In the hours before Raphael Holiday was put to death by lethal injection earlier this month, he made a final appeal to the Supreme Court. The convicted Texas murderer argued that his two court-appointed lawyers had abandoned him by not filing a last-ditch petition for clemency.
Now, another man on death row in Texas is accusing the same two lawyers of failing to provide him with effective counsel. In a petition to the Supreme Court, Robert Roberson alleges that they haven’t pursued a key legal avenue in his appeal because of a conflict of interest.
The lawyers, James Volberding and Seth Kretzer, say they’ve represented their clients effectively, and that the claims against them have been instigated by outside attorneys. "We're practical street lawyers. We deal with reality, not the world that you wish it was," Volberding told me. "Some other lawyers—we call them dreamy-eyed—want to pursue any conceivable option, even though it's completely unrealistic."
But the legal duo is facing the unusual situation of opposing court motions filed by two of their their own clients within a few weeks. Their actions have raised eyebrows in the insular world of capital punishment attorneys—and at the Supreme Court.
Being a death penalty lawyer means following complicated, technical appeals processes, often with only a vanishing chance of winning. That’s especially so in Texas, which has accounted for more than a third of all executions in the country since 1976.
In both the Holiday and Roberson cases, the question seems to focus on whether a lawyer must exhaust every possibility of avoiding an execution—or whether it's better to be realistic about which claims are likely and which have virtually no chance of success.
Let’s start with Holiday. He was sentenced to die in 2002 for burning a house down with his 18-month-old daughter and her two half-sisters inside. His mother-in-law testified during trial that he forced her at gunpoint to spread gasoline while the kids watched. Then he lit a match.
Volberding and Kretzer represented Holiday in his federal appeal. They filed a long petition alleging mistakes in the trial. But they lost at every level, and in June, the Supreme Court declined to hear the case.
Holiday asked Volberding and Kretzer to file a clemency petition on his behalf. They declined, telling him that success was highly unlikely. Clemency requires approval from a state board as well as the governor. Only two death row inmates in the last 20 years have won clemency in Texas.
“It was our professional opinion that a clemency petition did not have a realistic chance of success and merely raised false hopes,” Volberding told me. “We hate the situation that ultimately happens, where someone is sitting there on the day of the execution waiting for a one in a million or one in a billion chance that their petition is going to work,” Kretzer added.
But federal law stipulates that attorneys appointed to represent death row clients shall represent them in “all available post-conviction proceedings.” And legal experts say there isn’t wiggle room, even if a win seems as likely as a snowstorm in San Antonio.
“There should have been a federally appointed lawyer who was looking after [Holiday’s] interests instead of letting him to go the execution chamber essentially unrepresented,” said Jordan Steiker, the head of the University of Texas Law School's capitol punishment center.
After Holiday took on the services of a pro bono attorney who filed a motion to have Volberding and Kretzer removed from the case (the two lawyers are being paid by the court), the lawyers soon changed their minds and filed what they admit was a hastily-written clemency petition—Volberding characterized it as “very quickly and effectively” done. The petition was denied.
Two weeks ago, on the day of his scheduled execution, Holiday's former trial attorney made a final appeal to the Supreme Court, which was denied. But in an unusual turn of events, Supreme Court Justice Sonia Sotomayor issued a statement naming Volberding and Kretzer, more or less rebuking them for having “abandoned” their client. “So long as clemency proceedings were ‘available’ to Holiday, the interests of justice required the appointment of attorneys who would represent him in that process,” she wrote.
After reviewing Sotomayor’s statement, Volberding said he and Kretzer will be filing clemency petitions in all of their death penalty cases going forward.
Only a few weeks after Holiday’s execution, the Supreme Court will once again consider a motion by one of Volberding and Kretzer’s death row clients asking to have his lawyers removed. On Friday, the Court will hear a petition by Robert Roberson, who alleges that they've failed to adequately represent him because of a conflict of interest.
Roberson, 49, was convicted in 2003 of murder in the first degree for killing his two-year-old daughter by dropping or throwing her. Prosecutors originally alleged that he also sexually assaulted her, but dropped those charges by the end of his trial.
Roberson’s claim is a little more complicated. It’s important to understand that most death penalty cases fall into three consecutive stages: the trial, the state appeals, and then the federal appeals. You can't introduce new arguments in the federal appeals stage that you didn't make in the state appeals stage. Volberding represented Roberson solo during the state appeals, and was unsuccessful. Now, he and Kretzer are representing Roberson during the federal appeals.
Roberson wants to argue during his federal appeal that his trial court attorney didn’t do a thorough enough investigation of mitigating evidence—a claim under the Sixth Amendment. But it’s an argument that Volberding didn’t make during the state appeals process. Roberson is now only allowed to argue that his trial attorney was ineffective if he also argues that his state appeal attorney—Volberding—was also ineffective.
Roberson asked Volberding and Kretzer to make this argument, but they declined, saying that it wasn’t an issue because there was no evidence supporting the underlying claim of the trial attorney not doing enough. “We looked at that issue and we did not find any substantial evidence to support that claim,” Volberding said. “We must make credible claims to the federal court—we are prohibited from making frivolous ones.”
So Roberson filed a motion in May to have Volberding and Kretzer removed or have a new lawyer appointed. Roberson says it's a conflict of interest because Volberding would have to essentially argue that he himself was ineffective. The lawyers opposed his motion, and an appeals court agreed with them. Now, Roberson is taking that decision to the Supreme Court.
Lee Kovarsky, an attorney with the nonprofit Texas Defender Services who’s representing Roberson pro bono for the change of attorney motion, said his organization received “a series of letters” from Roberson complaining about his attorneys.
“The client wants the [ineffective counsel] claim pursued, and they're obstructing that from happening,” Kovarsky said. “They're very concerned about their professional reputations… If they have a conflict of interest, they're supposed to get off the case.”
Steiker, the law professor, said the Roberson case seemed to be a clear conflict of interest. “It would be hard for them to concede their own ineffectiveness,” he said. “I'm sort of surprised and shocked that they would remain on the case when there's any question about whether they're in a position to zealously represent Roberson's interests.”
The Supreme Court is expected to issue a decision next week about whether it will hear Roberson's request to switch attorneys.
The two lawyers say that in both Holiday's and Roberson's case, outside lawyers “helicoptered in” at the last minute, meeting with their clients and convincing them to file motions to change attorney. “It's a litigation tactic,” Volberding said. “What they are attempting to do is force a delay in the execution, in both cases.”
Kovarsky denied that. “This is about the inmate having a chance to litigate a claim that might save his life,” he said.
Correction: An earlier version of this story misspelled Kretzer's last name.
Casey Tolan is a National News Reporter for Fusion based in New York City.