Handling Post-Convic ...

Handling Post-Conviction Death Penalty Cases Pro Bono | McKenzie Edwards

December 14, 2023 | by D. Todd Smith

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Finding a career in the law and finding something you’re passionate about don’t always intersect. But McKenzie Edwards, a trial lawyer with Cleveland | Krist PLLC in Austin, has managed to do both. Starting in law school, she saw the inconsistent and nebulous rules concerning how and when a state seeks the death penalty. This inspired her to represent defendants in death penalty cases. Through pro bono, she’s managed to continue that practice, while also working on civil cases. In this episode, McKenzie joins Jody Sanders and Todd Smith to discuss her perspectives on the death penalty and how state and federal law has created a complicated, often unnavigable, framework that leaves defendants behind. She also discusses how to find rewards through pro bono work. 

Our guest is McKenzie Edwards from Cleveland Krist in Austin. McKenzie, thanks so much for being here.

Thanks for having me. I’m excited.

We’re excited you’re here. For our audiences, tell us a little bit about yourself and your background. Introduce yourself.

I was born and raised in Midland-Odessa and was a West Texas baby my whole life until I moved to Austin to go to UT for undergrad. I moved up North for law school immediately after I graduated and went to Northwestern in Chicago, which is where I graduated in 2019. I always knew I wanted to come back to Texas. I immediately came back, took the July 2019 bar, and then started my clerkship with Justice Guzman at the Texas Supreme Court in September 2019. I did that for a year. When that was done, I went to Bracewell in Houston for a couple of years, moved to Austin, and found this trial boutique, Cleveland Krist, which is where I work now.

You mentioned your Supreme Court clerkship. You happened to be there when some pretty significant things happened. The first one is that the first couple of episodes of the show got recorded there right during your clerkship, which is very exciting, and also the day the bat got loose in the Supreme Court. You were there for those. There was also COVID and ransomware stuff. How was that doing your clerkship during all that?

It was an interesting clerkship term. In COVID, the court went above and beyond to make sure that we had the resources we needed to keep getting the work done. There was a little bit of a learning curve right as it happened. We didn’t all use the remote technology to get into your computer very often. Everyone was in-person working in the office, and a couple of staff would work from home. For the most part, it wasn’t set up for all of us to do it but within a couple of weeks, they nailed it. We all had remote access. We weren’t having any technical glitches with it.

As far as the conference goes, they found a virtual way to do that and to let the clerks participate. Speaking of a Supreme Court clerkship, I don’t know if all of your audiences will know this but it’s one of the few clerkships where when the justices have a conference, the clerks get to participate. That was an awesome part of it while it was in-person and then something that they maintained as COVID was happening. They did a good job with that but then a couple of weeks after the remote thing was finally settled, and everyone has adjusted to working from home, we had the ransomware attack.

At first, I didn’t know if anything completely out of the ordinary was going on because I thought it might be a glitch with the system getting into my computer but my files are pretty meticulously organized, and there was only one file in my main file folder. It was that ransom note that NetWalker left for us. I clicked on it. I don’t remember exactly what it said but it was scary stuff, “Your blood pressure is going up. You deserve to be scared of this. It’s going to cost a lot of money to get it back.” I called my staff attorney, “I don’t know what’s happening.” She was like, “It’s not just you.” It was hectic handling that.

The cat was already out of the bag by the time you clicked on it. What you’re not saying is that you’re the one that caused the ransomware.

If I was that person, I don’t think I would admit to it publicly.

I can only imagine how scary that was. As a new lawyer, you didn’t even have your law license yet because you wouldn’t have gotten your bar results yet.

The bar results came out that October but this was also the clerkship term where they leaked a day early. A couple of hundred emails went out telling people that they had passed but they were supposed to go out the next day. They came out on a Thursday. They were supposed to go out on that Friday. I don’t think BLE was prepared for the accident. We didn’t know what was happening. We ran to Justice Busby’s office, and every clerk that had taken the Texas bar was sitting on his floor, “What is going on? Tell us if we passed. What do we know?”

I did have my bar license but I was a baby attorney, “This is the state high court, and this is a ransom note on my computer. What on Earth?” All in all, they resolved it well. OCA deserves all of the kudos in the world for the work they put in fixing that. Some people lost some work. Two weeks of documents never got fully saved. That’s a bummer but everything else did. They handled the backlog of things. They did a wonderful job.

It’s remarkable when you think about the volume of the court system that was impacted. They were able to bring it back as quickly and as thoroughly as they did. You started practicing at a weird time too. How was transitioning into practice from a clerkship in the middle of COVID?

It was interesting. My firm at the time was still letting us work remotely, and then they gradually brought back in-person but one thing I will say is that as a young attorney working from home and having graduated from law school, I was pretty used to being in whatever area of my house I set up to study in and to get substantive work done. It was law school work and not actual practice work but it felt like the next step in that when I was adjusting to COVID.

A lot of young attorneys feel similarly. We grew up with all of this technology. It’s not as disruptive to some of our generation as to some older practitioners who like the in-person thing constantly. I’ve come to believe that a part in-office and a part in-home setup or a hybrid is a good path forward. It’s probably what most people will end up doing soon.

The proof of concept is the fact that all these law firms ran and worked so well but there are tons of value in being in the office. I love being around my firm because the partners are good mentors. They come in and talk to you about things, update you on cases or matters that you’re not on, and check in on stuff. I like being at home, and that wasn’t as much of a huge adjustment for me but I like being in the office too.

You’ve transitioned into a trial boutique. Did you know all along that you wanted to do trial work? You did an appellate clerkship, which doesn’t mean you don’t do it. I’m curious about your path.

I originally thought that I wanted to do a little bit of trial and a little bit of appellate. As I’ve gotten into my practice, I do all civil trial and criminal appellate, which is a pretty unique setup but for the most part, my firm does all trial work. We take in some interesting cases. Almost all of our clients are invested in this. Sometimes we have had disinterested clients who aren’t as involved in the case. All of our clients seem to care. It’s a lot of successful small businesses. We also take a bunch of interesting higher-profile cases that are a dollar short of the big law minimum, which means that we get some meaty, substantive, and fascinating cases that we get to litigate. That has been a blast.

Credit to Karen Vladeck for finding me this job because she was the recruiter. I moved to Austin. Bracewell was still a little bit in-office and a little bit remote. I was Houston office-located but I was living in Austin. I was like, “I don’t think this is going to hold very long.” I had gotten on Twitter, and it was an eDay that Karen was like, “I am switching to recruiting.” I didn’t know her but I followed her on Twitter for a while, and I was like, “I like what she has to say.”

My biggest fear with getting a recruiter was I didn’t want to be sold to the highest bidder. I wanted to find a place where I would fit in and stay. I was like, “She wouldn’t be the kind of recruiter to do that to me. She would be willing to work with me and find a place where I would be a good fit that’s an unusual option for a recruiter.” She found me this firm, and it could not have been a better fit. She did a great job. I owe a lot of this to Karen.

We like stories like that.

We always want to plug Karen who is one of our top ten downloads of all time, which is more than we can say for her husband, Steve, but I’m sure he will catch up one day.

We could have a whole conversation about that but we won’t.

We should have them both on to do that. One of the things that we want to talk about is that you do criminal appellate work, which is an interesting thing that you don’t see particularly for someone who works at a civil trial boutique. How did you get into that niche?

It started while I was in law school. All law schools do it but Northwestern particularly encourages you to take the clinics for some hands-on practical experience. I didn’t know which one I wanted to do. I went to the clinic seminar thing where everyone presents them. The name of the professor of Northwestern’s death penalty clinic is Rob Owen, and we’re probably going to talk about him a lot. He gave a presentation on one of the cases that the clinic was handling and described a situation where I was like, “I don’t think that guy deserves to die.” I couldn’t stop thinking about it.

I left the thing. I had a friend with me, and he was like, “That clinic seems interesting. I might take it.” I was like, “I was thinking the same thing.” I thought I was going to do an entrepreneurship clinic or maybe the Supreme Court clinic but I couldn’t get my mind off this one. I joined the clinic. At the time, I was pro-death penalty. I hadn’t thought about it. I’m from Midland-Odessa. People talk about it like it’s not even a thing that’s accepted. It’s a thing that’s necessary.

I hadn’t interrogated my beliefs about it. I joined this clinic. I started learning the basics of what the death penalty system is and then the actual specifics of some of these cases. I saw so much rot and breakdown in this that I could not stop thinking about it. I spent more time on this clinic than was even strictly speaking necessary because I found it to be such important work. Eventually, when I graduated, I knew that I was going to be joining Bracewell, and they gave us 100 pro bono hours. I talked to Rob, “I want to donate all of my pro bono hours to you and these clients to continue doing this work.”

Eventually, Northwestern shut down that clinic. Rob went into private practice as a solo practitioner. It was where I got most of my cases when I was immediately coming out of law school. He subbed me in on clients I had while I was in the clinic but then also a couple of new ones. That is how I got started in all of this. As I’ve been practicing, I’ve met more people in the capital defense community. I get referrals from them. We go to conferences to talk about the death penalty. You get brought in to consult on a discreet issue for a client that someone else has. That’s how I came to be where I’m at now.

For people like Todd and me who have a basic understanding but not a super deep one, can you describe the death penalty process from conviction beyond post-conviction and all that stuff?

In Texas, a limited subset of murders qualifies as capital offenses. If you get charged with one, you’re going into a completely unique criminal process. Death penalty trials are bifurcated. There’s a first phase. That’s the guilt-innocence phase. It’s what you imagine when you think of a criminal trial. There’s a second phase of the trial that goes to sentencing. That trial is unique in that a capital defendant is allowed to present almost unlimited mitigating evidence to say, “I do not deserve to die.”

There are some pretty standard forms of that. If you were young at the age of your offense, if you have a mental disability, or if you have evidence of a particularly turbulent childhood or upbringing education issues, things about your faith, and things about your community, you can introduce any of it to try to convince a jury to give you a sentence less than death.

At the end of the sentencing phase trial, the jury will answer three questions. The first is what we call the future dangerousness question. If you think that this defendant will commit future acts of violence and be a continuing threat to society, the jury has to answer yes or no. There’s a second question that’s only asked in some cases. In Texas, you can be charged and convicted of capital murder under the law of parties, the felony murder rule. You can be sentenced to death without having killed anybody.

There’s a second special issue question specifically for those defendants saying, “Did this person know this murder or death might occur? Did they intend for it to occur?” If the jury answers that question yes, then we go onto the third question, which is whether all of the mitigating evidence that was presented at the sentencing trial convinces this jury to sentence anything less than death.

If the first two questions or the first question, if there isn’t a second, is yes and the second question is no, it’s an automatic death sentence. If the first two questions aren’t yes, or in the second question, the jury says that they found mitigating evidence or they think that there has been enough, then the defendant will get a life without parole sentence. That is the trial structure. Once you’ve been sentenced to death, you have an automatic appeal.

Before we move on to appeals, I do have one question. I understand that generally speaking, it’s unconstitutional to execute someone who’s intellectually disabled. Is that something that is decided as a matter of law by the court? Is that a question for the jury? How does that play out?

The mental disability thing is an ongoing hot-button issue in the death penalty system. The court has said that they want lower courts to do a holistic evaluation, look at test results, have a doctor do the full evaluation of this person, figure out what their IQ is, get some concrete evidence of mental disability, and have that be interrogated as a portion of the proceedings.

The problem is that they haven’t given concrete guidelines on what that’s supposed to do. Texas in particular is very bad about disregarding mental disability evidence. They have what’s called the Briseño factors. It’s this outdated list of factors that the Texas Court of Criminal Appeals has been applying to all of these cases where a criminal defendant is saying they have an intellectual disability. In these lower courts where defendants are saying that they’re intellectually disabled, the Texas Court is applying a list of factors that the Supreme Court has said, “You don’t get to do that anymore.”

There’s this whole wealth of confusion about what you’re supposed to look for in this. A bunch of states are enacting laws themselves to outline what those factors are based on medical evidence. Texas has tried to do that. In the last 3 or 4 sessions, representatives have been introducing legislation to do the same thing here to up our game on the intellectual disability questions but it hasn’t happened yet. The Supreme Court bench-slapped CCA for doing it again. It was 2019 even. It’s not a well-settled issue, and it depends on what state you’re in and a lot of other extraneous factors.

I didn’t mean to get you off where you were headed to appeals. I thought that was a good place for that question.

That’s a particularly interesting topic of debate. Once a criminal defendant is sentenced, we get immediate appeal as of right to the Court of Criminal Appeals. If they affirm the sentence and the conviction, you get discretionary review to the Supreme Court, and if they deny that, you have parallel options for next. You have post-conviction federal habeas review and then some state PCR or Post-Conviction Relief avenues that you can pursue as well. Those are the things that will happen next.

As someone who follows this from the outside, the AEDPA gets talked about a lot in death penalty cases. Can you explain what that is and what role it plays in all of this?

It’s the Anti-Terrorism and Effective Death Penalty Act, which we call AEDPA. AEDPA was a 1996 law that was enacted right after the Oklahoma City bombing with Timothy McVeigh. It erected a lot of procedural barriers to bringing not even capital habeas proceedings but all habeas proceedings. I don’t do other criminal work. I know that it impacts a lot of criminal proceedings but in the habeas context, it forecloses the ability of a lot of capital defendants to raise legitimate and meritorious constitutional claims in federal court because there are so many procedural hurdles that you have to jump. The Supreme Court has been repeatedly interpreting all of these rules in the most inflexible and unyielding way that it possibly can. It gets harder to litigate meritorious constitutional claims.

You said there are parallel tracks. There’s a state track and a federal track. Do you have to follow one or the other? Is it a choice? Is there an advantage or disadvantage going in either direction?

It’s going to depend on the client in the case. Back to AEDPA, there is a state exhaustion requirement. If you have state claims that you can pursue, you need to be doing it in the trial court first. There are some ways that your federal habeas relief and your state post-conviction relief can happen at the same time, and you can have those things going on at the same time. It’s issue and defendant-specific whether or not you want to start initiating state or federal and win.

Post Conviction Death Penalty: If you have state claims you can pursue, you should do it in the trial court first. There are some ways like your federal habeas relief in your state post-conviction relief can happen and have those things going on simultaneously.

That leads to my next question. What are the issues, state versus federal? What are the differences and the types of things that you can raise?

There are a couple of things that AEDPA did that are particularly aggressive. The first is that there’s a one-year statute of limitations for you to be able to assert federal habeas relief, which is ridiculous for a number of reasons. The first is that if you’ve got other proceedings going, it’s unclear when the statute of limitations is told. The Supreme Court has rejected federal habeas relief. A guy’s attorney filed habeas papers three days after the deadline, and the Supreme Court said, “You’ve waived habeas relief entirely. You will not get it.”

There are also a ton of other procedural either court-made doctrines or other aspects of AEDPA that play into this one-year statute of limitations in the tolling concerns. Courts often either can’t tell or they have a huge struggle in figuring out whether a particular defendant in a particular case has brought their federal relief in a timely manner. In a bunch of cases, even some that are raising legitimate meritorious constitutional violations get tossed because of this strict one-year statute of limitations thing.

There’s a lot of it that’s wrong but the worst part is there’s Section 2254, which says, “The Supreme Court law that was established at the time of your conviction is the only law that matters. If the lower court’s decision is not unreasonable in applying that old law, then there’s no way for the federal court to give a prisoner relief.” It was out of California because California still has a death row even though they don’t use it. This guy got a federal evidentiary hearing to bring some new evidence about things that went wrong in his trial.

The Supreme Court overturned it not despite the fact that the lower court had refused to consider this evidence but because of it and said, “The state court record below didn’t have this information. The federal court can’t hear it. There’s no habeas relief here.” I don’t think that if you have legitimate evidence and you present it to a federal court, this constitutional violation took place. That deserves to be heard.

Habeas corpus used to be called the Great Writ for a reason. It is there to protect our constitutional rights and to hold the government accountable but AEDPA vitiates that, it’s a procedural labyrinth that’s nearly impossible. Even practiced, skilled, and longtime and full-time capital defense people struggle to navigate around AEDPA. The federal courts are struggling to navigate around AEDPA. At this point, it insulates state decisions from any federal review because there’s no way. It is unlikely that you will be able to successfully raise that on federal appeal.

Post Conviction Death Penalty: Habeas corpus used to be called the “Great Writ.” It is there to protect our constitutional rights and to hold the government accountable.

In particular, you have defense attorneys who are worried about potentially winning a trial or working on mitigating evidence and aren’t necessarily worried about what’s going to go in their writ applications long after the fact.

Evidence of innocence and evidence of constitutional violations come up unpredictably. There should be a way for someone who has been sentenced to death or sentenced under any criminal statute to say, “This was wrong, and this isn’t okay.” I don’t think that any legislation or court doctrine is cabining in that. I don’t think that’s justice.

Particularly, as we have seen things like an increase in scientific accuracy and junk science getting thrown out, people don’t find out until decades after they’re convicted, “Everything that you’re in here on is bogus evidence.” To not have a remedy for that seems crazy.

What was the driving force behind AEDPA? Why was it necessary in the view of the sponsors?

When the Oklahoma City bombing happened, it came after a couple of years of there being some discussion throughout the legal field that maybe death penalty appeals were taking too long because there are a bunch of constitutional issues that are litigated on that. There were a bunch of appeals. The process was taking longer, and there was some frustration with that.

It was also the Tough-on-Crime era. People were like, “Let’s make this faster. You should get reviewed but we should get this over with. This should be done.” When the Oklahoma City bombing happened, people acted more out of fear than great legislative principles, and AEDPA was born out of this misconceived notion that we must streamline these appeals.

I don’t disagree that we shouldn’t be leaving people on death row for decades. That’s wrong but I don’t think that means that we need to be sacrificing constitutional protections. Honestly, Congress and Bill Clinton who was President and then signed it into law said the same thing. If you look through the legislative history and the debate on AEDPA, even Bill Clinton’s signing statement said, “This will help make the death penalty faster while preserving independent federal review of these claims.” The courts have not been able to make that second part true because there isn’t an independent review anymore. It’s so incredibly restricted that it’s very tough to get.

Seeing the phrase, “Effective death penalty,” in the title of a federal statute is a fairly chilling thing, honestly.

It’s slightly jarring. AEDPA’s effects will be felt until the statute is repealed or made substantially better but it hasn’t streamlined appeals. It hasn’t made things faster. Sometimes courts hold onto these cases for longer than they have to, even frivolous ones because they have to solve the procedural stuff before they can issue anything about the merits.

There was a study in 2016-ish that went back and looked at all of the pre-1996 death penalty convictions and habeas proceedings and found that in 40% of them, the federal habeas proceedings were successful. After AEDPA was enacted, that number was down to 12%. If you’re in the Fourth, Fifth, and Eleventh Circuits, it’s less than 2%. That probably goes to the fact that I don’t think we’re applying the death penalty in a way that’s consistent or that meets the constitutional standard anyway. If you’re in one of these circuits, you’re less likely to get AEDPA relief even if you deserve it. That’s not a great way to do justice either.

I do want to talk a little bit about the issues with the application because you mentioned that it’s not applied consistently. When you say that, what do you mean?

There are a couple of things. There are racial considerations across the board but the most important one is the race of the victim. Across races of capital defendants, if your victim is White, you are more likely to be sentenced to death. It’s also a matter of geography. For one thing, we have only a limited number of states that have a death penalty or that maintain a death row. There are 27 states that have death penalty statutes. Five of them have governor-imposed moratoria. They’re not killing anybody. Two of them don’t have an active death row. There are only 21 jurisdictions that will have it.

That seems like an inconsistent application in and of itself but if you’re in one of the unluckier states. Texas is one of those. You’re more likely to be sentenced to death by the state not only because your state has it but because your state likes it. There was a study that said the closer you are to Harris County when you kill somebody, the more likely you will be killed by the state. I don’t think that’s great either. I don’t think that should work.

That was another question I had. Even within Texas, there are some county-level statistics that there are certain counties where you’re disproportionately going to be encountering the death penalty as a defendant.

Harris County is number one. Harris County, in and of itself, kills more people than any other death penalty state. Houston, more than any other death penalty state, also kills two times as many people as Dallas County, which is the number two county of that.

Those are sobering numbers.

A lot of stuff is sobering information because it’s not known. No one interacts with the death penalty until they have to. A lot of people don’t know this. They assume the death penalty goes to the worst of the worst, “It’s applied even-handedly. The rules are always followed. The procedure is sound. Courts can review it. It saves us money.” None of those things are true. Some of them are but it doesn’t save us money. It’s not any faster. There are a lot of preconceived notions about the death penalty that people have that don’t hold up to reality.

It is something that people don’t want to talk about and try not to talk about as much as they can because it is very uncomfortable on the basic philosophical level. As Todd and I know because we have based our entire careers on it, courts do make mistakes.

I’m a lot of fun at parties when I randomly bring up this.

“Who wants to talk about the death penalty?”

You need a button, “Ask me about AEDPA.”

I have an Abolish AEDPA cup, which I should have brought and drank from while doing this.

Do people try to defend the death penalty based on cost savings? I heard you say that it doesn’t save us money. What’s the rationale there?

It’s the number one thing that people will say as their defense when they talk to me about the death penalty stuff and they support it, “We shouldn’t be paying to house somebody for life if they have killed someone, and they’re dangerous.” It’s three times more expensive in Texas for a defendant to be sentenced to death rather than life. If cost savings is what you’re going for in your defense, you’re losing it on that point alone.

That doesn’t even necessarily take in all of the extra security costs. You’re on death row in solitary confinement, and you will have to be taken everywhere by a guard. There are more staffing costs. Transportation costs are higher. Lethal injections, when you can even get them, are $1,300 per prisoner. We’re wasting a lot of money on this.

A couple of states have spent upwards of $300 million to execute less than 150 people. It was North Carolina and maybe Ohio or Idaho. Some of these states are spending an outrageous sum of money on a system. If you start talking to people about the death penalty and you dig into it, people are squishy about it even if they say that they’re in support of it. We’re spending a lot of money on a thing that it doesn’t seem the public wants. Not every state has it. Public opinion is at historic lows for the death penalty. That’s an interesting consideration too.

In doing the work you’re doing on this pro bono death penalty work, what areas stand some chance of success in light of all the hurdles that you’ve mentioned? There were hurdles it seems before AEDPA was ever enacted, and now AEDPA, as you’ve explained, has made it even more difficult. What are the areas in which folks who are volunteering their time like you are in these cases can get excited about the chance of making that difference of helping someone get relief from a death row sentence?

One area that’s a glimmer of hope like this is the capital integrity units that are coming around in Texas. Not every county has them but it helps a lot with actual innocence claims, and it helps a little bit if there are other constitutional violations. I have a client whose case is with a capital integrity unit investigating a Shaken Baby syndrome claim. When you get the capital integrity unit involved, and the DA’s office is working on this thing together, there are fewer county-level objections to it. You can find a way to get a new sentencing trial for someone who deserves one without having to go through the higher-level rigamarole.

A lot of cases having to do with mitigating evidence that was presented during a sentencing phase have found some success because the court has said, “You can give us anything that might convince a jury to give you mercy. The jury not only has to hear it. They have to know that they can apply it.” There have been a lot of changes in state law. We’re talking about how to introduce mitigating evidence, and some of them didn’t meet constitutional muster. Those cases end up with some success because you can argue, “The jury wasn’t able to consider this wealth of mitigating evidence that suggested that I didn’t deserve to die.” There’s a way for that to be adjudicated because we have had this wealth of Penry claims. There has been a lot of success there too.

I was starting to wonder. It would seem like it would be a noble cause regardless of any real prospect for success. You would have to have some level of hope that you’re going to be making a difference. Maybe fighting against the AEDPA machine is its own reward.

One thing that’s rewarding regardless of outcome is that you get to interact with your client and spend some time with them. They enjoy being treated as people, getting to have a visitor, and having someone to write to. When you’re also their attorney, it’s also like, “This minor prison thing happened to me, and it’s not okay but my grievance procedure isn’t done. Is there anything you can do to help?” I can go down to the prison and talk to some people. I care about my guys. Being able to do even the littlest thing makes their life situation and conditions of confinement better, gives them an outlet to talk to somebody, and makes them smile. They make it worth it, even aside from the larger principle.

You’re providing humanity where it so often gets left behind.

You’re physically getting to go and visit them on death row.

It has been a minute since my last prison trip, honestly, because I had an incident with a guard where I needed my client to give me a bunch of documents. He put them all together and told him ahead of time what he needed. There’s now a system. Securus has given the guys tablets so they can message me now instantaneously but this is pretty new.

This was a couple of years ago. It was in 2021. There was no way for my client to send me information all at once. I needed him to get me some documents. I told him ahead of time. He prepped it, put it in a folder, and gave it to the guard to give to me. To back up a little bit, prison visitation for death row is non-contact. Over the glass, you pick up the phone, and you can’t touch the guy. You’re in technically separate rooms.

He handed it to the guard to walk over to me. She started flipping through it. She goes, “These aren’t legal papers. I’m going to take them now. They’re now state property.” He’s getting upset. I am banging on the glass, “Pick up the phone. Say exactly what I say to her. When I say it to you, you’re going to say it to her and then you’re going to send her to me.”

I had that guard walk over to me. I had to give an oral argument to a law enforcement officer, “This is legal. These are legal papers. I need them. You as a state actor do not get them. I’m going to make this your problem if you don’t hand them to me.” That was the last time I was there. I’m sending other people because I don’t think they liked me very much after that incident. I had a meeting with TDCJ upper levels that involved talking about this. I do get to go every so often. I do need to plan a next visit.

One thing I want to talk about when you’re talking about all of this that is a misconception is if you prevail in habeas, it doesn’t mean your client walks out the door.

The way that it works most of the time is that you will either get a new sentencing trial where you might get the death penalty again or a life sentence. More often than not, the sentence gets reduced to life without the need for a second trial but under no circumstances are any of these guys walking out into free society again. It’s not an option. The Texas law has life without parole or death. Those are your options.

Some capital defendants who were sentenced before that update or before Texas enacted life without parole could technically get life and be eligible to get paroled out but those are few and far between because not enough guys were convicted long enough ago for that to apply to them. If you get relief, you’re not leaving prison. You just aren’t going to be killed by the state.

Where in the process do you come in? What is the work that you do?

I have been spending most of my time on some state habeas petitions. We had a case that we brought to the Supreme Court on a direct appeal. I’m a pinch hitter for whichever aspect of my client’s cases is happening at the moment. I don’t proclaim to be an expert on much of this stuff. I know the things that I know when I get thrown into a situation and then learn as much as I can about it. A pinch hitter is the best way that I can describe it. I play roles as I’m needed as the cases are moving forward.

Is it typically post-direct appeal or is some of a direct appeal as well?

I had a direct appeal but most of my work is post-conviction.

One of your clients that has been in the news that you mentioned to me that I didn’t know about is Gabriel Hall, which is an interesting case. To the extent you can, do you want to talk about that a little bit?

Gabe was in Brazos County Jail. Comedy Central and Jeff Ross wanted to do a prison roast. They sent out a request to the American Jail Association or something asking if any jail wanted to host it. Brazos County was the only one that said yes. They brought Jeff Ross in. They encouraged all the inmates to participate. They didn’t tell their counsel. They didn’t tell anybody to check with counsel.

Gabe had an attorney at the time. He had not gone to trial on his capital charge yet and had a no-contact directive from his attorney to the state. When Jeff Ross came in, the staff escorted him around but they let him talk to inmates with staff supervision. Jeff Ross walked up to my client while he was eating lunch and then started ribbing him as a comedian does.

There’s a seventeen-minute-long video of my client where he doesn’t cry about his crime and is asked about it. The comedian asked a joke about it, and my client responded to it. There were a couple of racial comments made about him. There are also a bunch of other guys around. Everyone is trying to act tough and cool in front of Jeff Ross.

As soon as the interview is over, the quartermaster runs straight to the warden and goes, “They got Gabriel Hall on the footage. We need it.” They subpoenaed the footage from Comedy Central, and they were like, “We’re going to give it to the state and the defense.” They only gave it to the state. Gabe’s attorneys found out about it super late on the eve of a hearing. They tried to get it excluded. That did not work.

At the sentencing trial, the state used a video of my client engaging in a joking situation with a literal comedian to say, “This guy is not sorry. He deserves to die. Look at him. He’s making light of it. He doesn’t deserve mercy.” That’s what we took up to the Supreme Court, “This is a state actor because you let him do state functions. You encouraged all of these inmates to participate despite the fact that my client hadn’t had a directive saying, ‘Don’t talk to him without me.'”

No one is saying that this prison roast shouldn’t have happened. Whether it’s advisable is a whole other thing but I’m not saying we shouldn’t do special things for inmates. What I am saying is the best thing to do would have been to let him talk to his counsel. Give them a meaningful opportunity to advise him, “If you participate, the state might be able to use things that you say to kill you.” None of that happened for Gabe. Unfortunately, the Supreme Court did not grant cert. We are working now on some post-conviction relief for him too.

It’s one of those fact patterns. I can imagine you see some crazy fact patterns.

That’s putting it mildly.

I can only imagine. On this show and generally among the appellate bar, we have talked about pro bono work being a good opportunity for young lawyers to get not only good brief writing experience but also potentially oral argument experience. Has that come to pass for you? Have you had much courtroom work that’s come out of this? Is it mostly on the papers?

For the pro bono stuff, it’s mostly on the papers but that’s a feature of how my pro bono situation is structured. I do know a lot of people who do pro bono work through legal lines. Texas Appleseed may be one of them too. There are a bunch of organizations that will help connect young attorneys to these opportunities. I know that a lot of those encourage attorneys to get some stand-up courtroom experience through this stuff. There are a bunch of areas of law where you can do this pro bono work as well.

If you are so inclined and you have a passion project or a thing that you’re willing to work on for free, talk to your firms about whether or not they will let you build that in so then you can make your stand-up opportunities if you want to. I do have to credit my firm for its commitment to my pro bono work because I spend a lot of hours doing it, and my boss is like, “You can do as much of it as you want as long as it doesn’t interfere with your work for us. We encourage you to keep doing your pro bono work to keep your active death row docket.” Having the support of my partners is great. I’m at least one case study. If you want to do a pro bono thing, you can get your firm on board, and then you get to do it.

The way that you managed to turn the Bracewell 100 hours of pro bono into that specialty and then carry that forward when you change firms says a lot about both firms honestly. Being able to carry that into a new position and having that attitude from the folks you work with is cool.

One thing I want to make sure people appreciate why we’re putting this in the pro bono context is you get appointed counsel during your trial and direct appeal, and then after that, they’re on their own. All of this post-conviction stuff is either out of pocket for somebody or pro bono.

You do in Texas have a right to counsel for your post-conviction proceedings. It’s Article 11.071. It’s only if you’ve been sentenced to death. In your habeas proceedings, you do have a right to counsel. The thing is though if you’re getting an appointed attorney, they might not have the resources or the time to dig into developing a factual issue, uncovering a constitutional claim, or being able to have pro bono people who care about the issue or the law school clinics too.

The University of Texas and the University of Houston in particular have some good clinics that are doing this that encourage people to spend time, dig through this record, do outside research, and see if there’s anything we can do to help this person in this situation. That’s the requirement that’s needed. It takes hundreds of hours to do the post-conviction work.

I’ve never been in a capital trial but I’ve read some numbers on how much time that takes too. Even clemency proceedings take hundreds of hours. If we had a better-funded system for defending some of this stuff, it would take a lot of the rut out of it but for now, having people donate their time and help on this issue is incredibly meaningful to all the people that you’re helping.

If someone is interested in getting into the death penalty or post-conviction type of work, where would they go to look for that?

There are a couple of organizations in Texas that would probably be a good start like Texas Defender Service and Texas Coalition to Abolish the Death Penalty. There are a couple of capital habeas units. All of them need help whether it’s legal or advocacy work. Going to them and asking, “I’m around. I’m interested. What can I do? What do you need?” will get you some of the way there. Talk to practitioners. If anybody wants to reach out to me, I would be happy to point you in that direction.

I’m pretty limited to a Texas knowledge base because all of my clients are here now. I had two clients on federal death row and don’t anymore. I’m pretty Texas-focused but I’ve got a good friend of mine who’s me but she’s in Florida. I’ve got a couple of counterparts in Virginia, DC, and a couple of other states that still have them. Getting in touch with someone who’s in this community will get you some of that information too. If anybody is interested in helping, we want to bring you on board. We want you on our side. Reaching out to almost anybody in this industry will probably give you some starting ground for that.

My last substantive question before we wrap up is this. What was it that changed your perspective about this? You came from a place that was pro-death penalty, and that was your view. What was the tipping point? Was there a tipping point rather than the whole thing in slow progression?

I honestly think the best way to describe it is the whole thing in slow progression. I grappled with my feelings and thoughts on the death penalty throughout my whole time at the Northwestern clinic where it was like, “I support the death penalty but maybe not in this circumstance. Maybe we should change this aspect of procedure, and maybe that would make it better for me.”

It got to the point where trial discrepancies are numerous and abundant in these problems. Conditions of confinement are a thing that I’m not okay with. There are a bunch of issues with all of the available methods of execution. There are so many discreet broken parts that I got to the point where I was like, “Fixing even most of them doesn’t get me where I feel comfortable letting the state kill people with my dollars and in my name. There’s too much to fix. You would have to bring the system to the ground for me to be okay with it.” I got to that point where I was like, “I don’t support it for this. I don’t support it here.”

It was the middle of my 3L year. My professor asked. He was like, “Do you still support the death penalty? I’m curious.” I was one of the first people in the clinic ever to come in and say on the first day, “I support it. I’m interested in this thing.” He asked me toward the end, “Is that still true?” I was like, “Absolutely not. You did a good job of not only teaching us how it works but showing us that this is how it should work. This is how it was applied.” That’s what got me over it. Sometime at the end of my 3L year, I knew but it was the slow progression the whole way that put it over the top.

McKenzie, this has been very interesting and fascinating to hear about. I can speak for Jody when I say I applaud you for what you’re doing and your dedication to it. It’s a great example to other young lawyers on how to find something that’s yours and do something that your firm can encourage and get behind that does contribute in a significant way to pro bono efforts for people who do need it. Thanks for being with us. I know you know because you’ve tuned in to our show before that we like to ask our guests as we’re getting ready to part for a tip or a war story to cap us off. Do you have something that you would like to share?

I’ll give you a tip. I don’t have the most efficient typing fingers. I’ll sometimes mean to type a word and type the same wrong word instead of that word every time. I have a list of words that I commonly mistype. As part of my final checking process, I do Control Fs for those and check to make sure that the right word is there. If you, like me, sometimes struggle with some of that stuff, a word list is very helpful.

I also have a list of my partners’ preferences on things. One loves two spaces after a period. One refuses to file anything with the title of the document underlined. One likes to have a draft on the signature block while we’re drafting. One is like, “Type my name there. Who cares?” Having a list of, “These are the preferences for each of these people,” is helpful because as an associate, part of your job is to make your boss happy. Your boss is also your client. Having a cheat sheet for making sure that these formatting or very tiny minor things that your partner likes or done in a certain document has served me well.

Those are great tips.

I may borrow the commonly mistyped words.

There are 5 or 10 that every single time I mess up. I know what it is in my brain, and my fingers cannot connect with it.

I have so many of them, and they’re weird words. They come up, and having a list is very helpful.

Thanks very much for being with us.

Thanks for having me on. I can’t tell you how much I enjoyed talking about this issue and introducing it to people who might learn some of this stuff for the first time and possibly be interested in it, look it up more, or have their minds changed. This is a unique and awesome opportunity to get to talk to a bunch of people about this issue I care about a lot. Thank you so much for having me on.

I’m glad. I learned a lot. McKenzie said she likes appellate trivia. I have five questions about the Galveston Court of Appeals before we go. I’m kidding.

I do not have any Galveston Court of Appeals knowledge. I’m very sorry.

You’re not going to win the gift card.

I was looking forward to that.

We appreciate it.

Thank you.

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About McKenzie Edwards

McKenzie Edwards is a trial lawyer who handles complex litigation and appellate matters across a variety of industries. McKenzie is a commercial generalist who provides diligent analysis and thoughtful advice to the Firm’s clients, and a strong, clear voice in the courtroom on their behalf.

McKenzie also maintains an active pro bono practice, which includes working on the appellate teams for capital defendants on both federal and state death row.

McKenzie graduated cum laude from Northwestern University Pritzker School of Law, and obtained her B. S. from the University of Texas at Austin. Prior to joining the firm, she worked for Bracewell LLP in Houston, and served as a judicial clerk to The Honorable Eva Guzman of the Supreme Court of Texas.