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.