© 2013 The Texas Lawbook.
By Natalie Posgate
Staff Writer for The Texas Lawbook
There is no dispute: complex civil litigation cases can last for several years. But the case Layne Kruse of Norton Rose Fulbright just completed lasted for more than a decade – the longest-running case of his career. The fine print? The endeavor wasn’t part of his antitrust and competition practice; it was a fight to remove an inmate from Death Row.
Last week, Kruse and his Norton Rose Fulbright team prevailed when the Texas Court of Criminal Appeals affirmed a Harris County district court’s opinion to swap the inmate’s death penalty for life in prison. The decision ended 12 years of litigation that required more than 6,000 pro bono hours.
The monumental legal fight asserted the rights of people with mental health issues who are charged with crimes. In this instance, the inmate claimed he was mentally retarded.
The legal battle continued for so many years that some attorneys initially on the case have changed jobs or been promoted from associate to partner since the litigation began.
Kruse acknowledged the firm could have easily declined the case, but he said he felt an obligation to contribute to the righteousness of the criminal justice system.
“It’s very time consuming and expensive for the law firm,” Kruse said, adding, “I do believe this is a part of what we do as lawyers to pay back to society.”
Other Norton Rose Fulbright attorneys who contributed to the case included Jonathan Franklin, the firm’s head of appellate; Houston partners Darryl Anderson and Brett Young; Houston associates Sumera Khan and Geraldine Young; and former Houston partner Chris Watt, who left the firm earlier this year to help launch Reed Smith’s first Texas office.
Kruse remained the only one of the four original attorneys to see the case through to its conclusion. One of the originals, Annie Jacob, was an associate at Norton Rose Fulbright but later left the firm to go in-house with Bayer HealthCare Pharmaceuticals. The other two, Pat Bishop and Richard Carrell, are retired counsel at the firm.
The case began in October 1997, when a jury found Mexican national Virgilio Maldonado guilty of capital murder for the killing of a man during a November 1995 robbery. He was sentenced to death. The Texas Court of Criminal Appeals affirmed the conviction and death sentence on direct appeal in 1999. Maldonado filed his initial writ application in the trial court.
Norton Rose Fulbright’s involvement began in 2001, when U.S. District Judge Nancy Atlas of Houston asked Fulbright to represent the inmate for a habeas corpus proceeding. The firm agreed.
Since then, the firm has filed proceedings in state and federal district courts, the U.S. Court of Appeals, the Texas Court of Criminal Appeals and the U.S. Supreme Court.
The Mexican government also got involved by filing proceedings in the International Court of Justice in the Hague and the Inter-American Commission on Human Rights, as well as bringing witnesses from Mexico to testify in Houston.
The district court denied Maldonado’s initial writ application in 2002, but that same year, a landmark U.S. Supreme Court decision strengthened Maldonado’s case.
In Atkins v. Virginia, the Supreme Court held that individuals with mental retardation are constitutionally ineligible for the death penalty under the Eighth Amendment. In 2003, Maldonado, who would later score an IQ that established mental retardation, filed another writ application in the trial court with a claim of intellectual disability.
Proving this, Kruse explained, was difficult.
In the first trial, the Court of Criminal Appeals sided with the state after its expert witness, psychologist George Denkowski, tested Maldonado’s IQ and determined that it was too high to classify for metal retardation.
However, in 2011, the Texas Board of Examiners of Psychologists investigated Denkowski’s testing methods because of complaints by other psychologists and defense lawyers that they were unscientific and unethical. The Board and Denkowski reached a settlement, and Denkowski’s license was reprimanded and he was forbidden of conducting intellectual disability evaluations in future criminal cases.
After the settlement, Kruse said his team asked the court to reevaluate the writ application, and in April 2012, the Court of Criminal Appeals allowed the trial court to reevaluate its initial findings.
Months of preparation and several weeks of expert testimony later, the trial court in Harris County recommended relief be granted in December of last year. On June 18, the Court of Criminal Appeals affirmed the district court’s opinion. Instead of facing death, Maldonado will now serve a life sentence.
Though Atkins v. Virginia provided key strategy for strengthening the case, Kruse said the legal team also relied on the Vienna Convention on Consular Relations.
The Vienna Convention requires the U.S. to notify arrested foreign nationals of their right “without delay” to have their country’s embassy or consulate notified of the arrest. In 2003, Mexico filed a lawsuit against the U.S. in the International Court of Justice claiming the U.S. had failed to notify 51 Mexican nationals, including Maldonado, of their Vienna rights to notify consulate.
The next year, the IJC ruled the Mexican nationals were entitled to review and reconsideration of their convictions and sentences – a point Kruse said his team brought up in federal court.
Kruse said that it didn’t matter whether Maldonado was guilty of capital murder, because his job was to represent his client, not judge him.
“I don’t want to get in a situation where people take these cases and suddenly realize, ‘Oh gee, I really don’t like this person.’ That’s not what we’re here to decide,” Kruse said. “Lawyers are required for both sides at all times. That’s the role we play.”
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