Harris County, Texas, has executed more people than anywhere else in the country. In most Harris County cases ending in a death sentence over the previous 20 years, defense lawyers failed to find and present compelling evidence that could have kept their clients off of death row, according to a two-part report published on Monday by the Wren Collective, a group of former public defenders who do criminal justice research and policy.
The report authors reviewed 28 cases, which accounts for the vast majority of Harris County cases that resulted in a death sentence over the past two decades. The authors excluded a handful of cases in which post-conviction litigation, which provides insight into what occurred at trial, had either not been filed at the time of review or contained insufficient detail about trial proceedings. They reviewed court filings, jail visit records, billing records and interviewed judges, trial and post-conviction lawyers and mitigation specialists.
In each of those cases, the report authors found that trial attorneys missed important evidence that could have convinced a prosecutor to drop a death sentence or a juror to choose a life sentence, including evidence of mental illness, intellectual disability, physical abuse and sexual abuse. In many cases, attorneys failed to prepare key witnesses until the day they were scheduled to testify.
“The stakes of capital murder cases could not possibly be higher, and yet for decades, people have gone to death row with serious intellectual disability claims and lengthy histories of severe physical and sexual abuse,” said Wren Collective founder Jessica Brand, who has previously worked at the Texas Defender Service. “It is not because juries did not believe their stories — it’s because they never heard them.”
The cause, according to the report, is Harris County’s indigent defense system for capital cases, in which the trial judge appoints defense lawyers and approves lawyers’ requests for experts and investigators. According to the report, this creates “an inherent conflict of interest,” where lawyers may feel pressure to rush a case or request insufficient resources to remain in a judge’s good graces. Because these private lawyers are paid hourly rather than on a salary, they have an incentive to maintain caseloads that far exceed recommended guidelines.
“The system is utterly broken,” the report authors wrote. “The problem is structural, and so the structure must change.”
It is a common misconception that the death penalty is reserved for the worst-of-the-worst offenders. In reality, most people on death row endured horrific abuse and poverty and struggled with addiction, untreated mental illness or an intellectual disability. People of color are disproportionately sentenced to death; in the 28 cases the Wren Collective reviewed, 17 people are Black, and eight are Latinx.
Sixty years ago, the Supreme Court issued a landmark ruling that ultimately provided guaranteed legal representation to anyone facing imprisonment. “Nowhere is that right more important than in a capital murder case, where the potential sentence is death and where almost every person in this country who is charged with a capital crime is poor,” the Wren Collective report said. “That right, however, has been elusive in death penalty cases in Harris County, Texas, the death penalty capital of the nation and the world.”
In a death penalty case, a defense lawyer’s job can be twofold. Their first task is to try to convince a jury of their client’s innocence — but if that fails, their job is to convince jurors that their client doesn’t deserve to be killed as punishment. Effective defense lawyers do this by presenting mitigating evidence to help the jury understand the defendant’s life history and why they would commit a violent crime.
Mitigation investigation is difficult and time-consuming work. “Casual observers might believe that a person facing a death sentence will simply reveal to their lawyer every deep, dark, and painful thing that ever happened to them, as will their family members, but the opposite is generally true,” the report noted. “It is rare that people will be so forthcoming with an attorney who is at first a stranger and whose background is generally nothing like the person they are representing, no matter the stakes at trial. The only way to gain this information is to earn the client and family’s trust. Doing so requires time, patience, kindness, and work.”
There has been media coverage of Harris County’s indigent defense system for capital cases, including an investigation earlier this year in HuffPost. The goal of this report, the authors said, was to investigate “whether these stories were isolated examples of flawed representation or whether the representation reflected problems that exist throughout the system of capital defense.”
Detailed summaries of the 28 cases the Wren Collective investigated suggest the latter.
In case after case, the Wren Collective report describes harrowing circumstances in the defendants’ lives that may have influenced jurors to spare their lives, had the information been presented at trial.
In the case of Christopher Jackson, who was sentenced to death in 2007 for committing a murder during a carjacking, jurors did not know that he was sexually abused as a young child and regularly beaten by his grandmother until he passed out, the report said.
Defense lawyers for Jeffery Prevost, who was sentenced to death in 2014 for killing his girlfriend and her son, told jurors he grew up in a mostly loving and happy home. In fact, he was sexually assaulted for years during his childhood, and his mother pulled a gun on him multiple times.
Years after Roosevelt Smith was sentenced to death in 2007 for murder and robbery, an expert for the prosecution determined during post-conviction proceedings that Smith had an intellectual disability. People with intellectual disabilities are ineligible for the death penalty, and his sentence was thrown out.
The examples go on and on.
Wren Collective report authors also obtained jail visit logs for 21 of the 28 cases they analyzed. In four cases, the defendant received no legal visits, and in five cases, the defendant received between one and five legal visits.
The Texas Indigent Defense Commission started tracking yearly caseloads for appointed defense attorneys in 2014. Since then, only two lawyers in the cases analyzed by the Wren Collective had court appointments that fell within the workload range recommended in a recent Rand Corporation study by national experts.
“Some might be skeptical of our findings outlining systemic problems in representation because no appellate court has found these lawyers deficient and ineffective during postconviction litigation,” the report acknowledged. “But the criminal legal system has a vested interest in preserving the status quo by protecting convictions and the trial lawyers who are necessary to make the system work.” Indeed, a 2018 study of 191 post-conviction death penalty cases in Harris County found that judges adopted prosecutors’ findings verbatim in 96% of cases.
The link between high caseloads and poor outcomes for clients is well-documented. But Harris County has yet to place restrictions on how many cases appointed death penalty attorneys can take at a time. Of the 40 lawyers paid for capital appointments in Harris County in 2022, 12 had at least 100 cases — and one had nearly 500 cases. Of those 40 lawyers, more than half made more than $200,000 in 2022, representing people too poor to afford to hire a lawyer. Three made more than half a million dollars.
For comparison, Texas’ Regional Public Defender for Capital Cases, which handles death penalty cases across rural Texas, caps their attorneys at around five cases. In the Harris County Public Defender’s office (which does not take capital cases), public defenders earn an average yearly salary of $115,000.
Texas has long had an “anti-public defender culture,” Jim Marcus, a clinical professor at the University of Texas School of Law, told HuffPost earlier this year. The county didn’t even have a public defender because of resistance from Harris County judges and politicians until 2010. Even today, the public defender’s office in Harris County is not funded to take death penalty cases and only handles about 20% of felony cases.
The Wren Collective report recommended Harris County end its current practice of judges appointing private defense lawyers in death penalty cases and instead invest in a capital defender office that operates independently from judicial influence. The report noted that several studies have found public defenders outperformed appointed lawyers in death penalty cases. A key benefit of public defender offices is that they typically employ mitigation specialists and investigators trained to work on capital cases. Rather than requesting money to hire a mitigation specialist at an hourly rate for each case, public defenders can immediately work with their mitigation colleagues at the outset of the case.
“We recognize that our recommendation, if adopted, will mean a massive change in Harris County,” the report authors wrote, but the alternative is “untenable.”
The report concluded, “The county cannot keep sending people to death row simply because their lawyer has not done the hard work of defending them. Without making a radical change to the system of representation, that is exactly what will occur.”