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Raphael Holiday was Put to Death, and His Lawyers Should Have Tried Harder to Stop It

Gretchen Sween was hired a month before Holiday was executed. This is what she saw.

On Nov. 18, 2015, at about 8:30 p.m., the state of Texas declared Raphael Holiday dead while I sat alone sobbing in a parked car. He was executed for the deaths of three children, including his own, in a house fire.

I am a civil litigator in private practice. I began representing Raphael a month before his execution, after his lawyers sent a letter informing him: “This marks the end of work for your appeals I regret.” The letter acknowledged the option to submit “a clemency petition to the Texas governor,” but they did not recommend that because, in their view, “a clemency petition just gives an inmate false hopes.”

Raphael Holiday on October 28, 2015.

Raphael Holiday on October 28, 2015.

Although the letter made clear that his lawyers were “not going to file further appeals for you,” it also stated that Raphael was free to write to law firms or public interest organizations to see if he could find someone else willing to take on his case. The lawyers even promised to cooperate and provide his file if he could find anyone to do the work.

So Raphael sent out desperate letters from death row — to lawyers as far away as California — trying to find someone willing to help him.

Meanwhile, in August, Texas set an execution date.

Because his efforts to obtain new lawyers on his own had failed, Raphael wrote the following to the court on Sept. 14: “Your honor, I beg you to consider new appointment of effective counsels to my case. They have refused to help me and it is a disheartening conundrum I am not fit to comprehend.”

His lawyers filed a response, opposing their client’s request. They admitted that they did not intend to pursue clemency on his behalf, writing, “given political realities, there is no chance at all that a clemency petition would be granted.” At this point, Raphael was on his own.

Raphael wrote a second letter to the district court on October 15 expressing his growing sense of desperation. Shortly thereafter, I agreed to take on Raphael’s case pro bono for the limited purpose of preserving his right to obtain new appointed lawyers. As soon as I filed a notice to initiate an appeal on his behalf, Raphael’s appointed lawyers responded by offering to withdraw from the case — but only if I would take on the entire representation pro bono.

After I explained that that was not what I had been retained to do, they reopened litigation in the district court, asking the judge to order me to take over the whole case pro bono and to dismiss the appeal. When that effort failed, decorum was largely abandoned. Raphael’s lawyers alternatively threatened to pursue sanctions against me if I did not dismiss the appeal and proposed that I ghost-write a clemency petition, again pro bono, for their signature. In a matter of days, they reversed course, promising the district court that they would put together a clemency application after all. By then, the deadline was a few days away.

On the first page of the clemency application they threw together, they twice misreported Holiday’s execution date as February 18, 2015, a date that had long passed. Most of the application is a description of the gruesome details of the crime, lifted virtually verbatim from a 2006 court decision. The only original material was a required victim-impact statement, a short paragraph that read like a knife thrust in the client’s back: “It is not possible to address the impact of this crime on the family of the children killed,” they wrote. “Neither Raphael nor his attorneys have had any communication with them.”

But a person impacted by the crime was Raphael’s mother and grandmother of one of the children. His appointed lawyers had been in communication with her. Mrs. Nickerson is part of the larger untold story of extreme poverty, degradation, and virtual torture that characterized Raphael’s childhood. That story had not been fully investigated.

Because, in my view, the clemency application was a sham, I pushed forward with the appeal to try to secure meaningful representation for my client.

While the clemency application was still pending, Raphael’s appointed lawyers wrote to the appellate court that, in their “informed professional belief the clemency has next to zero chance of success” — in a filing opposing a motion to stay the execution of their own client. The appellate court’s one-page order simply noted that the district court had not abused its discretion in denying Raphael’s request for new lawyers.

With only two days left before the execution date, the fight was taken up to the Supreme Court. There was reason to hope the Court might, just might, review the case. A recent decision had emphasized that death-sentenced indigents are entitled, under federal law, to appointed counsel to pursue “meaningful” access to clemency as well as other proceedings. Congress, the Supreme Court reasoned, “did not want condemned men and women to be abandoned by their counsel at the last moment and left to navigate the sometimes labyrinthine clemency process from their jail cells.” Subsequent cases had emphasized that when a conflict of interest arises between a death-sentenced indigent and his appointed lawyers, the district court is “compelled” to appoint substitute counsel.

But the day of the execution, the Supreme Court declined to review the case or to stay the execution. Justice Sotomayor, however, issued a statement expressing her view that Holiday’s appointed lawyers had abandoned him, that the district court had abused its discretion by refusing to appoint new lawyers, and that the clemency application the appointed lawyers had submitted “likely would have benefited from additional preparation by more zealous advocates.” She concluded by speculating that “this Court, unlike a state court, is likely to have no power to order Texas to reconsider its clemency decision with new attorneys representing Holiday.”

Just before the lethal injections were administered, Raphael thanked his loved ones and the warden.

Following the execution, a member of the press reported that one of Raphael’s appointed lawyers had insisted: “I’d walk through hell with a can of gasoline with my clients to protect their interests.” The lawyer made this remark in the context of questions about his commitment to a man who, that very night, had been executed for deaths caused by a gasoline fire.

Having a meaningful clemency application was important to Raphael Holiday because he felt his side of the story had never been told. It wasn’t that he was deluded about the odds of relief. But a clemency application was his last chance to get his story out. Because no one undertook any real investigation in conjunction with his federal appeals or his clemency application, we cannot know the full story of how three children, whom Raphael always insisted he loved tremendously, came to be burned alive. But here’s what we do know based on what he’s said, his mother’s recollection, and undeveloped clues lurking in the judicial record — which could and should have been developed to argue that this wasn’t a crime worthy of a death sentence. Raphael was born poor and black in a small town in southeast Texas in 1979. His mother was then 15. His biological father was not part of the story, and his mother eventually married someone else. Raphael’s step-father and mother beat him routinely because, in their experience, that was how things were done. Raphael was expected, from a very young age, to take care of his two younger half-brothers and was beaten when he fell short. He repeatedly ran away.

By age 15, Raphael succeeded. He was taken in by a friend of a relative in another town. She started giving him drugs in hopes of harming him so that he could get “sick checks.” He was in and out of school and had trouble holding a job.

Then he fell in love with a white girl. She already had two kids from two different men, and Raphael wanted to help raise those kids. They moved into a trailer together and she was soon pregnant. The baby was born early and with a hole in her heart. When Raphael held her, she reached a hand up toward the sky. So he decided to name her “Justice.” He was 19.

That year, his girlfriend’s parents offered them a place to live. It was a cabin deep in the woods on property they owned. It was rickety and old, but Raphael was excited about having a place of their own. His girlfriend didn’t like it there, though. Raphael felt her grow distant. One day, he came home and she was there with her mother and demanded that he leave. And although his girlfriend got a protective order against him, she kept trying to see him, later telling others that he forced himself on her. He suspected she was sleeping with someone else. He went to confront her and caught her in bed with another man. That man threatened Raphael and then sent word through mutual friends that he would kill Raphael if he came around again. Raphael was then accused of sexually assaulting his girlfriend’s eldest child, an accusation that enraged him. (His mother provided me with a recent criminal background check of the man with whom Raphael’s girlfriend had taken up; it shows that he was convicted of sexually assaulting a minor the same month Raphael was accused; but this was not uncovered or developed while Raphael was still alive.)

Raphael decided to confront the new boyfriend. He got a gun, went to the house, but found only his girlfriend there with the three girls. They argued. His girlfriend’s mother came over, then a male relative arrived, who Raphael says pointed a gun at him. Raphael pulled out his gun and pointed it at his girlfriend’s mother. The other man dropped the gun, the girlfriend ran off, and Raphael went with his girlfriend’s mother to the main house.

She got large containers of gasoline, they went back to the cabin, and she started pouring gas all over, as she admitted at trial, because he still had a gun. He then noticed that, although his girlfriend was gone, the three little girls were still sitting there on a couch. He went to get them out of the house. Before he could reach them, the house exploded. He got out, helped the the girlfriend’s mother out of a window, and asked her about the kids. She said they were all dead. He tried to get back inside, but the place was engulfed in flames. He panicked, ran to his car, and sped off. He was soon stopped by the police. He was 20 years old.

We Are Witnesses

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He told the deputy what had happened. The deputy did not believe Raphael should be charged with a capital crime — so much so that he testified to that effect during the sentencing phase of the trial.

But he was charged with, and convicted of, three counts of capital murder. Meanwhile, the sexual assault accusation had been dropped by Child Protective Services after he voluntarily submitted to a DNA test. That test was not made part of the record at trial. Instead, the accusation was.

His girlfriend’s mother, who poured the gas all over the house, testified at trial that she saw Raphael bend over just before the fire started. That had not been part of her previous statements to investigators. He had wanted to testify at trial that he never intended to kill those kids and that he did not start the fire, but his lawyers advised against it. One day, his trial was interrupted when the man his girlfriend had been sleeping with burst in and made what was later characterized as a “terroristic threat.” He was arrested, but his role in the story was not fully investigated or explained to the jury or to any court.

Raphael spent 14 years in prison, mostly on death row in Livingston, Texas. He kept hoping his lawyers would help get his story out, but they said they were “bound by the record.”

When Raphael was executed, I did not know, and still do not know, most of his story.

The day after the execution, I dragged myself into the office and thought about the death penalty lawyers who had inspired me during this month-long ordeal. They, in stark contrast to Raphael’s appointed lawyers, commit to the Sisyphean task of defending their clients.

They do so not because they expect to win many legal battles. They mostly lose. As Dick Burr, who has been toiling selflessly in this arena for 40 years said to me, “We do this work to fight against the caste system in America. The lowest of the low are the poor who have been convicted of capital crimes. Most people are not interested in these people until after it becomes clear that they are actually innocent.” The toil is worth it to lawyers like Burr, not because of, but in spite of, the odds of losing.

“The winning,” he explained to me, “comes from seeing the difference you can make in taking the time to build relationships with these people whom society has cast off. If they get past the initial stage of anguish and depression, they begin to read, to think, to build connections. Being part of that redemption is what makes this work so rewarding.”

When I got to my office, I found an envelope on my chair. It was from Raphael. The card has a picture of bright yellow and red flowers on the front with the word “generosity” printed in bold letters in the corner.

Inside he had written: “Thank you for your help. I cannot thank you enough. God bless you always.”

Gretchen Sween is a lawyer in private practice in Austin, Texas and a member of the adjunct faculty at The University of Texas School of Law.