Defending on death row
With 450 people on Texas death row and a record-breaking number of executions carried out last year, Texas courts are challenged in a way few others in the world are. The State of Texas has executed 242 people since it reinstated the death penalty in 1982, which according to the Texas Defender Service (a non-profit organization that provides direct representation to indigent Texas death row inmates,) is three times as many as the state that has the second highest number of executions, Virginia. If Texas was considered its own country, it would rank fifth in the world with executions. "The high number of death sentences draws some speculation about offender representation," says attorney Gregory Wiercioch. "An average of 40-50 new people arrive on death row each year, and approximately 64 percent are people of color, 40 percent are African-American, 22 percent are Hispanic, one percent are other and the remaining 36 percent are Caucasian," he said.Wiercioch, a middle-aged, soft-spoken man with sandy brown hair, has been working as a staff attorney for TDS since 1995. He says that the main problem facing death row offenders is their inability to afford competent representation. In most cases, they receive court-appointed lawyers who may not have the proper experience, he says.Wiercioch graduated from Washington and Lee School of Law in May of 1992. He worked until 1995 for the Texas Resource Center, which was one of over a dozen resource centers distributed throughout the nation. Congress previously funded these centers to assist in the representation of death row offenders in states that had large death row inmate populations. In 1995, the resource center was cut off from all federal funding and was forced to shut down.This past January, Wiercioch traveled to Huntsville, and stood outside the "Walls" Unit (where all Texas executions take place) holding an umbrella in the rain. Wiercioch was not up for conversation. He stood away from the crowd, waiting patiently and nervously for word that his client, 37-year-old Alvin Urial Goodwin, had taken his last breath.Goodwins execution marked Wierciochs second case in which the penalty was carried out."Our job is to provide quality representation. Our organization (TDS) charters that all death row inmates are entitled to quality representation at the trials and appeals phases, Wiercioch said. "The level of competence of capital punishment defenders in this state is astoundingly low; usually the next attorney on the list or the attorney who gave a donation to the judge is appointed to a case." TDS has dealt with cases where another suspect was never mentioned in the trial phase, mitigation witnesses who are not psychologically competent enough to take the stand, and jurors who talked to outside sources or brought in outside information. "We usually become involved at the post-conviction phase, and we go beyond the trial and look at the prosecution for favorable evidence, Wiercioch said. "A lot of times its an emergency situation where we step in and assist in the case of the offender. Weve been fairly successful for the most part; weve gotten last minute stays of execution. That, in turn, gives us the opportunity to further research the case." Part of the problem is that the state of Texas doesnt have an organized group of state-or federally-funded lawyers who work specifically on capital defense cases, experts say. "A lot of attorneys dont understand what their role is at the appeal and trial phases of a capital murder case; they dont do strong enough investigation," Wiercioch said. Some states, like New York, had success with capital defense programs, according to Wiercioch. In 1995, when the state of New York reinstated the death penalty, it also established a Capital Defender Office that is staffed by experienced attorneys who work specifically on capital defense cases. Currently in that state, there are less than five people on death row; most cases settle before trial.Since Texas does not have a sentence of life without the possibility of parole, some experts claim that the high rate of death penalty sentencing will continue. According to Wiercioch, often times jurors would rather give the death sentence than life in prison with the possibility of parole after 40 years. When a jury is making its decision whether to impose the death sentence they are forced to answer "yes" to three questions: Is there a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society? Did the defendant actually cause the death of the deceased? Was it the intent of the defendant to kill the deceased or anticipate that a human life would be taken? Finally, the jury must decide whether (taking into consideration all of the evidence, including the circumstances of the offense, the defendants character and background and the personal moral culpability of the defendant) there is sufficient mitigating circumstance or circumstances to warrant that a sentence of life imprisonment, rather than a death sentence, be imposed."A life without a parole sentence would reduce death penalty cases (in Texas)," Wiercioch says.In addition, most states require an individual with an IQ of 70 or below cannot be sentenced to death, but in Texas there is no law that prevents sentencing the mentally ill or mentally retarded, regardless of mental in capacity.In 1998, Wiercioch stepped in to assist in the representation of Emile Duhamel in the post trial phase. Duhamel, who had an IQ of 56, was convicted of the murder and sexual assault of a nine-year-old girl. In his trial, his attorney neglected to mention that Duhamel was mentally ill. "They must have realized that he had mental problems," Wiercioch said. "You couldnt talk to him without realizing that he had some form of mental illness. "If youre a defense attorney, and you know that there is something wrong, you ask for a mental evaluation by a professional, and you present the information in trial. You dont simply forget about it" Although Wiercioch was able to get a stay of execution for Duhamel in 1998, he died anyway. Duhamel suffered from heat exhaustion in July, after he could not survive the Texas summer temperatures of 112 degrees. The inmates did not receive any form of air conditioning at the Ellis Unit, where Duhamel died. "He (Duhamel) was so mentally ill that he didnt have the capacity to ask for help or say that he was in bad shape; he was found dead in his cell," Wiercioch said. A bill was passed in 1999 to take the decision of appointing defenders to inmates out of the hands of the judges. "That was the first step towards creating a public defense system. The judges were up in arms because they rely on campaign funds, and they rely on donations from lawyers," Wiercioch said. "But Bush (former Gov. George W. Bush) vetoed the bill, even though it had already passed."With a new governor (Rick Perry), it isnt clear how or if things will change. Perry is supportive of a bill to change Texas capital statute, so that life without the possibility of parole would be an option.However, Wiercioch is still skeptical. "I think were a long way away," Wiercioch said. There would have to be a radical overhaul, starting with some sort of centralized organization that would present expert representation at the trial level."Having elected judges in these cases is so controversial; a lot of it is the bottom line politics." Another problem is that 75-80 percent of the Texas population supports the death penalty, according to TDS. "A lot of times its hard to go against the grain, even if its the right thing to do," Wiercioch said.
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