When Lawyers Jump the Shark

I'm glad I'm not convicted murderer Hector Rolando Medina or his victim or his former habeas lawyer Robin Norris. Norris took the idea of being a maverick a little too far when he waited until the last day to file a habeas proceeding and failed to plead any factual basis for relief.The Court of Criminal Appeals, in a scathing opinion, ex parte Hector Rolando Medina, No. WR-75,835-01 held him in contempt, writing:

"Because counsel waited until the last possible day to file this document, a dismissal, even though not on the merits, would foreclose the opportunity to file a new pleading, bringing those same claims. Similarly, a denial on the merits of the conclusory allegations would foreclose any opportunity to raise those same claims again. By all appearances, counsel has thrown his client under the bus. Therefore, we issued an order to counsel to appear before the Court on Wednesday, June 15, 2011, to explain his conduct....

"Mr. Norris duly appeared and began his explanation: "Since I did file a pleading designated as a writ of habeas corpus on time-I think perhaps that the Court regarded it as not being a writ of habeas corpus." Indeed, that is so. However, Mr. Norris maintained that he had a "good faith" belief that his document "sufficiently pleads cognizable grounds for habeas corpus relief" even though he did not set out specific facts to support his legal allegations. He agreed that "[t]he suggestion that I want to change the law is close to being right, at least in my view. But not exactly right. I'm not trying to change the law. I'm trying to get some law." He admitted that he had "frequently" discussed the situation with his client "[a]nd he's not happy about it. But he's a lay person." Mr. Norris maintained that it is "in the best interests of [his] client, Mr. Medina, and similarly situated death-row inmates not to plead evidence in briefing in the initial application because it promotes disposition without evidentiary hearings." He largely agreed that he did not want to plead facts that might support his allegations because he did not want the State to know what his evidence was.

"Mr. Norris stated that he had been a practicing lawyer in Texas for some thirty-five years, had worked for a number of years at this Court, and had represented somewhere between ten and twenty death-row inmates on their post-conviction habeas-corpus applications. He admitted that, prior to this case, he had always included exhibits and stated facts that would support his legal contentions, but he did not do so in this case because he did not think the law was settled that a habeas application must contain facts. He stated that he had thoroughly investigated the facts underlying his claims, but that he intentionally did not include them in his client's pleading, and that he intentionally filed his pleading on the last possible day and refused the State's offer to give him more time to replead and add those crucial facts. It is abundantly clear that counsel's actions were not the result of mistake, inadvertence, negligence, or a lack of legal expertise. It is also abundantly clear that counsel is intentionally jeopardizing applicant's "one very well represented run at a habeas corpus proceeding."

In ex parte Kerr, (29) we held that a death-penalty "writ application" that did not "challenge the validity of the underlying judgment" was no writ application at all. The rule in Kerr is as follows: "To constitute a document worthy of the title 'writ application' filed pursuant to article 11.071, the writ must seek 'relief from a judgment imposing a penalty of death.' A death penalty 'writ' that does not challenge the validity of the underlying judgment and which, even if meritorious, would not result in immediate relief from his capital-murder conviction or death sentence, is not an 'initial application' for purposes of art. 11.071, § 5 . . . ." (31) As Judge Overstreet stated in his dissent to the dismissal of a stay of execution for Ricky Kerr, such a "non-application" is a farce and travesty of applicant's legal right to apply for habeas relief. It appears that this Court, in approving such a charade, is punishing applicant, rewarding the State, and perhaps even encouraging other attorneys to file perfunctory "non-applications." Such a "non-application" certainly makes it easier on everyone--no need for the attorney, the State, or this Court to consider any potential challenges to anything that happened at trial. Nevertheless, the Legislature has provided convicted capital defendants with the right to make such challenges by habeas corpus application."

Wow - to be charged by the top criminal court in the state of perpetrating a farce and travesty and charade when a person's life is at stake is brutal, but it's accurate. Norris was playing Russian roulette with his client's life. You have to wonder if the lawyer has dementia, traumatic brain damage, or is addled from drug abuse.