April
2003 - Farley C. Matchett -999060
Summary
of Arguments
A.
My Personal Situation:
As a direct result of the acts of incompetent counsel, I have not
had the opportunity to present the crucial issues of my case to the court.
The only way to reinstate the issues left out of my state habeas is
for the 5th circuit to return my case to the state level for
another habeas proceeding. I
am asking for your help in facilitating this process on my behalf, as it is
the only hope that I have to avoid execution. I
believe that I am entitled to a new trial for the following reasons:
1.
My original court appointed lawyer was incompetent.
His errors in the handling of my case included the following:
-
His
having me plea to a judge, not a jury, which was grounds for a new trial
on direct appeal, is further evidence of the incompetence of my
representation.
2.
I was cited for Abuse of Writ as the result of actions by a second
incompetent court appointed lawyer:
-
Before
my lawyer was able to file his thorough writ, the court-appointed lawyer
filed a 5 page writ by e-mail from the Netherlands, without having
researched my case. Three of
the five issues that he presented in this writ were not cognizable under
state habeas laws and therefore his work does not even constitute a writ.
B.
The need for a moratorium on the
death penalty:
A moratorium on executions must be declared by ⅔ of the Texas
Legislation, and two laws which hinder the due process intended by
lawmakers for death row inmates must be repealed.
Overwhelming evidence that the system is not working includes, but
is not limited to, the following:
-
Misuse
of funds which have been set-aside by law-makers for inmates’ defense,
for expert witnesses, psychologists, investigators and mitigation
experts. Funds have been
denied to inmates and returned to the state, constituting a hindrance of
justice.
Supporting
Details and References
I
believe that the priorities of the C.C.A. are driven by a pro-prosecutorial
perspective, and now being addressed by a “sweep it under the rug”
method. This is costing
inmates their lives, and could cost me my life before the end of the year.
Lawmakers
such as you write laws to be plain and specific in the English language,
but through the C.C.A. the laws are twisted and misconstrued to preserve
convictions. At least three of
the nine judges on the C.C.A. had the conviction to stand up and publicly
admit that the court had been knowingly appointing incompetent attorneys to
death row inmates in Texas. A
death row inmate (Leonard Rojas) lost his life because the C.C.A. failed
to provide adequate and competent legal representation, as outlined by the
1995 Texas Legislature in Act 11.071 State Habeas proceedings.
If
you will please look at the history of my case as outlined in the enclosed
affidavit, prepared by my legal representative – Mr. Roy E. Greenwood of
Austin, Texas, you will see that like Mr. Rojas, I have been dealt a
crooked hand with respect to court-ordered representation.
I was appointed an incompetent lawyer in 1996, who left out all of
the crucial and most important legal issues from his representation of my
case. This resulted in the
forfeiture of future review of such claims.
My Federal review became a mere formality as all of my claims had
been procedurally barred…all because of one incompetent lawyer.
That is not justice!!! That
is not what the lawmakers intended the results of the revisions to the
State Habeas process to be.
From
the initial point of my trial, I have suffered injustice at the hands of
incompetent court-appointed lawyers. The
first appointed counsel, Mr. Donald R. Davis (deceased – suicide), who
suffered from severe bouts of depression and mental illness, knowingly
threw my most critical issues by pleading me innocent.
He threw out my self-defense issue with that plea. I, like so many
other individuals, trusted my court-appointed lawyer because he rushed to
me and insisted that I plead guilty to avoid the death penalty, when, in
fact, the State never withdrew his position of seeking the death penalty,
and my lawyer knew this for a fact. This
shows who the court-appointed lawyers really work for...the State.
I
arrived on death row in 1993, and on my direct appeal I was entitled to a
new trial on the grounds that I pled guilty to the trial court, Judge W.T.
Harmon, at the insistence of my court-appointed lawyer.
The law stated at that time (1993) that a Capital Murder defendant
could not plead guilty to the trial court.
He/she must plead to the jury.
In my case, my jury panel was not even seated and sworn in at the
time of my plea. My direct
appeal was held up in the courts for 3 years, while prosecutors lobbied to
change the law so the conviction could stand.
By law, I should be entitled to a new trial, but it is very
difficult to attain any sense of justice when prosecutors change laws, bend
procedural rules and blatantly disregard the law as written.
When this constant abuse of power is allowed continue, the very
grounds of systematic fairness and justice erodes with corruption and
deceit.
When
an inmate violates the rules of the appellate procedure, he or she is dealt
with harshly or cited for abuse of writ, thus rendering his appeal
procedurally barred. I
suffered this at the hands of an appointed 11:071 lawyer and there is no
way on earth that I should pay with my life for my lawyer’s mistakes.
In
1995, you and your fellow legislators passed the Bill that revised the
State Habeas process...thus Act 11:071 was born and it gave every death row
inmate one good opportunity at the Habeas level, with a competent State
Habeas lawyer, who was chosen from a pool of experienced and qualified
capital litigants. The C.C.A.
became the governing body with the responsibility to appoint these lawyers
and to pay them. The C.C.A.
set a $7500.00 cap per case and the lawyers balked.
To keep the process rolling, the C.C.A. then appointed 3 of its
clerks, Gary Taylor; Gary Hart and Robin Morris, who each took on some
30-plus cases off-the-bat, and pocketed over $1 million between them.
The tone was set and other lawyers began to take on 10-15 cases each
at a time, apparently for the money. These
lawyers did no investigating of legal issues, claims of innocence or
mitigating issues. Some never
visited their clients. Many
missed filing dates by weeks or (up to) 6 months.
The C.C.A. seemed to be O.K. with this behavior.
Many of the lawyers copied previously filed briefs verbatim... and
the C.C.A. was O.K. with that, too.
Judge
McCormick allowed the court to fall out of control and as the acts of
injustice continued to pile up. He
left the court and Sharon Keller was elected to Presiding Judge...and her
reputation is as one who is biased and controversial.
It was she who denied Leonard Rojas justice and I believe that
evidence supports that she knew he did not receive due process.
In the Anthony Graves case, she said “We are not entitled to the
right to contest whether an appointed lawyer deemed competent, actually
does a competent job.” In
the Rojas case, she said “Even if an applicant is entitled, any
jurisdiction this Court might have arguably had over an applicant’s
claims...expired upon his execution.”
Talk
about serious self-contradictions!!! And
this is the person who presides over the most complex cases in the American
Judicial System. This is the
same person who appoints lawyers to death row inmates.
I think it’s clear that these lawyers are often incompetent, and
that she has done so knowinglq, and then denied relief on the grounds of
ineffective assistance of counsel to the very prisoners to whom they’ve
been assigned.
In
November of 1996 I was appointed a State Habeas Counsel from Houston, Texas
named Tom Moran. He stated in
an interview with the New York Times
that he did not want to accept any cases for $7500.00 (the fee
prescribed by the C.C.A.) and that he was being “forced” to take my
case, which would be his only one.
Mr.
Moran and I met on December 6, 1996 at the Ellis One Unit, and
approximately 5 minutes into our conversation he told me that there was
nothing in my case, and that I’d be dead within a year...but, that he
could file some “frivolous” writs to “stretch it out to a year and a
half”. I looked him in the
eye and told him every legal issue in my case, as I knew it thoroughly from
my direct appeal. I then told
Mr. Moran that he could leave because he did not have my interests at hand.
When I told him I’d be informing the Courts, he apologized and he
tried to smooth things over.
When
the interview was over, I knew that I needed to hire a lawyer and so I
hired David L. Botsford of Austin, Texas.
We met around April of 1997 and I gave him all of my legal
documents, along with a letter that I had received from my trial Judge,
William T. Harmon (178th Ct. Harris County).
This letter stated that Tom Moran had 90 days after he returned from
his recent appointment on the Tribunal Counsel in the Netherlands to file
my State Writ. I had received
the letter from Judge Harmon in January of 1997, one month after I
initially met Tom Moran. Mr.
Botsford interpreted this as a time opportunity in order to file a writ for
me. He contacted Mr. Moran by
phone in the Netherlands and quickly thereafter Mr. Moran filed a 5 page
writ by e-mail from the Netherlands, even though he knew that I had hired
another lawyer.
The
most critical conflict in my case began when Mr. Botsford, the lawyer who I
had hired, tried to present his 256-page writ to the Court, and the Court
refused to accept it. As a
result, $16,000 of my money was wasted.
In addition, and most importantly, countless hours of investigation
supporting the truth of my self-defense claim were wasted because Tom Moran
did not file anything that was relevant to my defense.
The writ that he filed, by law, should not even constitute a writ,
as 3 of his 5 issues weren’t even cognizable under State Habeas law.
He didn’t even read the record or prior appeal.
Had he done so, he would have known of the crucial issues he was
leaving out. The writ that Tom
Moran filed is equivalent to “Exparte Kerr” – 64 S.W. 3d. 414.
Under the laws of Art. 11:071, I should be entitled to a new Habeas
process so I can put my procedurally barred issues back into the writ for
review. That’s all I’m
asking for. To let me die for
this man’s incompetence makes my situation identical to that of Leonard
Rojas. And Justices Tom Price,
Cheryl Johnson and Charles Holcomb all stated that these lawyers are
incompetent and that the court has been knowingly appointing them.
The scales of justice cannot be balanced in this manner.
In
February of 2002, my new lawyer whom I hired, Michael Charlton, notified
the Federal Courts (Judge Sim Lake) of his intention to return to the State
and have the C.C.A. review “unresolved issues”.
Judge Lake agreed as it was clearly visible to the naked eye that
issues were left out from the direct appeal to the State Habeas.
The C.C.A. denied it, and to tie Judge Lake’s hands legally, they
cited me for Abuse of Writ, which can’t be so, when the appellant has the
Judge’s authority.
Everything
is now procedurally barred and I will be subjected to execution unless you
and your colleagues step in and insist that I be given a new Habeas
proceeding under the guidelines of Art. 11:071, because I had an
incompetent lawyer and his legal actions were not what you and your
colleagues intended this new law to be.
Art.
11:071 was designed for systematic fairness, but the Court of Criminal
Appeals have turned it into a mockery of justice, where cases are
rubber-stamped by clerks and never reviewed by the actual Judges of the
Court. To cover up for their
shortcomings as interpreters of the law, they simply turn a blind eye to
justice. To actually look at
the situation would be to examine their own faults.
Their records reflect that they have a 97% denial rate on State
Habeas’, knowing that 90% of the petitioners have legitimate claims of
ineffective assistance of counsel, due to the C.C.A.’s reluctance to
appoint competent and qualified counsel as ascribed in the provisions of
Art. 11:071. This blatant
failure to give equal and exact justice under the law to each and every
appellant, will one day come back to haunt the innocent taxpayers of
Texas...and believe me, the costs are going to be astronomical.
All of this is because the C.C.A. refuses to do what the written law
says. Justice Keller has
turned the court upside down in her biased views.
She refuses inmates funds which you lawmakers have set aside for us,
for expert witnesses, psychologists, investigators and mitigation experts.
The funds that she has denied us have been returned to the state
treasury at Sharon Keller’s insistence, and that is not justice.
That is actually a hindrance of justice by a Judicial official.
This woman refuses us DNA tests when it is apparent that a DNA test
could prove a different outcome. Inmate
Jessie Patrick tried to pay for his own DNA test after the C.C.A. refused
him, and the C.C.A. fought Mr. Patrick, and made the granting Court reverse
itself. He was executed on
September 17, 2002, begging for justice.
The state prosecutors claimed that he was malingering to avoid
execution, but with today’s technology, a DNA test can be completed in
2-3 weeks...and Mr. Patrick asked for his 3 months prior to his execution.
It was the State that stalled and fought it, rather than let the man
pay for his own test, since Texas was denying him the right for a
state-funded test under the new DNA law.
Richard
Kutnizer was another DNA applicant who was thoroughly denied.
A year prior to his 2002 execution, the same court that denied him
his DNA test granted him a Stay of Execution, on the basis that he was
entitled to a DNA test. A year
later, they said he was not entitled to a test – another example of
self-contradictory applications of the law.
He, too, was executed begging for justice.
The
majority of the C.C.A. agrees with whatever the prosecutors enter into the
record. There is an allegiance
among prosecutors, and there should not be, not when human lives are at
stake. People are executed
before any form of due process can be enacted.
That is not what the Court of Criminal Appeals was founded upon.
They are deemed by the Texas Constitution as “Interpreters of the
Law” in all criminal appellate cases on the State level.
Unfortunately, somewhere in the mid-1990’s, the court stepped away
from the path of justice that it was founded upon.
These
issues could be controlled and even eliminated if two laws were
repealed, and a moratorium declared by 2/3 of the legislation.
First,
the “Immunity Laws” must be repealed.
This would subject malicious prosecutors to loss of their law
license for up to one year for prosecutorial misconduct.
This would apply to appellate judges, trial judges, prosecutors and
court-appointed lawyers. When
the state of Illinois repealed its Immunity Laws, the conviction rate
dropped from 85% to 20%. Those
same numbers could be attained in Texas if the Immunity Laws were repealed.
Then only deserving cases would be prosecuted under the Capital
Statutes.
Secondly,
the “Texas Inquest Laws” must be repealed, so that those who are
wrongly executed can have their innocence proven posthumously at their own
family’s expense. The
current law does not allow for further investigation into a case once the
inmate has been executed. This
protects lawyers and Judges who have intentionally or unintentionally
convicted and executed an innocent person.
If further cost is not borne by the taxpayers, what justification is
there for denying further investigation?
It serves only to protect the persons who have made mistakes, and
the public from the information that mistakes have been made.
It is certainly possible that innocent people have been executed in
Texas on more than one occasion, and investigations into the past might
reveal information that, while horrible, would be enlightening to lawmakers
and to the public. If this
law, together with the Immunity Law, were to be repealed, then vengeance
cannot escalate. As a result,
every prisoner, and most likely the poor, mentally ill and mentally
retarded, will be more fairly protected.
There
is too much wrong with our system of Capital Punishment as I speak for
there to be no moratorium on execution.
Our Governor continues to declare that our system is correct, but
examination of the chain of events over the past two months disputes that
assumption. The DNA lab in
Houston was found to be so negligent that it was closed down due to gross
errors. Josiah Sutton was
freed due to a DNA test proving his innocence, but the H.P.D. lab swore in
open court that they were 99% sure that Mr. Sutton had committed the crime.
There are 16 death penalty cases pending with DNA evidence which
came from this obviously suspect lab, but our Governor Perry refuses to
halt the machinery of death despite pleas from the Mayor of Houston and the
Chief of Police.
The
U.S. Supreme Court has stated that prosecutors in Texas have been purposely
excluding blacks, Mexicans, Jews and Dagos from serving on jury panels.
Three
Court of Criminal Appeals stepped out and stated that Leonard Rojas should
not have been executed, under the 1995 new State Habeas law, because he was
appointed an incompetent lawyer. Justice
excluded him, but if you act, it will not elude others.
The
Board of Pardons and Parole is a force in the Capital Punishment process,
and for $80,000 per year salary, these people should hold public open
meetings with the defendant present, because people do change over time,
and this should been seen by the public.
Yes,
I don't think it is appropriate to say that we do need a moratorium on the
death penalty in Texas, despite what our Governor says.
I
am asking you to consider my personal situation as an example of the
failures of our system. Twice,
court-appointed lawyers have not even given me the bare minimum
requirements of legal representation under the law as written in the United
States Constitution’s Sixth Amendment.
I am asking you to help me attain a new Habeas proceeding which I
will pay for myself. If there
weren’t such gross injustices in my Habeas proceedings, I would not make
this request at all, but I did not get the per say “one good bite at the
apple”, and justice has consistently been denied to me.
It is not right that I should die for my lawyers’ mistakes,
particularly considering that I hired a competent lawyer on my own; and the
state would not consider the quality writ of my hired counsel over the
clearly inferior work of the court-appointed lawyer.
He made it clear that he did not want to work for me, and the work
that he produced clearly represents his lack of interest in my fate. This
is a miscarriage of justice.
I
am asking you to PLEASE look at the sworn affidavit enclosed, which
outlines the many systematic failures that occurred in my case.
I humbly ask you to please pick up the phone and call someone who
can send my case back for a full review on State Habeas proceedings.
When a lawyer who is appointed to defend me up and runs to the
Netherlands for 2 whole years and then e-mails something that would be an
insult to the authors of the “Great and True Writ”, without doing any
evidence investigation, leaving out my most important issues – I feel
that I should be entitled to another habeas proceeding.
I am willing to pay for this myself.
Due to his incompetence, I have only one issue considerable by the
U.S. 5th Circuit Court of Appeals, but I have hope in my heart
that you will stand up for Justice and what is right under that law that
you passed. My time is very
short and without your quick intervention I could by executed before
Christmas. My case would then
become another “Leonard Rojas”. I
am not asking for Freedom, but only for a chance to reinstitute my left-out
issues into my State Habeas. The
only way to do that at this point is to call
someone at the 5th circuit and have them return my case to the
state level for another Habeas proceeding.
All I want is a little systematic fairness and nothing more.
In all actuality, systematic fairness should be afforded to every
man and woman regardless of race, religion, creed or socio-economic
background. Justice should be
blind, but in Texas, Justice is unfortunately not blind.
I
ask you also to please vote for a moratorium because our system is
definitely broken and in dire need of serious repair.
What we have in place now borders on barbarism and in this day and
time, that shouldn’t even exist when a life hangs in the balance –
there should be no errors tolerated. If
we must have a death penalty, then let there be a very correct and fair
system to every accused. That
way, you will feel confident in knowing that our system has been repaired
and is correct. Then no
innocent person will be able to fall through the large cracks which exist
today.
Thank
you for your time in this matter and I hope and pray that you’ll help me
attain Justice as ascribed in the provisions of Art. 11:071. God bless you.
Sincerely,
Farley
C. Matchett, 999060
Polunsky
Unit
3872
FM 350 South
Livingston,
TX 77351
REFERENCES
1.
Roy E. Greenwood, Attorney at Law
512-329-5858 (office)
12-329-9199 (fax)
reglaw@austin.rr.com
2.
Michael B. Charlton, Attorney at Law
1744 Norfolk
Houston, TX 77098
713-572-2333
Charlton@orbitworld.net
3.
No:71,664-A; In the Court of Criminal Appeals of Texas, Austin,
Texas
4.
No: 653985-A; In the 178th Judicial District Court of
Harris County, Texas; ExParte: Farley Matchett
5.
No: H-02-1844-Civin Action; In the U.S. District Court for the
Southern District of Texas; Houston Division
6.
Case Currently Pending before the U.S. 5th Circuit Court
of Appeals; New Orleans, Louisisana; Justice Carolyn D. King – Presiding
Judge.
7.
Farley C. Matchett -- #999060
Allan B. Polunsky Unit DR
3872 FM, 350 South
Livingston, TX, 77351
Farley's current (new) attorney Anthony S. Haughton, Houston - May, 2006
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