Having a law license and a pulse is not enough
What are 500 lawyers at the bottom of the sea ?
A good start.”
(INFAMOUS LAWYER JOKE)
Had Gerald Marshall’s lawyers only been “at the bottom of the sea”. At least their presence would not have given the false impression, that they were doing anything to actually defend their client.
The CCA’s standard
Remarkably one CCA (Court of Criminal Appeals) judge once commented, that all it takes to make it on the court’s list of attorney’s approved for appointment is a “law license and a pulse”. Yet the ironic fact remains, that for quite some while a dead person has been on that list of approved attorneys.
The cliché, that poor people typically get bad and/or overworked court appointed lawyers is as old as it is sadly true. And in capital cases this tends to have deadly consequences.
Gerald Marshall’s lawyers were terrible from the start. On May 15, 2003, the trial court appointed Marshall “Mack” Arnold, an old, hard-of-hearing man as lead counsel and nearly nine months later appointed J. Sidney “Sid” Crowley as second chair counsel.
Doing nothing and getting paid for it
When representing Gerald Marshall, Arnold was assigned to two simultaneous death-penalty cases and struggling to keep up. He arguably overextended himself and failed to perform even the most basic duties of a defender. Second-chair counsel Crowley had a history of deficient performance in capital murder cases and even was sanctioned by the State Bar for multiple violations of the rules of conduct. In 2005 a trial court removed Crowley from a death penalty case noting that “no work has been done on this case in which a man’s life is at stake”. Sadly in Gerald Marshall’s case no court yet noticed the very same fact.
The list of Gerald Marshall’s attorneys failures is so long and revelatory, that if you flip it around, it becomes obvious, that a convincing case for Gerald’s innocence could have been made, if only his lawyers had bothered to fulfill a minimum of their legal obligations.
A recipe for a wrongful conviction
The following list is by no means exhaustive:
- None of the attorneys made an opening statement at the guilt-innocence phase of the trial, forcing the jury to piece together the evidence on their own and missing the chance to deliver a convincing theory opposing the state’s version of events.
- They did not follow the most important lead of the case, the bloody clothing that Worthy had made his girlfriend dispose of. Nobody interviewed Worthy’s girlfriend.
- They did not investigate the crime stoppers tip naming “Bo” as the shooter.
- During the trial it became apparent, that the lawyers had not even read large portions of the file or listened to the statements given by witnesses and co-defendants.
- They did not interview nor call important witnesses to testify and failed to prepare the few existing witnesses for the trial.
- They failed to challenge the eyewitness identification, so that Marsh’s unreliable statements went largely unchallenged.
- They failed to impeach the State’s jailhouse snitch (Green) and failed to impeach co-defendant Calliham and his documented lies.
- They did not present significant evidence that Gerald was not the shooter (like the clean clothes).
- They did not request DNA–testing for biological evidence found in the vehicle, that could have exonerated Gerald.
- They failed to timely retain and prepare their own mitigation expert, Dr. Carmen Petzold, who later gave an affidavit that with proper preparation she would have concluded, that Gerald suffers from longstanding and severe childhood trauma and that he poses no future danger resulting most likely in a life- instead of a death sentence.
- They failed to hire a forensic expert, who would have explained that due to the blood spatter the shooter must have gotten some blood on his clothing.
The list of failures and defective counsel continues through Gerald’s appeals.
Among them for example Gerome Godinich, who was chastised in 2009 by the 5th Circuit court of appeals for repeatedly failing to meet federal death penalty deadlines, and who has represented an average of 360 felony clients per year in Harris County — a caseload that surpasses every other attorney in similar cases.
A deadly system
The appointing of insufficient lawyers is not an arbitrary incident. It is a rather systemic failure of the responsible courts, especially the CCA:
With the 1995 enactment of Article 11.071, the Texas Legislature promised indigent death row defendants “competent” counsel. The reality entirely fails to live up to that promise.
The CCA recently decided that Article 11.071 provides no remedy for death row inmates, who do not actually receive competent counsel. In an absurd and circular reasoning the CCA stated that it will not measure the competence of an attorney according to what the attorney actually does but rather simply on weather the attorney has been placed on the list of those eligible for appointment.