Last night, Texas murdered Raphael Holiday. They didn’t call it murder. They called it an execution, because that makes it sound more official. But they intentionally caused the death of a human being. That, however, isn’t particularly noteworthy in Texas.
It’s not that Holiday, if he was guilty as convicted, was the sort of guy you would invite home for dinner.
Holiday, 36, was convicted of intentionally setting fire to his wife’s home near College Station in September 2000, killing her three little girls, the youngest of whom was his daughter. He forced the children’s grandmother to douse the home in gasoline. After igniting the fumes, Holiday watched from outside as flames engulfed the couch where authorities later found the corpses of 7-year-old Tierra Lynch, 5-year-old Jasmine DuPaul and 1-year-old Justice Holiday huddled together.
Horrible stuff. But the story behind an execution is almost invariably horrible stuff. This is not to suggest that, if all this is true, Holiday isn’t a horrible person. But even horrible people are entitled to constitutional rights, and that’s where this is heading.
From his cell on death row, Raphael Holiday drafted letter after desperate letter to lawyers who represent the condemned. He begged for their help to plead for mercy from Gov. Greg Abbott, to try any last-ditch legal maneuvers that might stave off his impending execution.
Holiday’s appointed lawyers had told him that fighting to stop his punishment was futile, and they wouldn’t do it.
As with all death row prisoners, lawyers were appointed to represent Raphael Holiday, because they were going to kill him. In the roll of dice, Holiday lost.
Lawyers James “Wes” Volberding and Seth Kretzer said they worked diligently to find new evidence on which to base additional appeals for Holiday, but that none exists. Seeking clemency from Abbott, a staunch death penalty supporter, would be pointless, they say.
It may be true that the effort would ultimately prove pointless. But that’s not the point. That’s not the duty they undertook. That’s not their call.
The two contend they are exercising professional judgment and doing what’s best for their client.
Doing their best for their client? By giving up and letting him die?
“We decided that it was inappropriate to file [a petition for clemency] and give false hope to a poor man on death row expecting clemency that we knew was never going to come,” Volberding said in a telephone interview.
In his mind, Volberding apparently thought that giving “false hope” to his client was a worse fate than abandoning his client to the executioner.
No lawyer envies the work of those charged with the post-conviction representation of a death row prisoner. It’s miserable work, and all too likely to end with death no matter what efforts are made to prevent execution. But that’s not the point. When the punishment is death, you do not stop until the last breath leaves your client’s body.
“This seems unconscionable,” said Stephen Bright, president and senior counsel of the Southern Center for Human Rights and a teacher at Yale Law School. “Lawyers are often in a position of representing people for whom the legal issues are not particularly strong, but nevertheless they have a duty to make every legal argument they can.”
Bright isn’t merely some Yale dilettante, but a lawyer who did his time in the trenches fighting battles that couldn’t be won. Yet, he still fought. As must every lawyer who takes the responsibility for another person’s life when he has a date with the executioner.
There is no claim that further representation is “inappropriate.” There is no defense to the failure to persist, even in the face of apparent futility, to push, then push again, then push some more, against the tide sweeping a human being toward his death.
There is a host of arguments, avenues, challenges, made by any competent death penalty lawyer to put a stop to an execution. People often ponder why, for example, there is so much emphasis on the execution cocktail, the efficacy of the drugs used, even where they came from. The simple answer is that lawyers who fight to stop a killing use any means available to put up a fight. Every day their client lives is a day of victory.
Holiday didn’t die alone.
In late October, [Gretchen] Sween, an appellate lawyer from Austin who teaches writing and advocacy courses at the University of Texas School of Law, agreed to help Holiday obtain new lawyers, at no charge.
Sween filed a motion alleging that Volberding and Kretzer had abandoned Holiday in his hour of greatest need. The law under which the two were appointed says lawyers for death row clients “shall” represent them in “all available post-conviction proceedings.” She pleaded with the court to assign new lawyers who would do so.
Sween fought to have Volberding and Kretzer removed as counsel, and new counsel appointed for Holiday. And the pair decided to fight. Not for Holiday, but against Sween.
Volberding and Kretzer opposed the motion and sent Sween a letter threatening to seek sanctions if she did not stay away from their client.
If nothing else, absolutely nothing, why they would raise a hand to interfere with Sween’s efforts is beyond shocking. It’s utterly mindboggling. If they weren’t going to do it, let someone else. But not these two.
“If you can propose a course of action that stands a reasonable chance … we will pursue it,” Volberding said in a letter to Sween. “Otherwise, we respectfully ask that you take no further action in this case. We will respond firmly if you do.”
Nevertheless, in an effort to mollify Sween, Volberding and Kretzer filed a clemency petition — hastily. In two places on the first page, the document cites the wrong execution date for Holiday. The petition painstakingly details the horrific nature of Holiday’s crime, while containing little evidence that might persuade the governor to show Holiday mercy.
And when Sween went to the 5th Circuit, she was smacked again.
A three-judge appellate panel denied the motion and warned Sween that future attempts to dislodge Holiday’s lawyers would be viewed skeptically.
Welcome to the warm reception one should expect from an important appellate court for the effort to make sure a death row defendant has counsel.
And despite Sween’s efforts, Texas murdered Raphael Holiday. No doubt Volberding and Kretzer will say that Holiday’s death saddens them. Just not enough to have tried to save his life. Bright drives the point home:
“Most people don’t get executed for crimes they committed,” Bright said. “They get executed for mistakes their lawyers made.”
The mistake here was the appointment of two lawyers who quit, then did all they could to prevent anyone else from doing what they failed and refused to do. This is as disgraceful and disgusting as it gets. Raphael Holiday’s hope was very much false, as it rested in the worst hands possible, those of Volberding and Kretzer.
Update: Jeff Gamso, who knows as much about defending those who are about to die as anyone, offers his thoughts on this disgrace.