Trying to Restore Integrity to Death Row Defense

Brad Levenson, a deputy federal public defender in California, will lead the first ever Texas Office of Capital Writs starting Sept. 1. His new job will require him to represent Texas death row inmates who claim their trials were botched and that they were wrongly convicted.

Texas lawmakers created the office in 2009 after a series of investigative reports and studies of the criminal justice system revealed serious problems with the quality of legal representation for indigent defendants on death row. Some of the lawyers whom judges had appointed to represent capital defendants had no death row experience, some had mental illness, some had abandoned their death row clients, and some of the lawyers chosen by judges were dead.

So lawmakers created the Office of Capital Writs to provide better representation for people on death row who can't afford to pay their own lawyers to challenge their sentences. Levenson, who has extensive experience with post-conviction cases in California, has only tried one such case in Texas, which has the busiest death row in the nation. And even before he's opened his office, he must deal with a 5 percent budget cut. He'll have to hire about 10 staffers and work about a dozen cases a year with $991,000, down from what was supposed to be a $1 million budget. But Levenson said he's up for the challenge.

Levenson said Texas wasn't even on his radar screen until 2008, when his office was asked to represent Texas death row inmate Clinton Lee Young. He was convicted of murdering two Texas men in 2001, and a Midland jury sentenced him to death. But Young and his lawyers claim the prosecution withheld evidence at trial that could have helped him, and last year the Texas Court of Criminal Appeals sent his case back to the trial court. Working on that case — and traveling in the Lone Star State — piqued Levenson's interest.  

 

When Texas started looking for someone to lead its new Office of Capital Writs, Levenson said he jumped at the opportunity.

His experiences in Texas and California with death penalty cases have taught him that there isn't much difference in how the cases work, Levenson said. The big challenge in Texas, though, is the pace at which the cases move through the courts. Lawyers have just 180 days in Texas to file post-conviction cases. In California, they can take up to three years, which means defendants can languish in jail over their appeals until they are elderly or even dead.

But Levenson said his experience as a federal prosecutor and litigator means he'll be ready and able to file cases quickly. And his 11 years as a deputy attorney general in California, he said, also gives him an advantage in the new job. 

Lawmakers initially set up the Office of Capital Writs with a $1 million budget to take on about a dozen cases per year. But just like every other state agency, the new one is also taking a 5 percent budget hit, and could likely face more cuts come next session when lawmakers wrangle with a projected $18 billion budget shortfall. 

 

Levenson said his hope in leading the new office is to make its work a model for other state indigent defense programs and to serve as a resource for others in Texas representing death row defendants. 

Though he declined to criticize the work of previous lawyers whose shoddy representation led to the creation of his new job, Levenson said that if he does his job well, Texans should have more confidence that the death penalty is being fairly implemented. 

In the end, Levenson said, his goal is to provide indigent death row inmates with the same quality representation they would have from a high-powered private firm with boundless money and resources. 

Though he's still living in California right now, Levenson said he will be in Texas before Sept. 1 to launch the new office. When he does move here, he will find himself among a minority in the state who oppose the death penalty. 

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