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The Lottery for Good Counsel on Texas Death Row

Should having competent defense counsel be a matter of luck? After many failures by prior counsel, our client, who was recently released from Texas prison after serving nine years—four on death row—thought he won the lottery when our firm, Lewis Roca Rothgerber, took his case pro bono.

On Halloween 2005, Manuel Velez and his new girlfriend, Acela Moreno, were home with their children. That afternoon, Acela’s one-year-old child stopped breathing, was rushed to the hospital, and died. Both Manuel and Acela were arrested. Manuel was tried in October 2008. Manuel had been in Tennessee working for five weeks and returned to Brownsville just two weeks before the baby’s death. At trial, the State of Texas presented experts who testified that the injuries to the child occurred within 7 to 14 days of the baby’s death.

Manuel’s attorneys did not investigate or present any medical evidence or expert testimony in response. They also did not ask the State’s experts whether the injuries to the child could have occurred more than two weeks prior to death or challenge the State’s witnesses in any meaningful way. Manuel was convicted of capital murder and sentenced to death.

In the fall of 2008, our law firm and the Dallas firm Carrington, Coleman, Sloman, & Blumenthal, LLP, jointly volunteered to take a case through the American Bar Association Death Penalty Representation Project and were assigned Manuel’s case. Manuel is a 50-year-old construction worker who was born and raised in Brownsville, Texas. He is the father of two young boys. He does not speak English and is functionally illiterate in both Spanish and English. He dropped out of school in the seventh grade. He and his family are very poor. He has been minimally employed throughout his life—working odd jobs or as a day laborer.

From the moment we met Manuel, he professed his innocence. He also spoke with much frustration about the many bad lawyers who had come before us. His anger at them was palpable, even through the thick glass at the death row visiting window. He didn’t know what they did wrong, but he knew they had not listened to him and he did not trust them. More than anything, he knew that justice had not been served.

We thought, this is what everyone on death row says: “I didn’t do it” and “My lawyers were bad.” Over the course of our six-year representation, we learned that both of those statements were true.

We are commercial litigators in Colorado. We knew we had much to learn about representing a man on death row in his habeas corpus proceeding in Texas state court. We relied on capital counsel across the country to guide us and we dug in and adopted the motto: “Leave no stone unturned.” We read the record over and over and, for years, we investigated. We talked to his elementary school teachers, neighbors, family members, and the jurors from his trial. We pulled all kinds of records of his life from any and all sources. We met with Acela and with witnesses who had seen Acela abuse her children. We pored over the baby’s medical and pediatric records. We interviewed the State’s witnesses and medical experts.

We realized a major breakthrough in the case in 2011 when we contacted the neuropathologist who had analyzed the baby’s brain as part of the autopsy. He did not testify at the trial, but his report was included in the autopsy report. The doctor told us that no one had asked him about the time frame of the baby’s injuries. We asked him to do further analysis of the brain. After performing such an analysis, the doctor opined that one of the main injuries to the child was inflicted between 18 and 36 days prior to death—during the time Manuel was in Tennessee.

It was clear that the doctor’s analysis would have been devastating to the State’s case if it had been presented to the jury in 2008.

We also learned about Manuel’s former attorneys. Initially, in 2005, his family raised money and met with a private criminal defense attorney. They told him about the case but, in the end, he did not take the matter. That attorney later became the special prosecutor that tried the case against Manuel.

The family then hired another private attorney. After nearly two years on the case, and just before the matter was scheduled for trial in late 2007, that lawyer filed a “Motion to Preclude Death,” seeking to remove the death penalty as a sentencing option because he and his co-counsel were “not able to provide the effective assistance of counsel as [they] do not have the qualifications required by law.” The court disqualified and removed the lawyers from the case.

The Court appointed a new set of defense counsel, who represented Manuel at the trial in 2008. Manuel’s appointed counsel rarely visited him, did not ask him about what happened on the day the baby stopped breathing or about Acela, did not inform him of the case status or their work on the case, and did not consult with him about how his case should be handled. For three years, Manuel sat in prison thinking that it would all be okay after the trial. But it wasn’t. The State was going to execute him.

By the time we came along, Manuel was on death row. He didn’t trust us or like us, but he didn’t have anyone else to turn to. So we sat and listened. Our first meeting with him lasted nearly six hours. Then we returned, and we kept returning. We told him what we were doing—sometimes in excruciating detail. We walked him through our defenses, the holes in the State’s case, the failures of his trial counsel, the risks that we continued to face. We scribbled words he did not understand on legal pads and pressed them to the glass so he could copy them down. He did not understand us much of the time, but he came to know that we cared, that we were working hard on his behalf, and that we were not going to back down.

The meaning of this to someone on death row—knowing that someone is fighting for you—is indescribable.

After years of meetings, of listening, arguing, laughing, and crying, our client came to trust us. He came to know what lawyers can and should be—acting with their client’s interests in mind at all times. Throughout this case, we were struck by the human element of it all.

The act of listening to someone whom no one has ever listened to is a moving and profound experience.

By simply treating our client with respect—as someone with hobbies, values, opinions, and a variety of life experiences—he came to believe in us. We are forever grateful to Manuel for teaching us the power of treating someone with dignity.

We filed our habeas petition and had an evidentiary hearing in December 2012. The Court reversed Manuel’s conviction, but the State nevertheless insisted on retrying him. Just before his retrial, the State offered him a sentence of time served for a plea of injury to a child for recklessly failing to protect the child from Acela’s abuse. Manuel accepted the plea and was released on October 8, 2014. We were there to watch him walk out a free man.

The luck of the draw—that is what this was. We just happened to be given a case where the defendant was innocent. How many more might there be? And, how many people are on death row that had incompetent counsel at their trials? How many receive ineffective representation because they are poor or uneducated? This has to be less about luck and more about competent lawyers who care and zealous representation for every person. To those of you who defend the less fortunate every day with passion and dedication, we are grateful for the difficult and important work you do. We are fortunate in Colorado to have some of the best Public Defender and Alternate Defense Counsel systems in the country.

Manuel is now home with his family in Brownsville. He calls us from his new cell phone and tells us about his kids, his parents, and his new life. He says we are his angels and we tell him we are proud to know him.

To learn about volunteering to represent someone on death row, call the authors at 303-623-9000 or call the ABA Death Penalty Representation Project at 202-662-1738.

 

By Jaclyn Casey Brown and Tamara F. Goodlette. 

Brown_JC_HRJaclyn Casey Brown is a partner with Lewis Roca Rothgerber. Her practice is focused on commercial and complex civil litigation involving real estate and construction matters, eminent domain, contractual disputes and insurance. She can be reached at JCBrown@LRRLaw.com or 303-628-9537. 

Goodlette_T_HRTamara Goodlette is a partner with Lewis Roca Rothgerber. Her practice is focused on commercial and complex civil litigation with special emphasis on legal malpractice and litigation relating to insurance insolvency. She can be reached at TGoodlette@LRRLaw.com or 303-628-9518.

CategoriesPro Bono