Posted on
November 21, 2009 in
In “An embarrassment to Texas justice,” Houston criminal-defense lawyer Tom Moran writes about the case of his client Robert Thompson, executed the night before last after Texas Governor Rick Perry refused to commute his sentence despite the recommendation of the Texas Board of Pardons and Paroles, for a capital murder in which he was not the shooter, and in which the shooter was sentenced to life with the possibility of parole.
The difference between Thompson and his codefendant, writes Tom:
their lawyers.
Butler was represented by Rocket Rosen. Thompson’s lead counsel was terrible.
I was appointed to do the state application for writ of habeas corpus. When I looked into the background of his lawyer, I was shocked.
The man’s license to practice law had been suspended three times before he was appointed to represent Thompson in December 1996. Two of the three suspensions were for messing up cases. One was for sharing legal fees with a non-lawyer. Two of the three suspensions were partially probated and the third fully probated.
The worst was the third suspension, in 1995 — only a year before being appointed to represent Thompson — was for messing up a court-appointed criminal case. A jury found professional misconduct and a district judge ordered his license suspended for 27 months (with the last 24 months probated).
Who was this “terrible” lawyer who made the difference to Robert Thompson between life and death? From reading Tom’s post, we wouldn’t know.
Is it that Tom is speaking no evil of the dead? No, he tells us that “the Harris County district judges have certified [Thompson’s trial counsel] to represent indigents charged with any other felonies, including those punishable by up to life in prison.” So the lawyer is still working, still representing people in criminal cases.
“Society owes it to itself,” writes Tom, “to ensure that people who face the ultimate punishment are properly represented.” But outside a very small circle of people, society has no idea who represented Robert Thompson.
I don’t fault Tom—having done all he could to save Robert Thompson’s life, Tom doesn’t owe society anything with respect to Mr. Thompson’s case. Lawyers have been historically reluctant to blow the whistle on each other publicly. (Besides, it’s been more than a decade since the terrible lawyer’s license was suspended, and he may not be a terrible lawyer anymore, though Tom’s evocation of the lawyer’s current appointment-certification status doesn’t suggest that this is his view.)
But I wonder: might the impulse that keeps Tom from naming this terrible lawyer contribute to the problem of unqualified lawyers representing people facing the ultimate punishment?
If lawyers were more willing to name-and-shame the worst among us, might society be better able to ensure that those people (as well as everyone else) are properly represented?
If, in the dark days of 1996, lawyers had been willing to speak up publicly about terrible lawyers like the one who wound up representing Mr. Thompson, might Judge Lupe Salinas have been shamed into appointing someone less shady?
And if so, might Robert Thompson be alive today?
I’ve struggled for a couple of years with a variation of this question. I write a weekly (more or less) summary of criminal decisions from our local intermediate appellate court that goes out to members of the local and state criminal defense lawyers associations. Among other things, I identify the lawyers who represented the defendant in the court of appeals. Just some small recognition.
Yet when the lawyers file Anders briefs, I don’t name them. A couple of years ago, I announced that I was going to change that practice, but so many people (good lawyers who don’t file Anders briefs) urged me not to that I withdrew the announcement.
The truth is that the lawyers who mostly file Anders briefs don’t belong to the organizations anyway and wouldn’t know that they’re being called out. But I was and am torn.
I notice that you didn’t name the lawyer, either.
Jeff,
I don’t know anything about the lawyer or the case, except what Tom has told me. It’s not my place, if Tom doesn’t want to name the lawyer, to say, “this is who Tom is talking about: . . . “
If a State is going to put a citizen’s life in jeopardy in a criminal trial, then that citizen should receive qualified and competent counsel. Full stop.
My only experience is in the military justice system, but in that arena, a defense counsel couldn’t sniff a capital case representation unless she had been certified at a death penalty litigation course and was known and respected as an excellent defense counsel.
Texans deserve no less–
That’s interesting. My experience is limited to the medical profession in Ontario (Canada); the provincial licensing body here (College of Physicians and Surgeons of Ontario — CPSO) publishes information (including name) in their monthly journal about members who have been reprimanded. The registration information for that particular member (publicly available on their website) is updated to reflect remedial actions taken and restrictions placed on his/her practice.
“If lawyers were more willing to name-and-shame the worst among us, might society be better able to ensure that those people (as well as everyone else) are properly represented?”
It seems that another benefit would be the improvement of the profession’s reputation — a willingness to identify and rein in bad seeds would go a ways toward improving the public’s confidence in the profession’s ability to self-regulate. Unnamed unknown members being punished? Not so much.
The cynic in me believes that the biggest difference between regulating doctors and lawyers is that doctors are unlikely to be crafting their own regulations.
Howard,
Much disciplinary action against lawyers is non-public. To be disciplined publicly, a lawyer has to really screw something up, or screw up more than once.
I think you’re probably right about the benefit of public identification of erring lawyers.
Mark.
Thompson’s trial case number was 740416. Anyone with a morbid curiosity to find out his lawyer’s name at trial can look it up on JIMS.
Someone looking it up would see the names of two lawyers at trial, and wouldn’t necessarily know which one TOm was referring to.