Saturday, January 23, 2010

Harold Comer Part I: Fiscal Foibles

Ed Wood is frequently credited as the worst movie director of all time. Responsible for such movies as Plan 9 from Outer Space and Glen or Glenda, Ed plumbed the depths of mediocrity with a panache unmatched to this day. While many have tried to be as bad as Ed, few have succeeded.

Ed’s story is well told in the movie Ed Wood, with Johnny Depp portraying the B movie master. In one of the great lines from that movie, Ed declared: “Why if I had half a chance, I could make an entire movie using this stock footage.”

With that in mind, I do hereby declare Harold Comer, Hank Skinner’s defense attorney, to be the Ed Wood of the legal profession. This honor is bestowed not only because of Mr. Comer's ineptitude in his defense of Hank Skinner, but also because of Comer's practice of creating legal motions out of stock footage. Even before Comer was officially appointed to represent Hank Skinner, he filed 21 motions on Hank's behalf. Each of those 21 motions was copied verbatim from a Texas capital murder defense manual, with a scanner, and then signed.

Ed Wood would have been proud.

In honor of Harold Comer's newly bestowed title of The Ed Wood of the Legal Profession, I will be running a brief series of posts about his career as a defense attorney. I begin by detailing his fiscal foibles. In the spirit of Ed Wood, I will create this post primarily by cutting and pasting. In this case, though, I will extract my work from a quality product, rather than from some grainy government film. I will cut and paste from an appeal prepared by Hank’s skilled and dedicated appellate attorney, Rob Owen.

So hang on. Here we go.


Harold Comer was a close political supporter of the trial judge and was himself the former elected district attorney for Gray County. Comer had been run out of office for embezzlement of public funds and drug abuse. As district attorney, Comer prosecuted Mr. Skinner for two of the felonies that were used against Mr. Skinner at the sentencing phase of his trial.

There is nothing in the record to show that Mr. Skinner was told by Comer or the trial judge of the deleterious effect this conflict would have on his case or that he had a right to a different lawyer. Throughout the trial, counsel failed to present evidence or conduct cross-examination that would have exposed the weaknesses in the state's case. Yet, by the time the trial ended, the court had awarded Comer one of the largest fees ever collected by a court-appointed lawyer in Texas - enough to help Corner payoff some of his obligations to the Internal Revenue Service for filing false tax returns. Comer's conflict of interest was never explained to, or knowingly waived by, Mr. Skinner.

On May 2, 1994, Comer met with Judge Sims to discuss his fee. The 31st Judicial District Court only had $25,000 budgeted to pay for the services of all of the attorneys who represented indigent criminal defendants that year. Comer and Judge Sims knew that the county commissioners would have to greatly increase the funding for that item to compensate Comer for his work in Mr. Skinner's case.

On May 9, 1994, Judge Sims signed an unusual "Payment Agreement" that guaranteed Comer an hourly fee of $100 plus expenses with no cap. Written contracts for the 60 professional services of court appointed lawyers are almost unheard of in Texas. In virtually all cases, the fee for services performed outside of the courtroom is at least 25% lower than the hourly payment for court appearances. Formal caps on total fees are common and informal caps are usually enforced in practice. None of these limitations were contained in Comer's Payment Agreement.

On May 17, 1994, Comer collected a payment for the first of many interim bills that he submitted. Comer charged the county $3,452.87 for the services that he performed between January 10 and February 24, 1994, before Judge Sims formally appointed him. Included in that statement was a fee of $450 for merely copying from a form book the 21 motions that he filed on February 9, 1994. The law prohibited any compensation for any of the services that Comer performed prior to his formal appointment, but Judge Sims signed his voucher.

On May 22, 1994, the first negative story about the cost of Mr. Skinner's defense appeared in a local newspaper. The County Judge warned that the cost would "far exceed" the amount budgeted for all indigent criminal cases that year. She suggested that it might be necessary to borrow the money or use other funds that were designated for indigent health care and a hospital.

In an effort to make the payment of his fee more palatable to the public, Comer announced to the press that he "voluntarily" used $2,000 of his first check to reimburse Gray County for costs that it incurred in a whistle blower law suit as a result of his mishandling of public funds when he was district attorney.

Comer collected about $80,000 in interim payments for attorney fees. The County Commissioners had to raise local taxes to pay him. No other attorney in the history of Texas has been paid as much money for representing an indigent defendant in one criminal case as Comer collected for defending Mr. Skinner.

Several of the finest capital defense attorneys in the State could have been hired to take the case at that price. There were at least ten skilled criminal defense attorneys in the nearby cities of Amarillo and Lubbock with significant capital trial experience who were paid only $20,000 to $40,000 to represent indigent capital defendants in comparable cases at about the same period of time.


That wasn’t so hard. Maybe some day Johnny Depp will star in the the movie Harold Comer.

In Part II of this series, I’ll cut and paste a chilling tale of Comer’s close ties to both the judge and the prosecutor who judged and prosecuted Hank Skinner.

Friday, January 22, 2010

Living on Borrowed Time

February 24, 2010 -- Today is the day Hank Skinner was originally scheduled to be executed. Sometime after 6 PM Texas time, the Great State of Texas was hoping to strap Hank Skinner to a specially designed table, clean the crook of his elbow with an alcohol swab (to prevent infection later), and insert an IV line. They were planning then to inject a sequence of sedative and lethal chemicals, so that Hank Skinner would pass from this earth.

Meanwhile, District Attorney Lynn Switzer withholds copious and probative DNA evidence of Hank's actual guilt or innocence. She may also be withholding exculpatory results from a rape kit and fingernail scrapings.  The rape kit and fingernail scrapings were, afterall, sent long ago for testing, yet the results remain a secret to this day.

Rick Perry, the man who initially appointed Lynn Switzer to her current position, watches the polls.

Texas' plans for today were put on hold due to a clerical error and an astute attorney. As for our role in this unfolding tragedy, we have been ineffectual. We have failed to persuade Rick Perry, or Lynn Switzer, or the Texas Board of Paroles and Pardons to release the DNA for testing. We have been unsuccessful in bringing any noticeable incremental attention to this case.

We are not even gnats to be swatted. We are, at best, but a small fragment of a gnat to be swatted. Our impact has been as we predicted, but refused to accept. So now ...

We can continue with our current plan.

We can give up.

We can try something else.

Wednesday, January 20, 2010

The Wisdom of a Clerical Error

In Texas, a clerical error has shown more wisdom than have the leaders of that state. The 31st District Court, while steadfastly refusing to order testing of copious and probative DNA evidence, has ordered a one month delay in Hank Skinner's execution because of concern over the filing date of the original death warrant.

It is now time to RELEASE THE DNA evidence for testing by an independent agency. It will cost the State of Texas nothing and, if Hank Skinner is in fact guilty as Governor Perry and Lynn Switzer insist, there will be no further delay in Hank's execution.

Tuesday, January 19, 2010

The Skeptical Juror and The Trial of Cory Maye

Update 05/31/2010: Work has resumed, the book is about 75% written and 1/3 edited.  Hank Skinner is waiting for the Supreme Court to hear his writ sometime this fall. End of April has passed, but we'll be publishers of more than two books by the end of the year. We promise!

Details regarding our effort with respect to this case will be available soon.  We can tell you this at the moment: the book is approximately 50% complete. Work has been put on hold as we join the effort to stop the execution of Hank Skinner.  We hope to have the The Skeptical Juror and the Trial of Cory Maye on Amazon by the end of April.

Relative to the information publicly available, there are surprises to come.  Stay tuned.