Mimesis Law
4 March 2021

Remember the Alamo (When Texans Could Fight?)

Dec. 23, 2015 (Mimesis Law) — A couple of weeks ago, I wrote about Robert Leslie Roberson, III, a guy the Great State of Texas hopes to be putting to death one day soon.   That’s the Robert Leslie Roberson, III whose lawyers had a conflict of interest but who fought tooth and nail to ensure that no unconflicted lawyer would be allowed to step in and represent him.

Along the way, I told, in passing (and linked to other blogs with more information) about Raphael Holiday.  Holiday had the same lawyers Roberson did.  In Holiday’s case, they abandoned him.  Told him that they wouldn’t file any more motions and wouldn’t seek clemency.

You don’t really have much chance of any relief, they told him. We know you want us to keep trying to save your life, but it wouldn’t be fair to you to keep trying.  It’d just give you false hope.

As with Roberson, they refused to withdraw. As with Roberson, they fought tooth and nail to ensure that efforts to remove them and replace them with lawyers who would actually try to represent Holiday would fail.  As they did.  Texas got its wish;  Holiday was executed last month.

Consider that as background. This is about aftermaths.  It’s not about what Texas did to Holiday or hopes to do to Roberson.  It’s not about Wes Volderbing and Seth Kretzer who . . . . No, I’m not going there again.

This is about the rest of us, those who toil in the trenches, those who fight for their clients (capital and otherwise), those who understand that it’s not about us.

This is about Frank Blazek and William F. Carter. And it’s about Gretchen Sween.  And then, just maybe, it’s about the rest of us who toil in the trenches, who fight for our clients (capital and otherwise) not because we expect to win but because it’s what we signed on to do.  Signed on when we agreed to be retained or accept the appointed.  Signed on, really, when we took the oath that gave us the right to practice law.

And note that word practice.  We’re always learning.  That’s never done.  So this, this is another lesson.

One more time, then, Wes Volberding and Seth Kretzer abandoned Raphael Holiday. They declared they would not file anything else for him after the berobed folk in D.C. refused to hear their petition.

We’re done, they said. All that would be left just doesn’t have enough of a chance for us to bother with.  It’s for your own good.  So you can prepare to be killed without harboring any false hope.  Aren’t we swell looking out for you that way?

Holiday was not moved by their generosity of spirit. He begged the courts to give him new lawyers who would help.  The courts refused.  But before it was over, as it got closer and closer to the last minute, it began to look like . . . .

You’ve seen the old movies where the cavalry comes riding over the hill at the last minute. Here’s Judge Elsa Alcala, of the Texas Court of Criminal Appeals (dissenting – I’ll get to that).

In the late morning on November 18, 2015, the day of Holiday’s scheduled execution, which was four work days after the Fifth Circuit refused to appoint new federal counsel for Holiday, Blazek and Carter, who had represented Holiday at trial, filed a “motion to withdraw or modify” the order scheduling his execution because “additional proceedings [were] necessary on a subsequent application for a writ of habeas corpus and to afford [him] an opportunity to have meaningful access to clemency proceedings.”

Holiday was killed that night, which is all you need to know about how successful Blazek and Carter were, but points for the effort.

They weren’t alone. The Fifth Circuit’s refusal, well, that was Gretchen Sween.  She’s an appellate lawyer.  A civil lawyer.  She doesn’t do criminal work, certainly doesn’t do capital work.  But she understands that you don’t let someone go to the gurney when his lawyers have abandoned him and urged the court to refuse his request for new lawyers.

It was mid-October, just over a month before his scheduled murder, that Holiday wrote the court again “expressing his growing sense of desperation.” That’s when Sween stepped up.  She tells the story.

Raphael wrote a second letter to the district court on October 15 expressing his growing sense of desperation. Shortly thereafter, I agreed to take on Raphael’s case pro bono for the limited purpose of preserving his right to obtain new appointed lawyers. As soon as I filed a notice to initiate an appeal on his behalf, Raphael’s appointed lawyers responded by offering to withdraw from the case — but only if I would take on the entire representation pro bono.

After I explained that that was not what I had been retained to do, they reopened litigation in the district court, asking the judge to order me to take over the whole case pro bono and to dismiss the appeal. When that effort failed, decorum was largely abandoned. Raphael’s lawyers alternatively threatened to pursue sanctions against me if I did not dismiss the appeal and proposed that I ghost-write a clemency petition, again pro bono, for their signature. In a matter of days, they reversed course, promising the district court that they would put together a clemency application after all. By then, the deadline was a few days away.

Their clemency application was, of course, shit. They recounted, in detail, the crime, lifting the description almost word for word, from a nine-year old court decision,.  They had the execution date wrong.  Twice.

The only original material was a required victim-impact statement, a short paragraph that read like a knife thrust in the client’s back: “It is not possible to address the impact of this crime on the family of the children killed,” they wrote. “Neither Raphael nor his attorneys have had any communication with them.”

There are, of course, other victims.

But a person impacted by the crime was Raphael’s mother and grandmother of one of the children. His appointed lawyers had been in communication with her. Mrs. Nickerson is part of the larger untold story of extreme poverty, degradation, and virtual torture that characterized Raphael’s childhood. That story had not been fully investigated.

Sween appealed “to try to secure meaningful representation for my client.”

While the clemency application was still pending, Raphael’s appointed lawyers wrote to the appellate court that, in their “informed professional belief the clemency has next to zero chance of success” — in a filing opposing a motion to stay the execution of their own client. The appellate court’s one-page order simply noted that the district court had not abused its discretion in denying Raphael’s request for new lawyers.

Again, you know how this went. On November 18, they killed Holiday.

Despite Sween’s efforts. Despite Blazek and Carter.

As I said, this isn’t really a post about what went on before. Despite the look of things, I’m not here interested in Wes & Seth.  This is about the others.  The ones who fought.

So I need to go back to Judge Alcala. As I said, she was dissenting.  Not from the decision to let Holiday get killed (that’s a whole other complicated tale where, again, she had a dissent).  No she was dissenting from last week’s decision of the rest of the judges issued last week.  The one that includes this order:

NOW, THEREFORE, Frank Blazek and William F. Carter are hereby commanded to appear and show cause, in the manner and within the period specified in the Order of December 16, 2015, why counsel should not be sanctioned by the Court of Criminal Appeals for failing to adequately justify the untimely filings.

Forget the merits. Yeah, there are rules.  They said they had a good excuse for not stepping in until the end.  Holiday had litigation going to get new counsel.  There wasn’t need for desperate heroics yet.  The cavalry didn’t need to mount up and ride yet.

Not good enough said the court. The same court that prohibited David Dow from trying to save his clients’ lives there for a year after he, they say, blew a deadline.

Which is, as they say, what you get in Texas for riding into the . . . . They honor the 180 or so who died holding the line against Santa Ana’s troops down there. Remember the Alamo, they cry.

Gretchen Sween, again.

On Nov. 18, 2015, at about 8:30 p.m., the state of Texas declared Raphael Holiday dead while I sat alone sobbing in a parked car. 

* * * * *

The Charge of the Light Brigade



Half a league, half a league,
Half a league onward,
All in the valley of Death
Rode the six hundred.
“Forward, the Light Brigade!
Charge for the guns!” he said.
Into the valley of Death
Rode the six hundred.


“Forward, the Light Brigade!”
Was there a man dismayed?
Not though the soldier knew
Someone had blundered.
Theirs not to make reply,
Theirs not to reason why,
Theirs but to do and die.
Into the valley of Death
Rode the six hundred.


Cannon to right of them,
Cannon to left of them,
Cannon in front of them
Volleyed and thundered;
Stormed at with shot and shell,
Boldly they rode and well,
Into the jaws of Death,
Into the mouth of hell
Rode the six hundred.


Flashed all their sabres bare,
Flashed as they turned in air
Sabring the gunners there,
Charging an army, while
All the world wondered.
Plunged in the battery-smoke
Right through the line they broke;
Cossack and Russian
Reeled from the sabre stroke
Shattered and sundered.
Then they rode back, but not
Not the six hundred.


Cannon to right of them,
Cannon to left of them,
Cannon behind them
Volleyed and thundered;
Stormed at with shot and shell,
While horse and hero fell.
They that had fought so well
Came through the jaws of Death,
Back from the mouth of hell,
All that was left of them,
Left of six hundred.


When can their glory fade?
O the wild charge they made!
All the world wondered.
Honour the charge they made!
Honour the Light Brigade,
Noble six hundred!


H/T Hilary S who sent me the links to the court’s decision and Alcala’s dissent

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