Five years for freedom: How two Texas attorneys helped get a man off death row and out of prison.

Manuel Velez was spending his first months in solitary confinement in Huntsville when attorneys began reviewing the trial that put him on death row. The Dallas firm of Carrington Coleman had heard concerns from the Capital Punishment Center at the University of Texas School of Law that Velez might be mentally impaired. So the firm, which has a strong pro bono program, sent an email to its four dozen attorneys to see if any were interested in taking on the case. Lyndon Bittle and Neil Burger, as well as several others, volunteered their time. Once they got the file and began reading the trial transcripts, they realized there was much more to the story.

A construction worker from Brownsville, Velez had been convicted of and sentenced to death months earlier for killing his girlfriend’s one-year old child, Angel, who Velez had found Oct. 31, 2005, on the couch with troubled breathing. At the hospital, Angel was declared brain dead and then removed from life support. The autopsy revealed that blunt force trauma had fractured the boy’s skull in two places and resulted in a subdural hematoma—bleeding that surrounds the brain. Both Velez and his girlfriend were charged in Angel’s death.

Before the trial, Velez had waited in the Cameron County Jail for three years, seldom visited by his court-appointed attorneys who assured him that they were working to build his defense. But when the trial started, the prosecution’s medical expert testimony reigned supreme and the defense counsel called no medical experts and spent little time on cross-examination.

These were the first hints to Bittle and Burger that the five-day trial had not been handled well, and they even began to wonder if Velez could in fact be innocent. The team of pro bono attorneys—which also included lawyers with Lewis Roca Rothgerber in Denver, Colorado, as well as Brian Stull with the American Civil Liberties Union—worked for about five more years to investigate the case. They found pediatrician records suggesting that Angel’s head had been swelling and he had been ill before Velez moved in with his girlfriend. The attorneys met with medical experts, including a neuropathologist who had examined Angel’s brain as part of the autopsy and believed that the child’s fatal injuries had likewise happened while Velez was away from Brownsville working in Memphis, Tennessee. And they obtained witness reports and the mother’s own admission that she had abused Angel.

After an evidentiary hearing in December 2012, the 103rd District Court Judge Elia C. Lopez ruled in favor of granting Velez a new trial, and in 2013, the Texas Court of Criminal Appeals agreed. His sentence had been transferred in 2012 from death to life in prison after the Court of Criminal Appeals found the prosecution’s sentencing expert testimony to be faulty.

Fearing that another jury wouldn’t believe his story, Velez decided to plead no contest to a lesser charge of recklessly injuring a child for failing to report the mother’s abusive actions. (The mother had taken a plea deal, testifying against Velez, and was sentenced to 10 years for pleading guilty to a lesser charge. She served five and was then deported to Mexico.) On Oct. 8, 2014, Velez walked out of the Huntsville prison with a smile and hugged the lawyers who helped set him free.


(Above photo: Manuel Velez speaks with news media, surrounded by the pro bono team of attorneys, after being released from prison.)

 

The Texas Bar Journal interviewed Bittle and Burger about their experience working on this case. What follows is an excerpt from this conversation. Additional criminal law stories can be found in the December 2014 issue of the Bar Journal, available online.

 

Can you talk about the first signs that the case had been handled poorly?

Bittle: The first significant signs were as soon as we got the transcripts of the trial. It seemed like after every witness, the defense counsel would ask two or three questions at most. There were many times that he would say, “No further questions.” And even our law students who were clerking and reading that transcript would say, “What do you mean you have no further questions? I could think of ten without knowing anything about the facts.” At that point we didn’t know if he was innocent or not, but it didn’t take much to conclude that he had not had a fair trial.

Burger: In reading the transcripts, you could tell that he had woeful representation. And then in meeting with our client, he was able to raise enough issues to where there was enough circumstantial evidence on how everything happened—from how often he met with his attorneys, the mother getting a deal for testifying against him, the lack of evidence that was presented—that it made you think, Wow, this guy might actually be innocent.

What was your reaction to this realization?

Burger: The idea that an innocent man can be convicted and sentenced to death kind of makes you question the system. Just how clear-cut it can be that an innocent man was convicted of capital murder and sentenced to death is surprising.

How do some lawyers—who might or might not have set out to do good work—arrive at a place where they provide inadequate counsel?

Bittle: That’s a hard question to answer. In this situation, the lead defense counsel was not inexperienced. He had been defending folks in trials for many years. In some of the stories—he passed away in the course of our habeas appeal—he was referred to us as a gunslinger who kind of shoots from the hip. I don’t think he was prepared for this kind of investigation; he presented it as a whodunit question.

Burger: He said in his opening statement, “This is not a technical case.” But in fact it is a highly technical case.

At some point, didn’t Velez’s original defense counsel admit that they hadn’t argued the case as they should have?

Bittle: Part of our investigation was talking to defense counsel. I had one meeting with Mr. Villareal before he passed away. At that point he wasn’t prepared to say that the representation was ineffective. But he understood the process we were going through, and he cooperated in getting us their files.

The second chair who assisted Mr. Villareal was his nephew. By the time he had read the material that we uncovered, he testified at trial, and by that time, acknowledged that the [original] trial had not been handled the way it should have been handled. It took a lot of courage for him to stand up and acknowledge the problems.

Burger: His testimony was extremely emotional in that he clearly recognized that they did not present the defense as they should have. I think he is probably an excellent lawyer, but his uncle was in charge and made all the decisions.

From when you first met with Velez in 2009, why did it take until January 2012 to submit the habeas petition?

Bittle: There was a lot of work to do. We were allowed one extension of time under the statute, which we accepted and almost everybody does. So we filed it on the date that the statute required us to file it. We did a lot of work in those few years. We traveled to several places in the country to talk to doctors, one of whom had been involved in part of the autopsy and others who were reviewing the records and giving us their expertise. We had investigators who talked to lay people, from family members to anybody who either knew Mr. Velez and his character or knew about the mother.

Burger: The case had actually been transferred from one court to another so there were several rounds of trying to make sure the record was complete. And once that was completed, that’s when our deadline was set. Like Lyndon said, we did get one extension, but it might have been 90 days.

What was the most challenging aspect of the case?

Bittle: I felt like I was getting a degree in forensic neuropathology. To understand what had happened and to even understand what the doctors were telling us and to communicate with them, I had to learn more than I ever thought I would have to deal with. It was also part of the rewarding part of it.

Burger: One thing that we had to keep in mind constantly was that our client was sitting in solitary confinement on death row. And although we were all working and engaging experts and learning pathology, we had to make sure that our client kept faith and knew that we were working.

How long did it take Velez to start trusting you?

Burger: When I met with him in January of 2009, I sat and talked with him for about six hours, and I think those six hours were longer than he had spoken with an attorney about his case, combined, for the previous three years. He was on board from the beginning when I was able to explain the resources that we had, the two law firms, the attorneys’ interest in it, and what we were doing. It was a task that we calendared out—someone has to go see him every couple weeks, every couple months—to make sure we were engaged with him and that he was up to date on what we were doing.

How would you describe Velez?

Bittle: He was incredibly patient, in my mind, over the years. Considering his situation, obviously it helped that he was confident that he had folks on the outside working for him. That gave him a faith that things could go well. He’s friendly, easy-going. He likes to buy candy for his kids and nephews and nieces. He likes to barbecue. He’s not a complicated man.

Burger: There was a sense of bewilderment that he could be convicted and sentenced to death for something he didn’t do. I don’t think it ever sunk in. He didn’t understand how it could happen.

Explain the decision to have Velez plead no contest to the lesser charge of reckless injury of a child, of which he was eventually convicted.

Bittle: He pled no contest and that was important to him because he did not want to admit to having caused the child any harm. We had been working on talking to the DA, trying to convince that office to drop the charges altogether. We were able to convince the DA to drop the death penalty, but he was still insistent that we would go forth and have a new trial on capital murder that would risk a jury finding Mr. Velez guilty. There was still a dead baby. And that’s a tough case for jurors to deal with. As much as we were confident in the evidence, the downside of not succeeding at trial was high. His kids were growing up, and both of his parents are quite elderly and had some serious illness during the time that he was in prison. I think a large part of his decision was that he wanted to be out to be sure he was with his parents.

Burger: What you were choosing was the risk of life in prison without parole based on 12 jurors or pleading no contest and immediately being released. However confident we were in our case and he was confident in our case—he was reluctant to accept anything other than innocence—the risk of life without parole was too great.

I understand that you did not take this case on with the intention of winning awards, but now that you’ve received the Exceptional Service Award from the American Bar Association’s Death Penalty Representation Project—what does it mean to you?

Bittle: I’m proud of the award, and I’m proud of the work that our entire team put into it. It also was very humbling. While we were at the awards ceremony, we were there with other lawyers who had spent many, many, many more years than we have and had even more difficult situations. So one of the things that I have come away with is an incredible amount of respect for other volunteer lawyers as well as others who devote their entire time to these cases. I’m proud but I hesitate to elevate what we did more than it needs to be. It’s the kind of work that lots of people should be doing.

How was that drive down to Brownsville to take Velez home?

Bittle: Five lawyers—Neil and I, two people from Denver, and one lawyer from the ACLU—and Manuel drove down in a van. And it was glorious. Waiting for him to come out was agonizing, because we were never sure until we saw him that it really was going to happen that day—and then to be able to hug him on the outside and talk to him.

Burger: We had a nice toast to his freedom with some Dr Pepper, which he had said over the years was what he wanted on his release. And just driving back, being able to stop off the highway and walk into a restaurant and eat good food. I think at one point he turned to me and said, “This is kind of weird.”

Have you kept in touch with him? Do you know how he’s doing?

Bittle: We’ve had some contact with him. We know he’s settling in. He’s moving into a new house and will be living with his mother. He was able to buy a used van, which will make it easier for him to get around and get a job. Fortunately, he has a good support system and he has family. Both the law firms are maintaining contact with him to provide assistance as we can even though our legal work is done.

Now that it’s all over, do you think this case impacted you?

Bittle: The day that he was released was the best day of my career, and I don’t anticipate having another one like that. It’s given me a disturbing perspective on our judicial system, but at the same time given me a lot of pride in lawyers who go the extra mile to take it on.

Burger: The character of our client and how appreciative he was of our efforts really struck me. I had Easter dinner at his family’s house one year. They appreciated what we were doing—and their hope continued throughout.

 

 

Texas Counties to Receive Additional Appropriations for Indigent Defense

AUSTIN – The Texas Indigent Defense Commission (TIDC) adopted a budget that allocates $35 million to the indigent defense formula grant program. The budget reflects a $15 million increase over the previous year thanks to legislative action to ensure that all dedicated funds collected specifically for indigent defense will again be available for that purpose. As a result, most counties will be eligible for a special formula grant disbursement in the new fiscal year that begins October 1. Counties in compliance with key provisions of the Fair Defense Act will be eligible to apply for formula grants. "We look forward to getting these dedicated funds out to counties in the coming months so that they can be put to work for indigent defense as intended," said Commission Chair Sharon Keller.

The Commission awarded discretionary grant funds to 21 Texas counties totaling more than $10 million dollars. Among these are nine counties who will be collaborating to support implementation of a web-based indigent defense process management system initially developed by Bell County with through grant funding from the Commission. The system is designed to improve representation and compliance with the Fair Defense Act through enhanced transparency, accountability and efficiency. These nine counties will join a collaborative effort through the Conference of Urban Counties TechShare Program to provide ongoing support, maintenance and development of the system. Commissioner and Tarrant County Judge Glen Whitley said, "The application of technology has opened new opportunities to understand, manage and improve our indigent defense systems. These grants will help counties reap the benefits of innovation."

Finally, the Commission awarded a total of $628,108 to Austin County, Dimmit County, Kleberg County, Smith County, and Willacy County for extraordinary indigent defense expenditures in a case or series of cases. To be eligible for extraordinary grant awards, counties must demonstrate the extraordinary nature of the case or series of cases and direct litigation costs for indigent defense services are the only allowable expenditures.