REPLY BY JAMES W. VOLBERDING TO RESPONDENTS RESPONSE

No. 57,060-03 IN THE COURT OF CRIMINAL APPEALS AUSTIN, TEXAS IN RE DAVID DOW and KATHERINE BLACK REPLY BY JAMES W. VOLBERDING TO RESPONDENTS RESPONSE TO THE HONORABLE COURT OF CRIMINAL APPEALS: NOW COMES, JAMES W. VOLBERDING, Attorney for Danielle Simpson in his federal habeas litigation, and respectfully replies to the Respondents response to the Court s show cause order. INTRODUCTION I am James W. Volberding, an attorney in Tyler. I represented Danielle Simpson in his federal habeas corpus litigation. The purpose of this reply is to clarify some of the points contained in the Respondents response to the Court s show cause order. I received a copy of the Respondents response January 11. BACKGROUND I was appointed in 2000 to represent Danielle Simpson to prepare and file his Article 11.071 application for writ of habeas corpus. I filed his application December 2002 and

continued to litigate Simpson s habeas application until it was denied by this Court June 30, 2004. Ex parte Simpson, 136 S.W.3d 660 (Tex. Crim. App. 2004). In August 2004, another experienced capital attorney and I were appointed to prepare and file Simpson s federal petition for writ of habeas corpus. In June 2005 we filed a federal habeas petition presenting thirty-nine claims for relief. The first claim was a fully preserved and exhausted Batson claim. When the district court denied habeas relief June 2007, but granted a certificate of appealability on Simpson s Atkins claim, I sought review by the Fifth Circuit. In August 2008, the Fifth Circuit remanded for an Atkins evidentiary hearing. After appointing experts, the district court conducted a contested Atkins evidentiary hearing in December 2008, and the following month, January 2009, issued a report deciding against Simpson on his Atkins claim. See Exhibit A. The next step, therefore, would have been to return to the Fifth Circuit, file briefs addressing the district court s denial of Simpson s Atkins claim, and then await the Fifth Circuit s decision on the Atkins claim as well as the remaining unresolved pending claims. At Simpson s instruction, however, I filed on his behalf a motion to remand for a hearing to determine whether he was competent to waive all remaining appeals and proceed to execution. See Exhibit B. This is called a Mata v. Johnson hearing, after the Fifth Circuit case outlining the procedures for such waiver requests. The Fifth Circuit granted the motion and remanded with instructions for the district court to conduct the Mata hearing. See Exhibit C. The district court appointed a qualified expert approved by both sides who examined Simpson and found him sufficiently competent to waive appeals. The court conducted a hearing June 9, 2009 and heard argument and discussion by both sides, as well as testimony by the expert and Simpson, both of whom the court questioned directly. On June 12, 2009, the district court issued a report finding 2

Simpson competent to waive his appeals which it forwarded to the Fifth Circuit. See Exhibit D. On August 17, 2009, the Fifth Circuit accepted the report and ordered Simpson s appeals dismissed. See Exhibit E. He was scheduled for execution November 18, 2009. CLARIFICATION OF RESPONDENT S RESPONSE I have a good relationship with the Texas Defender Service and the attorneys and professors who are dedicated to fighting for the lives of Texas death row inmates and opposing the death penalty. The attorneys with the Defender Service and associated lawyers routinely provide hours of labor and talent helping Texas lawyers, including me, who are trying to save their clients from execution. For instance, several lawyers associated with the Defender Service and the University of Texas Law School provided the critical analysis and briefing which led to the grant of certiorari and remand by the Supreme Court, and the later remand by the Fifth Circuit for re-sentencing, for one of my clients, Ronald Chambers, currently the longest serving death row inmate. Likewise, throughout Danielle Simpson s litigation, Defender Service attorneys and associated lawyers provided valuable advice, research and briefing. There are statements in the Respondents response which must be clarified because they give the impression that I did not represent Simpson well or maintain my files adequately. A. Clarification of circumstances of Simpson s waiver. To avoid any impression that I pressed Simpson to waive his appeals, or pursued waiver despite his wishes, or that there was a point at which Simpson was not represented by counsel, it is useful to be aware of the following. For two years Simpson had told me, in person and in writing, that he wished to waive his appeals. I persuaded him to wait and pursue his appeals because there always remained a chance we might succeed. 3

After the denial of his Atkins claim in a contested federal hearing, Simpson told me bluntly and repeatedly that he wanted to waive his appeals and instructed me to take the necessary steps. Before doing so, I spoke with experienced lawyers to ascertain my ethical obligations and the required procedures. To test him, I asked Simpson to complete and return an affidavit written in the form of precise questions with signature lines under each question to indicate whether or not he understood. He did so. See Exhibit F, Aff. Simpson. Further, to verify Simpson s intentions, I and another experienced lawyer met Simpson in person March 3, 2009 to assure that we understood his reasons for wanting to waive appeals and to explain the consequences of a decision to waive all appeals. At the June 9 federal district court Mata hearing, the court and I explained to Simpson the consequences of waiver and confirmed that he had objectively valid reasons for wishing to do so. Moreover, by this point Simpson had been examined by three psychologists. Even the reports and testimony of our expert, while finding that Simpson met mental retardation standards, established a basis for believing that Simpson had sufficient competency to make such a decision. At the June 9 hearing my co-counsel and I made two points clear on the record. First, after repeatedly confirming this beforehand with Simpson, I told the federal district judge that we were not attempting to abuse the system we had no intention of returning to the court at the last moment to try to withdraw Simpson s waiver. The decision was final, which was what Simpson wanted. Second, I confirmed on the record that I opposed Simpson s request to waive his appeals and told the court and reaffirmed to Simpson that I recommended that he press his appeals, which might succeed. On June 30 an attorney with the Defender Service met Simpson to discuss his waiver, with my permission. Simpson signed an affidavit stating that he had changed his mind. See Exhibit G. 4

When the Respondent brought to my attention that Simpson had changed his mind and wished to withdraw his waiver, we had several conversations. I explained that because my co-counsel and I had represented to the district court unequivocally that we, as attorneys, would not pursue this course of action, it was appropriate that my co-counsel and I withdraw and allow the Defender Service to take over. The Respondent drafted a notice that Simpson wished to withdraw his waiver and proceed with his appeal, and for my co-counsel and me to withdraw. I reviewed and filed the motion July 6, attaching Simpson s affidavit. See Exhibit G. On July 15, 2009 I drove to see Simpson to discuss his intentions. Without disclosing the details of our conversation, he indicated there had been a misunderstanding and that he in fact did wish to continue with his waiver of appeals and to proceed to execution. Again, to test him, I asked him to complete another written affidavit and to sign his name after each question I asked him about his understanding and the consequences of his intentions. He also wrote a narrative to the Fifth Circuit explaining in his own words his reasons for waiver. On July 22 I supplied Simpson s affidavit to the Fifth Circuit with a motion to withdraw our previous requests. See Exhibit H (with Simpson affidavit). On August 12, the Fifth Circuit granted the motion to dismiss Simpson s appeal. See Exhibit I. Simpson s execution was promptly set for November 18. On August 26, the Defender Service sought to intervene on behalf of Simpson s mother and sisters, who opposed Simpson s execution. See Exhibit J (Fifth Circuit docket sheet). The Fifth Circuit denied September 21. Id. In mid-october, Simpson sent a letter to the Defender Service, which the Service interpreted as a request to renew his appeals. I did not interpret the letter that way. I wrote Simpson seeking clarification. He did not respond. 5

On October 28 the Respondent drafted a motion to substitute counsel which I signed and filed in the Fifth Circuit November 2 to permit the Defender Service to take over. See Exhibit J (docket sheet). The Fifth Circuit denied the motion November 4. See Exh. K. On November 5 and 7, I received from the Defender Service two statements signed by Simpson asking me to turn my files over and informing Simpson s desire that I cease representation in favor of the Service. See Exhibit L. On November 9, 2009, I provided Simpson s files to two interns who drove to Tyler to get them, and filled their car with the boxes containing Simpson s trial transcripts, his trial attorneys files and notes, pleadings and documents pertaining to the state litigation, and separate boxes containing the pleadings and records from the federal litigation. The purpose for this explanation is to show that at all times I was well aware of my obligations to Danielle Simpson and the courts and I fulfilled them. B. Danielle Simpson s litigation files were appropriately maintained. The Respondents correctly state that their representation of Simpson did not begin until November 6, 2009, when Simpson signed a written statement that he wanted the Defender Service to take over his representation. See Exhibit E. Prior to that date, I was his lead counsel for all matters and had custody of his files. Simpson s files were appropriately maintained: Simpson s federal pleadings were indexed and tabbed in separate Acco binders, divided between the district court and the Fifth Circuit. Copies of the indices are attached. See Exhibits M and N; Simpson s state court pleadings were similarly indexed and tabbed in Acco binders. See Exhibit O; His expert witness files were segregated and labeled in three-ring binders which constituted our trial notebooks for the federal evidentiary hearing. See Exhibit P. The trial transcripts were in several boxes which the interns and I retrieved from storage, along with files of the trial attorneys. Although contained in separate boxes, the trial attorneys files were not indexed or organized by my 6

office and this may have caused confusion when examined by the Defender Service attorneys; Other sundry documents and extra copies of pleadings and records were contained in boxes, which were not marked or indexed, and probably were indeed confusing to the attorneys. Simpson s litigation files were appropriately and adequately maintained, however they were made for my purposes and not others. The only files I needed for the remainder of litigation were the federal pleading files, the recent correspondence files, the Atkins expert reports, the federal transcripts, and portions of the trial transcripts. I think that what the Respondents intend to convey is not that the files were incompetently compiled, but that they requested and received many boxes of documents, transcripts and records nine days before execution, and that it took some time to dissect and reconstruct the unfamiliar and complicated records into the format and structure they preferred. This is understandable and would naturally require time. C. Clarification of Simpson s Batson Claim. The first and lead claim in Simpson s federal petition for habeas corpus was a fully preserved and exhausted Batson claim: Claim Number 1: The State s Peremptory Strike Against Venireman John Willis Earl, An African-American, Violated the Equal Protection Clause of the Fourteenth Amendment. Simpson v. Dretke, No. 1:04-CV-485 (E.D. Tex. Jun. 28, 2005) (Simpson Pet. Habeas Corpus). Similarly, the same Batson claim was presented to the Fifth Circuit in Simpson s motion to expand his certificate of appealability, and was, as mentioned, still pending when the Fifth Circuit granted the waiver request and dismissed. See Simpson v. Quarterman, No. 07-70011 at p. 35 (5th Cir. Sep. 17, 2007) (Applicant s Motion to Expand Certificate of Appealability). 7

All other Batson claims had been procedurally defaulted, which would have required additional uncertain litigation to overcome the default barriers. COORDINATION OF SIMPSON S REPRESENTATION In my opinion, the Respondents acted entirely properly at every stage, certainly where I am concerned. The Texas Defender Service is staffed by some of the most knowledgeable and capable capital litigation attorneys in the country. They had my permission to contact Simpson any time they wished, and I made it clear to Simpson and the Service that I welcomed any assistance which could be provided, as the Service and its associated attorneys have done so well before. With only a few days remaining, the Respondents undertook the difficult task of attempting to block Simpson s execution. I appreciate all they attempted to do for Danielle Simpson. CONCLUSION These clarifications are provided for assistance to the Court. I am available to the Court as it may require. Respectfully submitted this 14 day of January 2010, _ JAMES W. VOLBERDING SBN: 00786313 110 North College Avenue Suite 1850 Tyler, Texas 75702 (903) 597-6622 (903) 597-5522 (fax) e-mail: volberding@attglobal.net 8

CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of this pleading has been delivered this 14 day of January 2010 to: Mr. David Dow by the following means: _X X By U.S. Postal Service Certified Mail, R.R.R. By First Class U.S. Mail By Special Courier By Hand Delivery By Fax before 5 p.m. (to District Attorney) By Fax after 5 p.m. By email to Mr. Dow and to Assts. Attorney General Thomas Jones and Georgette Oden. JAMES W. VOLBERDING 9