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Maro Robbins
Express-News Staff Writer
Texas is
scheduled to execute a convict today
whose lawyer filed an appeal with
incoherent repetitions, rambling
arguments and language clearly lifted
from one of his previous cases, so that
at one point it described the wrong
crime.
While
inmate Justin Chaz Fuller's last hope
for a temporary reprieve now waits on
the U.S. Supreme Court and the governor,
his case is being cited as an example of
the state's failure to adequately
examine death penalty convictions.
The same
lawyer, in another pending capital case,
apparently copied his client's letters
so that, instead of citing legal cases,
the filed documents echo the inmate's
unintelligible arguments, flawed grammar
and even his complaint that he was about
to run out of paper. For his work in
these two appeals, the state paid the
attorney Toby C.Wilkinson of Greenville
about $18,000 in each case, for a total
of $36,514. Wilkinson did not
return repeated calls.
State
law requires that death row inmates
receive "competent counsel" for their
post-conviction challenges known as
applications for writ of habeas corpus.
In May 2001, the state's highest
criminal court tapped Wilkinson to work
for Fuller, a Dallas native convicted of
killing a 21-year-old man, Donald
Whittington III.
At first
glance, Wilkinson's 111-page motion
appears unremarkable. But by Page 3, it
starts quoting long passages from trial
testimony without clearly explaining
their relevance. Page 5 spends half a
page repeating the exact passages quoted
a page earlier. A similar repetition
follows on Page 6.
The
numbering of arguments doesn't maintain
a logical sequence. Typos obscure some
quotes, as in, "i &tilde hus, we diseeni
no ab &tilde tse of discretion in th i
&tilde coult &tilde s denial."
Perhaps
most striking, the pleadings for Fuller
copied wording from an appeal Wilkinson
filed for a different client, Henry Earl
Dunn, in an unrelated case. As a result,
it complains about testing for blood on
a gun used by Dunn's co-defendant seven
years earlier. Wilkinson's brief
"should have been submitted on a Big
Chief Tablet using an eight-count box of
Crayolas," Don Bailey, the lawyer who
replaced Wilkinson when Fuller's appeal
was denied, wrote in a subsequent
appeal.
Since
then, Bailey has argued unsuccessfully
that Fuller did not shoot Whittington in
1997 and should have received at most a
life sentence like his co-defendants.
Edward Marty, formerly an assistant
district attorney in Smith County, said
he recalled being disturbed by the
quality of the legal brief and taking
his concern to the trial judge. Any
confusion in Wilkinson's pleadings was
remedied at a subsequent hearing, said
Marty, now general counsel for the Texas
Court of Criminal Appeals.
"He was
then given an opportunity at a ...
hearing to make up any differences and
clear up any thing he wanted to," said
Marty, whose office conducts preliminary
reviews of most death penalty appeals.
Since he left the DA's office, he has
not been involved in Fuller's case.
About
three years after filing Fuller's claim,
Wilkinson was chosen by a Hopkins County
district judge to file a similar habeas
petition on behalf of Daniel Clate
Acker. Wilkinson's legal brief spends
13 pages naming seemingly every document
filed in the case. It then makes five
claims that are almost word-for-word
identical to claims in Fuller's case.
The next 24 pages seem copied from his
client's letters, so that they seldom if
ever cite case law and occasionally
lapse into first-person narrative.
Claim
No. 36 concludes: "I'm just about out of
carbon paper so before I run out I want
to try and list everything that was
added to and took from me to convict me
on the next page then as soon as I get
some more typing supplies I have about
thirty more errors I want to tell you
about and have brought up in my appeal."
Acker's
appeal is still pending. Braced for
rejection, the inmate apparently sought
a California lawyer to represent him
when the case moves to federal court.
"It's like nothing I've ever seen
before," the attorney, A. Richard Ellis
of Mill Valley, Calif., said of the
petition filed by Wilkinson.
The
court of criminal appeals decides which
lawyers can handle death penalty
appeals. Presiding Judge Sharon Keller
said she couldn't comment on individual
cases, but the court's staff carefully
screens attorneys. Then it relies on
trial judges to appoint tried-and-tested
counsel.
"If we
thought somebody should be taken off the
list because he's not doing a good job,
we'd take him off the list," she said,
"or we'd consider taking him off the
list."
Wilkinson isn't known to have been given
any more death penalty work since 2003,
but his name is still on the list. And
though the count might shrink by day's
end, six of his clients are still on
death row. |
