Raphael Holiday’s False Hope

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.

19 thoughts on “Raphael Holiday’s False Hope

  1. REvers

    I saw some truly weird shit go down back in my death penalty days, but nothing like this. The 5th Circuit ruilng doesn’t surprise me, though.

    1. SHG Post author

      While there is no shortage of outrageously offensive quotes coming from Voldering and Kretzer, the one that gets me the most is their attempt to spin death as in Holiday’s “best interest.” And I picture, in my mind, some moron nodding his head, muttering, “well, if that’s what the lawyers say, then…”

      1. Richard G. Kopf


        I’m the moron you pictured.

        Sometimes, but very, very, very seldom, it is the ethical, and dare I say humane, course for lawyers in a death penalty case “to help [their client] go gentle into that good night” (borrowing a phrase from Jeff G., in a way he did NOT intend) even though the client pleads with them to pursue a truly hopeless tactic. SHG, in this case, you (and Jeff, and Mr. Bright, and the rest of the critics) are just “dead” wrong.

        All the best.


        1. SHG Post author


          Even if the death lawyer fails, and the defendant is executed despite every effort made to save him, he goes “into the night.” There is no kindness in helping him to go “easy.” Much of what we do is “hopeless,” in the sense that despite every effort, success eludes us. There’s no excuse for quitting. We don’t quit.

          1. Richard G. Kopf


            You would not quit, and the vast majority of your brethren would not quit, but a lawyer defending a client in a death penalty case is not ETHICALLY bound to “catch lightning in a
            bottle.” Attack these lawyers for their judgment, but don’t label them unethical for failing to pursue the impossible.

            All the best.


            1. SHG Post author

              If by ethically, you mean the Code of Professional Conduct (or in this case, the Texas Disciplinary Rules of Professional Conduct), rather than a higher order of ethics than the barest mininimum required to avoid discipline, I would still take issue.

              Even the floor of ethics requires the advocate to zealously represent his client. As long as there is a possibility to “catch lightning in a bottle,” the duty to zealously try is clear. And when it comes to death, as experience of last minute reprieves teaches, there is always a possibility. There is always an element of mercy that can’t be quantified.

        2. Jay

          Nah. You’re thinking of the clergy your honor. A defense attorney doesn’t counsel a client to commit suicide. That’d be counseling them to commit a crime, and we’re not allowed to do that. Ethics and all.

          1. Richard G. Kopf


            No, my friend, I am thinking like a legal realist with a fairly long list of death penalty cases in my background where I was obligated to appoint and superintend the activities of death penalty lawyers. See also my reply to SHG regarding the ethics question.

            All the best.


            PS. If you knew me, you would be amused at the suggestion that I am thinking like the clergy. Thinking like the dreaded secular humanists maybe!

            1. Jeff Davidson

              Hello Judge Kopf –

              Ethically, when is an attorney permitted to cease advocating for their client? What is the percentage of likelihood of success that requires advocacy as opposed to abandoning the client? IANAL so this is a genuine question, somewhat in response to SHG’s note that in his view a lawyer is always required to be a zealous advocate.

              Thanks, and best wishes to you.

        3. Nigel Declan

          There is a difference between not including every argument or tactic your client might suggest, whether because it is unethical, because it concedes things that hurt the client’s case or because superior arguments exist, and deciding that there is no point in making an appeal because you, the lawyer, do not feel it has any hope of success. The former involves a lawyer doing his job properly and ethically in trying to present the case in the way most likely to help his or her client, given that he or she must conform to page limits and time limits imposed by the courts; the latter is simply an abdication of his or her duty. Lawyers unprepared to fight to the very end have no business getting in the ring in the first place.

  2. Richard G. Kopf


    Loved the “Becket” reference, and the “first draft.”

    But, not to put too fine a point on it, it was King Henry II to whom you should have attributed the first (and every other) draft. After all, it was he who sent his Knights to hack Becket to death in the Canterbury Cathedral.

    King Henry II did not fuck around when it came to the death penalty. I think that incident also prompted the phrase “don’t mess with Texas” but I am not certain.

    All the best.


    1. Lurker

      Judge Kopf is not thinking like clergy. He is thinking like a medical doctor who considers that it is her duty to defend the quality of life of the patient. In that branch of medical ethics, prolonging the suffering of a terminally ill patient is considered horrendous. It is better to allow the nature to take its course, and ease the patient’s pain with palliative care.

      The good Judge thinks, it seems to me, that a hopeless case should not be pursued, much for the same reasons. The death row inmate is living in horrible conditions that exceed the normal punishment of incarceration. Essentially, every day he goes on living makes the punishment greater, not lesser, as life of a death row inmate is torture in itself. Thus, an ethical lawyer does not necessarily consider that continued life is in the client’s interest.

      Yet, this should be a call for the convict to make, not for the for the lawyer.

      1. SHG Post author

        It’s unclear whether you are “explaining” Judge Kopf or engaged in your own analogy between a doctor and a lawyer. If the former, I would think Judge Kopf has already explained himself. If the latter, then your analogy has some issues (as does your assumption; the Shawshank Redemption was not a documentary).

        Docs can’t perform the same medical procedures over and over on a patient, and procedures can be physically painful and harmful, even causing death rather than preventing it. There is neither physical pain, nor potential to cause death, in going from court to court to governor to court, to a death prisoner. The worst of the complaint is the let down of failure, but as here, the Holiday sought attorneys who would continue to try.

        If the facts were that the defendant wanted his lawyers to stand down, that would be a different discussion. That may not have been clear from the commentary, but we’re talking about what happened in the case of Raphael Holiday.

  3. Fubar

    With humblest apologies to Thomas, Empson, Plath, Roethke, Bishop, Auden, Robinson, and all masters of the form.

    Letter to a Client Facing that Good Night.

    Dear Client, we can do no more for you.
    Please close your eyes forthwith, and gentle go.
    Please understand. There’s nothing we can do.

    We know the law. What’s more, we’ve thought it through.
    The law’s Tsunami now has you in tow.
    Dear Client, we can do no more for you.

    Good clients understand their hopes are few,
    Escape can’t happen once caught in that flow.
    Please understand. There’s nothing we can do.

    New counsel could not help if we withdrew.
    Nobody else can help. That much we know.
    Dear Client, we can do no more for you.

    Find darkness, purgatory, life anew.
    Your faith alone determines which tableau.
    Please understand. There’s nothing we can do.

    Eyes open, shut, regardless, just eschew
    all hope, and any more appeals forgo.
    Dear Client, we can do no more for you.
    Please understand. There’s nothing we can do.

  4. Bob

    Is there a clemency petition equivalent of an Anders brief?

    “I’ve searched the record and found no grounds for you not to kill this guy, but if you want to stop the execution, have at it.”

  5. Pingback: 2015.97: Volberding and Kretzer Just. Give. Up. » Defending People.

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