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Rushed justice is no justice

July 14, 2018

In the end, Visiting Judge Susan Reed did the right thing, albeit reluctantly, in granting a mistrial in the death penalty case of Brian Flores.

It doesn’t matter if the mistrial pushes a new trial into the administration of the next district attorney, as prosecutor Jason Goss argued at a recent hearing. By going forward with jury selection when Flores’ lead attorney, Ed Camara, was out with a concussion, Reed had set up what would have been an unusually strong appeal for someone charged with murdering two teenagers.

It also doesn’t matter that attorneys with Texas Defender Services, a nonprofit focused on death penalty cases, are assisting Flores’ counsel in this case. Bexar County did not appoint Texas Defender Services to represent Flores. The county is not paying attorneys with the nonprofit. The county appointed Camara as lead counsel and David Woodard as second chair.

Those are his attorneys, regardless of outside assistance. State law requires two appointed attorneys in death penalty cases, including a qualified lead. Not only this, but standards for the State Bar of Texas and the American Bar Association call for two attorneys.

A second chair is not like a backup quarterback who fills in when the starter goes down. A second chair is a qualified attorney but is also learning from the lead.

With Camara out with a concussion during jury selection, Flores had one attorney, the second chair. That’s not enough, which is why Reed had to grant the mistrial.

From the bench, Reed acknowledged “the scrutiny that is given to capital murder cases, and the Texas statute that requires first chair designation and all of that. ... It is concerning.”

But she seemed more concerned about the requirement of having two attorneys since Texas Defender Services is assisting with the case.

“I think the Legislature needs to take another look at that based on Texas Defender Service, who is essentially working with you, and I think it would be disingenuous to say they are not. Because they are.”

Immaterial.

Reed’s hands were tied — but only because she tied her own hands. On June 20, Camara blacked out in the shower (due to a change in blood pressure medicine), hit his head and suffered a concussion.

Jury selection was continued until June 25, but according to court filings, when the trial resumed, Camara was unsteady and lightheaded. A motion was filed to continue the trial, but Reed denied it.

During jury selection, Camara felt nauseous and worried he would collapse. Under advice of his doctor, he went home at lunch.

That left Woodard as the sole attorney. He asked for a continuance, which Reed rejected. She pointed at two attorneys with Texas Defender Services and said Flores had three attorneys, the motion for mistrial says.

Even though Woodard said he was not qualified to lead jury selection, Reed ordered him to proceed. In doing so, she basically gift-wrapped an appeal if the trial continued.

Don Flanary, president of the San Antonio Criminal Defense Lawyers Association, was aghast. Reed’s initial actions, he said, violated Flores’ Sixth Amendment rights to effective counsel.

It’s a point that Camara’s doctor, Burton G. Shaw, raised at the recent mistrial hearing.

“In the case that someone’s life is at issue, I would want my attorney to be completely competent,” Shaw said. “And I am not sure that (Camara) is.”

But more was at play than the rights of Flores. Let’s not lose sight of the victims and their families.

“Let’s say this guy is guilty,” Flanary said. “This (would have) caused an error.”

And an error would have meant a potential reversal. But a mistrial during jury selection only means a do-over, which is a hassle, but not an injustice.

“No court should be conducting trial proceedings with impaired counsel,” said Amanda Marzullo, executive director of Texas Defender Services.

Much like tolerating hate speech as a consequence of (true) free speech, it’s crucial to hold the line in death penalty cases. The stakes are so high, and there have been wrongful convictions. But also, in the most horrific crimes, it’s essential proper practices are followed. In other words, it’s a reflection of us, not the defendant.

In this case, rushed justice would have only expedited a very strong appeal.

jbrodesky@express-news.net

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