years.

State sets pay limits

Last spring, the Texas Legislature voted to make the state pay for the defendant's state habeas lawyer. The law took effect Sept. 1, but the Court of Criminal Appeals did not set the fees for such cases until just this month.

Mr. McCormick, who helped write the law that brought the death penalty back to Texas in 1973, says Texas will pay for up to 75 hours of work on a state habeas appeal. He calls the hourly basis "a pretty good ballpark" figure for such cases. But Mr. Perini says 250 hours is more realistic.

McCormick recently invited 3,000 Texas lawyers to qualify for appointment to state habeas cases. He expects 300 responses and perhaps half as many to actually apply.

Larry Mitchell, a veteran of state habeas appeals, is dubious about the new cap. Dallas County once paid him for 300 hours of work on a case, meaning that Mr. Mitchell's client got a more thorough defense than the new law may permit.

Mitchell explains that he begins each such case by reading the trial record. Most run a few thousand pages, but he's had some top 13,000 pages.

Just becoming familiar with a case, he says, will use up most of the time the Court of Criminal Appeals would allow.

"I doubt that I'll be interested" in handling state habeas appeals under the new system, Mitchell says.

If other lawyers follow suit, Texas could have a tough time finding lawyers for the 234 death-row inmates who await a state habeas appeal, let alone the 50 new cases each year.

McCormick says lawyers who need to work more hours can apply to the court for more money. And the court can go to the Legislature when it next convenes in 1997 to seek additional funding for state habeas appeals.