Last night, Texas executed one of my former clients, Robert Thompson, for a capital murder in which he was not the shooter. The shooter, Sammy Butler, although charged with capital murder, was convicted of a lesser and sentenced to life. He'll be eligible for parole in a couple of years and likely will be free someday.
The difference: their lawyers.
Butler was represented by Rocket Rosen. Thompson's lead counsel was terrible.
I was appointed to do the state application for writ of habeas corpus. When I looked into the background of his lawyer, I was shocked.
The man's license to practice law had been suspended three times before he was appointed to represent Thompson in December 1996. Two of the three suspensions were for messing up cases. One was for sharing legal fees with a non-lawyer. Two of the three suspensions were partially probated and the third fully probated.
The worst was the third suspension, in 1995 -- only a year before being appointed to represent Thompson -- was for messing up a court-appointed criminal case. A jury found professional misconduct and a district judge ordered his license suspended for 27 months (with the last 24 months probated).
What is truly amazing is that the judge who presided over the trial stayed enforcement of the three-month active suspension so that the lawyer could represent a defendant in a death penalty trial.
That defendant was luckier than Thompson. After the jury was picked, the District Attorney's Office agreed to let him plead guilty for a life sentence rather than face the death penalty.
That lawyer no longer is eligible to receive appointments in capital murder cases. But, the Harris County district judges have certified him to represent indigents charged with any other felonies, including those punishable by up to life in prison.
An argument can be made that Thompson richly deserved the death penalty. The murder for which he was executed was only the last in a string of convenience store robbery-murders he and Butler pulled. But, he shouldn't have died for this killing. He wasn't the triggerman and the triggerman did not face the death penalty because he had a great lawyer while Thompson had a poor one.
Butler's lawyer argued that Butler did not intend to kill the clerk he shot. Thompson's lawyer argued that he did not anticipate that there would be a killing even though Thompson shot another clerk four times, then tried to beat him to death with the cash register drawer.
The difference is sentences probably is why the Texas Board of Pardons and Paroles voted 5-2 to recommend that Gov. Rick Perry commute his sentence to life. Perry had done it before in a similar case in which the triggerman got life and the getaway driver got death. But, the governor chose instead to let Thompson die for a killing he did not commit while the killer is almost eligible for parole.
I have no moral problems with the death penalty in a proper case. I am sure that in some cases, if I were on a jury I could vote to sentence someone to death. But, if the State of Texas is going to kill people, they should have good lawyers not empty suits.
Society owes it to itself to ensure that people who face the ultimate punishment are properly represented.
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Welcome back Tom. Glad you didn't blame me, though I guess I bear some responsibility. Frankly I don't think the best lawyer in town could have gotten Thompson a different sentence. If I remember right, the biggest difference between the co-defendant's was that Butler fired once and it turned out fatal. That made felony murder a viable argument. Thompson's confession made any argument for a lessor impossible. We could have tried Thompson for another murder other than the one we did, however, we had a live witness in the case we tried and didn't foresee the Butler problem. I think from now on prosecutors are going to seriously consider the non-trigger man problem in their decision to seek death. We didn't think as much about it 13 years ago. Casey
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