Death row inmates share identical appeals

20 pages of death row inmates' appeals are identical, even errors

By Chuck Lindell
AMERICAN-STATESMAN STAFF
Sunday, February 26, 2006

Angel Maturino Resendiz, the train-hopping "Railroad Killer" from Mexico, randomly murdered at least nine people in gruesome fashion in the late 1990s.

Robert Gene Will, a young car thief sporting tattoos of a handgun and the Grim Reaper, was convicted of fatally shooting a Harris County deputy in the face.

The two men have little in common beyond an address on Texas' death row � and one other curious detail. The bulk of their legal briefs, filed 1 1/2 years apart by a Houston lawyer appointed to appeal their cases, are word-for-word identical, right down to a capitalization error on page 17.

Labeled "generic" and "lackluster" by another death-penalty defense lawyer in court documents, the relatively brief appeals avoid common death-penalty arguments: questions of mental illness, mitigating circumstances or other specifics designed to show why a defendant should be spared execution.

Instead, the appeals focus primarily on a single technical challenge to Texas law on death-penalty jury instructions, without mentioning Resendiz or Will by name or referring to their trials. Both also list incorrect conviction dates for the men.

What's more, the appeals' author, Leslie Ribnik, missed routine filing deadlines to move Resendiz's case into the U.S. courts. Deprived of any federal review of his appeal, Resendiz faces an accelerated May 10 execution date.

Critics call Ribnik's effort, or lack of it, another blot on Texas' capital punishment system, which relies on court-appointed defense lawyers of varying experience, skill and motivation.

Much of the scrutiny has focused on trial lawyers, most famously the Houston attorney who napped repeatedly during a 1984 case, but attention is shifting to the quality of appeals, an inmate's last chance to correct trial mistakes or establish innocence.

Ribnik, 52, defended his duplicate appeals, known as writs of habeas corpus, saying they raise a valid and intriguing constitutional point germane to both cases.

"I do not apologize for it. I think it's a good argument. If I got another habeas case today and had the same issue, I would do it again, because the law has not changed," he said.

Resendiz's 20-page writ is identical to the first 20 pages of Will's writ, except for the inmates' names and legal histories. Will's writ adds eight pages challenging the prosecution's attempt to link his tattoos with gang symbols.

Ribnik said that a thorough review of the cases found no other legitimate issues to pursue.

"Some lawyers will throw in the kitchen sink. They'll make arguments they know are dead-end arguments. I just don't do that," said Ribnik, a solo practitioner and 16-year criminal lawyer. "I make arguments I can make to the (U.S.) Supreme Court or the (Texas) Court of Criminal Appeals with a straight face."

Even so, Resendiz has new lawyers. Will might follow suit.

'Abdication of duty'

In Texas, a death sentence is followed by a direct appeal, in which lawyers ask the Court of Criminal Appeals to review perceived legal errors in the trial. These limited procedural appeals rarely succeed.

Next is the habeas review, a far more free-wheeling forum where new issues can be introduced, including claims of innocence.

If rejected by the Texas Court of Criminal Appeals, the habeas writ may proceed to the federal courts, then the 5th U.S. Circuit Court of Appeals and the U.S. Supreme Court.

Properly done, a habeas writ requires a lawyer to reinvestigate the case in search of mitigating issues such as mental illness or childhood abuse. From DNA to witness tampering to evidence withheld by the prosecution, it's all fair game.

But habeas comes with a catch that can doom inadequate writs.

Except in rare circumstances, the Texas court does not accept amended writs, and the federal courts will consider only those arguments included in the state writ.

It amounts to a one-shot opportunity for death row inmates, one that many court-appointed lawyers fall short on, according to a 2002 study by the Texas Defender Service, a nonprofit group that represents death row inmates.

The study, titled "Lethal Indifference," found that 39 percent of habeas writs filed from 1995 to 2000 included no appropriate claims, allowing the courts to dismiss them out of hand. Another 30 percent were 30 pages or less.

Ribnik did not represent Resendiz or Will during his trial but was appointed later to pursue appeals. He was replaced as Resendiz's lawyer in December after a federal judge in Houston deemed his performance poor and ineffective.

Resendiz's new legal team went farther, calling Ribnik's petition generic and his work "an abdication of duty, worse than no representation at all."

Ribnik "filed a petition whose argument said nothing about Mr. Maturino Resendiz himself. . . . He did not protect his client's right to appeal," according to a brief filed on Resendiz's behalf by Robert Owen, a University of Texas adjunct law professor.

Because Ribnik blew several filing deadlines, Resendiz's federal appeal has been dismissed.

But Owen's brief asks the 5th U.S. Circuit Court of Appeals to resurrect it, arguing that the inmate should not be penalized for Ribnik's failure.

Though clearly unenthusiastic about Ribnik's one-issue writ, Resendiz's new legal team thinks any review is better than none at all.

"Especially if you are going to execute somebody, my goodness, he ought to have every appellate review available to him under the law," lawyer Jack Zimmermann of Houston said.

Ribnik said he apologized directly to Resendiz for his procedural mistakes.

"This is terribly embarrassing, not my usual work," he said. "Mr. Resendiz and the public deserve better."

Will has asked California lawyer Richard Ellis to handle the next step of his appeal if Ribnik is unsuccessful at the Texas Court of Criminal Appeals, Ellis said.

Although troubled by news of Ribnik's duplicate appeals, Ellis said he was more concerned with an apparent lack of substance in Will's state habeas writ.

"It seems a little thin. I average filing around 400 to 450 pages on habeas writs, not including exhibits, which can be another 1,000 pages," Ellis said.

Ribnik said he has a problem with the criticism by Ellis, who had not contacted him to discuss the case.

"He never got a review of what work I did or didn't do in the case, what points of error I considered or rejected," Ribnik said. "So I feel a little disarmed here."

Crucial questions

Ribnik dismissed length as a measure of a habeas writ's quality.

Nor was he bothered by criticism that the writs' main argument made no mention of Resendiz or Will.

"It didn't really turn on the facts of the particular case: the defendants, personalities, history," he said. "I challenged the law as written."

Ribnik's argument centers on the third of three questions posed to juries considering the death penalty.

First, jurors are asked to determine whether the defendant poses a threat of future violence and then whether the defendant did the actual killing or intended that a life be taken.

If they answer yes to both, jurors move to a third question: Are there mitigating circumstances, such as mental illness, that warrant a life sentence instead of execution?

Prosecutors must prove the first two questions beyond a reasonable doubt.

The mitigation question, however, is left to the accused to prove, a situation that improperly removes the burden of proof from the prosecution in violation of the Constitution's guarantees of due process and right to trial, Ribnik claims.

"I think the mitigation issue is a damn good one that deserves review by the Supreme Court at the very least," Ribnik said.

Resendiz's new attorneys would not directly discuss Ribnik's habeas writ. But their latest court brief notes that the U.S. Supreme Court has been open to similar mitigation claims and is now reviewing a Kansas case that could validate Ribnik's views.

Yet his new lawyers also contend that Resendiz is mentally ill, a well-established mitigating factor that can lead to reversal of death sentences.

That argument might never be heard by any court, because Ribnik did not include it in his original writ.

Will, during his trial, said a fellow car thief shot and killed Deputy Barrett Hill, an innocence claim that typically would be included in the habeas writ.

Ribnik, however, said his writ has every worthy issue found during an investigation that included extensive questioning of Will, his family and his trial attorneys.

"I wish I found somebody who can't live with himself and (confessed) in one of those Matlock or Perry Mason moments," Ribnik said. "Wishing don't make it so."

Ribnik said he hired no outside investigators or experts to review Will's case but denied that it indicates a lack of effort. He said his review of the trial record found that potentially mitigating evidence, including childhood sexual abuse, was adequately introduced and considered at trial.

"I will own up to my screw-ups; I'll take my lumps. I certainly deserve them in Resendiz," Ribnik said. As for Will, he said, "I think I did a good job on that one."

Find this article at:
http://www.statesman.com/news/content/news/stories/local/02/26appeal.html
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"It seems a little thin. I average filing around 400 to 450 pages on habeas writs, not including exhibits, which can be another 1,000 pages," Ellis said.

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And therein lies the problem -- when all cases get the "Ellis" treatment, regardless of merit, then the potentially valid cases get lost in the shuffle.

Well probably not quite in the terms of U.S. v. Cronic, but certainly persistent.

If our system is working properly, appeals should not have a high rate of reversal. Recognizing the fine line between simply non-meritorious and downright frivolous and the difficulties preparing an Ander's brief poses to the defense, it is frustrating to see what often appears to be a lack of any effort. In fact, I'm looking at a brief right now that the same attorney has had the same generic claim rejected at least ten times. As a taxpayer, it's a waste of county money (especially when they can probably bill the county more on a nonsense claim than on an Anders brief).

The problem is who can really monitor? The reviewing court would have a good sense, but if they censure attorneys except in the most egregious cases, they will chill bona fide litigation. The trial judge who makes the appointment and approves the bill is similarly in a tough spot to make the call: since that court's rulings are under attack, partiality could be called into question. Is the State Bar really interested in or even capable of monitoring quality control?

I�ve got no answers, but the problem has bothered me for years (as a prosecutor, and previously on the defense side and working for a court). Any thoughts?

Some would say the solution is a big public defender officer, funded by taxpayers. Are you ready for yet another beaurocracy? Do you believe it would improve representation?

There is an article in the March issue of the State Bar Journal that discusses how Texas deals with indigent representation. The biggest slice of the pie is by court appointment. The smallest slice of the pie is public defender offices.

I believe that creating an office of Appellate Public Defender in the larger counties would be of great benefit and provide a higher caliber of representation to solve some of these persistent problems.

Maybe if they did it by appellate distict, then both the small and large counties could benefit. I know that the availability of other appellate attorneys to bounce around issues is helpful. In fact, I've heard some of the defense attorneys who do try hard to raise good issues note that difficulty.

However, those attorneys that accept appellate appointments do have a large financial interest in the availability of appointments . . .

Oh please! We could debate all day who to best throw money at, but the REAL problem with the defense bar, and particularly with 11.07 and 11.071 representation, is lack of personal accountability within the defense bar. Regardless of length, the vast majority of writ applications rely on boilerplate or stock legal arguments, which generally are not even reviewable by way of the writ, because the attorneys who file them are lazy and see these boilerplate arguments as an easy way to make money. When writ attorneys make factual claims, they generally range from completely unsubstantiated to knowingly false. The only truly effective way to impact the quality of writ filings would be to sanction or ban attorneys from filing writs when they have repeatedly engaged in this practice. Good luck.
I think I have a broader than usual view of writ practice, since I practice around the state for prosecutors and also take defense appellate appointments in Dallas. I don't do capital defense, but I frequently get calls from family members of non-capital defendants I've represented on appointment on direct appeal offering to pay me to file a writ. I always explain writ practice and limitations to them, and generally recommend against filing a writ (since the vast majority have no legitimate basis for relief) but I know that the family will continue calling until they find a lawyer who will file a worthless application for an exorbitant fee, frequently in the 5-figure range, and generally financed with a parent or sibling's savings or second mortgage.
With writs, all roads lead to Austin, where all applications are eventually screened. If the CCA issued published opinions censuring attorneys who file worthless applications, perhaps the newspapers would have more interesting matters to report and attorneys would feel some pressure to file legitimate applications.

Sue, please stop hiding behind soft words and tell us how you really feel. Good grief, you sound like you are "12 miles to the right of Sharon Keller"!

(By the way, early voting for presiding judge of the CCA has begun. Check out the results of the State Bar poll on that race. Looks like there are a few more travelling to the right of Sharon Keller.)