The American Bar Association filed an amicus brief last Thursday with the U.S. Supreme Court, asking the justices to grant certiorari in a Texas capital case due to the failure of the Texas Court of Criminal Appeals to adhere to the court’s prior instructions regarding ineffective assistance of counsel.
The case challenges whether the Texas court, the state’s highest for criminal matters, followed the Supreme Court’s instructions in 2020 after the Supreme Court concluded that defense counsel had been constitutionally ineffective for failing to investigate significant mitigating evidence. The high court directed the Texas court to perform a proper analysis of whether that ineffective assistance prejudiced the petitioner, who was convicted of two counts of murder. His death sentence – not guilt – is at issue in the appeal.
In its June 2020 opinion issued in the name of the court, a majority of justices concluded that the defendant’s counsel fell short of his obligation to investigate and present evidence of mitigating circumstances that could have spared the defendant the death penalty. The Supreme Court's 2020 opinion described a “tidal wave” of mitigating evidence that the jury never had the opportunity to consider due to counsel’s deficient performance.
ABA brief notes that the defendant’s trial counsel acknowledged “that he did not investigate or present to the jury evidence” that his client had attempted suicide, was traumatized from his juvenile incarceration or was professionally diagnosed as having “very pronounced trauma and post-traumatic stress disorder symptoms.”
In May 2021, considering the case on remand from the Supreme Court, the Texas court again found that the defendant’s right to effective representation was not violated. The ABA’s brief argues that the Texas court’s analysis failed to properly consider the prejudicial effect of counsel’s deficient performance, and that it did so by disregarding the factual findings of the U.S. Supreme Court, in violation of principles of legal precedent and the rule of law.
The ABA does not take a stand on capital punishment other than to say it should be meted out fairly and with constitutional safeguards. The amicus brief, for example, noted that in 1989 the ABA issued Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases. The ABA revised them in 2003 to update and expand upon the obligations of lawyers in death-penalty jurisdictions and to explain why the practices recommended by the Guidelines are essential to ensure fairness and reliability in capital cases.
The law firm of DLA Piper LLP filed the brief pro bono on behalf of the ABA.
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