Thursday, November 19, 2015

For Your Own Good - UPDATE

Perhaps they meant well.

But the road to hell is, you'll recall, paved with good intentions.

And seriously.  I mean, I want to put this as gently as I can.
OK, I'm better now.

It's sort of about this guy.

He's Raphael Holiday.  And he was murdered by the people of the Lone Star State last night.  That's not exactly shocking.  Texas had, after all, murdered 530 people before last night, way more than any of the other states. And Holiday was convicted of a pretty ugly crime.  Brandi Grissom for the Dallas Morning News.
Holiday was convicted of intentionally setting fire to his wife’s home near College Station in September 2000, killing her three little girls. He forced the children’s grandmother to douse the home in gasoline. After igniting the fumes, Holiday watched from outside as flames engulfed the couch where authorities later found the corpses of 7-year-old Tierra Lynch, 5-year-old Jasmine DuPaul and 1-year-old Justice Holiday huddled together.
That's pretty cold-blooded. And it's Texas.  So. . . .

Except that's not the story.  Nor is the story that a judge this afternoon stopped the execution and then a panel of appeals judges out it back on track.

No, the story isn't really about Holiday at all.  Nor about his execution.  Instead, the story is about James “Wes” Volberding and Seth Kretzer.  They're the lawyers who ostensibly represented Holiday.  And thereby hangs the tale.

In 2011, Volberding and Kretzer were appointed by a federal judge to represent Holiday.  And they did.  They investigated, they briefed.
They filed a 286-page petition in federal court, alleging dozens of mistakes in Holiday’s case, ranging from assertions that he was intellectually disabled to charges that clemency is so rarely granted in Texas that the process has become meaningless.
And of course they lost.  At the end of June, the berobed ones in D.C. refused to hear the case.

That's usually what happens.  And it ends what you might usefully think of as standard process.  It's the last of the ordinary litigation.  From here on, the lawyer's job is to be creative.  Investigate again. Search for the really unlikely.  Float whatever.  And put together the clemency pitch.  Because, as we say in this business, once in a while pigs do fly.  And because what the hell.  


Wes Voldering sent Holiday a letter.  Explaining that he and Kretzer were done.  Feel free, he said, to use your resources to find a free lawyer to do emergency last stage work for you. Ain't gonna be us.
The 11/2-page message informed Holiday that his lawyers would not file additional appeals or seek clemency from the governor. Neither option, Volberding wrote, presented a real chance of sparing Holiday’s life.
So Holiday wrote letter after letter to death penalty lawyers begging for help.  Nada. Nothing. Zip. Not, I think, because they were uncaring or unwilling but because what he was asking was simply more than they could take on.  Because no matter how dedicated one is, there are still only 168 hours in a week.

Holiday wrote the federal court asking to have Voldering and Kretzer removed and new counsel appointed.  Which his lawyers, who you'll recall had decided not to pursue any more relief for him, opposed.  They weren't cold hearted.  The "political realities" were what they are.  
The two contend they are exercising professional judgment and doing what’s best for their client.
“We decided that it was inappropriate to file [a petition for clemency] and give false hope to a poor man on death row expecting clemency that we knew was never going to come,” Volberding said in a telephone interview.
They wouldn't want Holiday to have false hope.  It was, after all, for his own good.  To help him go gentle into that good night.  

Gretchen Sween, appellate lawyer but not a death penalty lawyer jumped in to help Holiday.  Not to file new appeals or a clemency petition.  She was, she said, not competent to do that.  But to help him get new counsel.  No, said the courts.  No, no, no.  And don't come back.

Voldering and Kretzer told Sween to stay the hell away from their client.  But grudgingly filed a clemency petition in which they laid out just how horrible Holiday's crime was.  And got his execution date wrong.

Sween called it a sham.  The courts didn't care.

Last night, as I said, Holiday was killed.

There are some bottom lines to this business.  One is that while lawyers choose the tactics, the clients choose the ends.  We don't get to decide what's in our client's basic interest if it isn't what he wants. We can decide not to take a case, but once we've signed on, once we've taken the appointment, unless it's specifically limited in scope, we don't get to just walk away.  And we especially don't get to say, Well, I know you want me to do whatever might save your life, but you'll be happier not having your hopes dashed yet again. 
There's room to argue about how we do what we do.  There's really no room to argue about whether we do it. 

Raphael Holiday. R.I.P. 

UPDATE: See Scott Greenfield, Raphael Holiday's False Hope