Velez Hearing Wraps Up With Summations, Offers Lessons on Role of Counsel

Yesterday was the final day of the hearing in Brownsville, Texas, for ACLU client and former death-row prisoner Manuel Velez. Judge Elia Cornejo Lopez heard summations, requested the parties to prepare proposed findings for her consideration, and announced that a decision would come at a later date.

For me, the hearing confirmed a longstanding ACLU observation: our indigent clients’ fates often hang on an arbitrary fact completely outside the client’s control and separate from questions of guilt and culpability – the quality of appointed counsel.

The hearing highlighted the following facts: 1) The state charged Manuel with the capital murder of a child, who with his mother and siblings had lived with Manuel for only two weeks, based on a theory that the child was completely healthy and only started receiving injuries during the two weeks he lived with Manuel. 2) On minimal examination, the medical evidence presented a strong defense, undisputed in this hearing, that the child began suffering very serious injuries far outside of this two-week window. And, 3) defense counsel did not explore or present any of this evidence.

The final witness at Friday’s proceedings was one of the two attorneys who had represented Manuel at trial, who was called to explain his work in the case. The other attorney was lead counsel, much older and more experienced; but he had died about a year ago. The second-chair attorney confessed that he deferred to the decisions of the other attorney to neither obtain the aid of a forensic pathologist nor mount any defense concerning the age of the child’s injuries.

In a bizarre twist, the prosecutor on cross examination highlighted the defense attorney’s many failures to live up to the American Bar Association’s Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases – frequently upheld by the U.S. Supreme Court as the standard for evaluating counsel’s effectiveness. The prosecutor wanted the attorney to state whether he failed to meet those guidelines, or whether he was merely blaming his deceased co-counsel.

In somber tones, the attorney said that he bore his own responsibility to Manuel, and that he knew he had failed him. Asked by the judge what he would do differently if he had the chance, the attorney stated that it was clear to him that Manuel “is innocent.” He said he would hire Manuel’s habeas counsel, attorneys from the law firms Carrington Coleman and Rothgerber, Johnson, and Lyons, who would clearly obtain a different result.

As habeas counsel Greg Kanan stated in today’s summations, “There was a gross failure here by defense counsel and it must be remedied by a new trial.”

That is the just result we hope to see.

In a system that allows for defense lawyers who fall short of constitutionally minimal standards and leads to the execution of innocent people, the death penalty cannot rationally stand.

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