March 18, 2005

A wider death-penalty lawyer pool

Bill clears need for experience in representing capital defendants

By JANET ELLIOTT
Copyright 2005 Houston Chronicle Austin Bureau

AUSTIN - Former prosecutors with no experience as defense attorneys could qualify for appointment to death penalty cases under a bill given preliminary House approval Thursday.

House Bill 268 would create a larger pool of attorneys who could be appointed to represent indigent defendants, said House Criminal Jurisprudence Committee Chairman Terry Keel, R-Austin, author of the bill.

The House voted unanimously in favor of the bill. A final vote is scheduled Monday.

Under current law, an attorney must have experience as lead defense counsel in a significant number of felony cases, including homicide trials, before being appointed to a death penalty case.

Keel's bill would require attorneys to "exhibit proficiency and commitment to providing quality representation to defendants in death penalty cases" and to receive training.

Supporters say former prosecutors have experience and skills that defense attorneys lack, such as the ability to anticipate the prosecution's strategy and cross-examination.

"This bill makes Texas standards the best in the nation in terms of qualifications," Keel said.

Critics say the bill is a step backward in efforts to improve the quality of lawyers who defend individuals on trial for their lives.

"The idea that you're going to improve the quality of lawyers by lowering the standards and expanding the pool of lawyers who are able to get appointed is exactly the opposite of what's needed to improve capital defendant representation," said Bill Beardall, director of the Equal Justice Center.

Andrea Marsh, director of the Fair Defense Project of the ACLU of Texas, said death penalty cases are the "wrong kind of case to have someone learning as they go along."

Keel said his bill would for the first time require attorneys to have experience selecting a jury in a death penalty case as part of a prosecution or defense trial team. It also would prohibit the appointment of anyone found to have rendered ineffective assistance during a trial or appeal of a criminal case.

Beardall and Marsh are supporting the Fair Defense Improvement Act, Senate Bill 1218, filed by Sen. Rodney Ellis, D-Houston.

That bill would boost state funding for indigent defense to reduce the financial burden on Texas counties, which pay for 90 percent of the legal fees.

janet.elliott@chron.com