Death Penalty

As execution looms, appellate lawyers fight client's effort to get new counsel and seek clemency

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Scheduled to be executed on Wednesday for setting a house fire that killed three children almost 15 years ago, a 36-year-old death row inmate in Texas has effectively been abandoned by his court-appointed appellate counsel, some observers say.

Raphael Deon Holiday sent letter after letter from prison seeking to find another attorney to help him in last-ditch appellate efforts, eventually persuading an adjunct law professor to file pro bono motions on his behalf, but his court-appointed lawyers opposed their client’s efforts to replace them, reports the Dallas Morning News (sub. req.)

Last week, the 5th U.S. Circuit Court of Appeals upheld federal district court denials, in September and October, of Holiday’s motions seeking the appointment of new counsel. The court said in a two-page Thursday opinion (PDF) that the district court did not abuse its discretion.

That 5th Circuit decision is now the subject of a Monday appeal to the U.S. Supreme Court by Gretchen Sween, an Austin attorney who teaches advocacy and writing courses at the University of Texas School of Law. She agreed less than a month ago to try to help Holiday find new counsel, but declined an offer by his appellate lawyers that she take over the case, since she lacks experience on death-penalty cases, the newspaper reports.

Apparently spurred by Sween’s involvement, Holiday’s lawyers have made a clemency petition she described as a “sham” in a 5th Circuit filing. It gives an incorrect execution date for Holiday; discusses the horrific crime for which he has been convicted in detail; and offers little persuasive information suggesting that Holiday should be spared, the Morning News says.

A June 30 letter from Holiday’s original appellate lawyers set his letter-writing campaign in motion, resulting in Sween’s involvement. In the letter to Holiday, which can be read on Scribd, attorney James W. Volberding tells Holiday that he and co-counsel will not be filing any further appeals for their client “because we do not believe any further appeals have any chance of success.” Likewise, Volberding writes, a petition for clemency to the governor of Texas “just gives an inmate false hope” since “he is not going to grant clemency in this case, or likely in any other death penalty case.”

Observers with expertise in death-penalty cases said federal law requires appellate counsel to make some effort to pursue available avenues that might save a client from execution, even when success may seem unlikely.

“There’s a difference between saying that’s not a viable strategy or viable claim and abandoning an entire proceeding altogether,” said law professor Jim Marcus of the University of Texas. “The latter is not really permissible under the statute.”

An August news story in the Item provides more details about the criminal case in which Holiday was convicted.

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