2015.97: Volberding and Kretzer Just. Give. Up.

I have heard—and I believe it—that the worst thing about being under a death sentence is knowing that that date is coming, facing a date certain, watching the explicit number of days you have left become smaller and smaller and smaller until.

It’s unnatural.

So death penalty lawyers fight for every minute of time, for every chance they might find something that might get their clients another minute of time:

From here on, the lawyer’s job is to be creative.  Investigate again. Search for the really unlikely.  Float whatever.  And put together the clemency pitch.  Because, as we say in this business, once in a while pigs do fly.  And because what the hell.

People fight because as long as we are fighting there is hope, and without hope we might as well be already dead. Lawyers fight because that’s what we do.

But that’s not what happened in Raphael Holiday’s case. Raphael Holiday’s lawyers, Wes Volberding and Seth Kretzer, stopped fighting.

Well, they didn’t stop fighting. They just stopped fighting for Holiday, but they fought to keep Holiday and lawyer Gretchen Sween from fighting:

Volberding and Kretzer opposed the motion and sent Sween a letter threatening to seek sanctions if she did not stay away from their client.

I’d love to know what the basis is for those sanctions. Mr. Holiday had the right to talk to other lawyers, and seek other counsel. Ms. Sween had the right to talk to Mr. Holiday, and to help him seek other counsel. I can think of no reason for threatening sanctions.

Maybe they had a reason to stop fighting for their client. Why did they stop fighting for their client?

“We decided that it was inappropriate to file [a petition for clemency] and give false hope to a poor man on death row expecting clemency that we knew was never going to come,” Volberding said in a telephone interview.

Volberding and Kretzer took away hope. They decided to take away hope. They decided it was time for their client to just give up and agree to be dead. They made decisions that were not theirs to make.
Here‘s the full discreditable story.

Jeff Gamso writes about it. Scott Greenfield writes about it. I don’t have anything else to say, except that if the story is accurate, Wes Volberding and Seth Kretzer are a disgrace to the bar.

7 responses to “2015.97: Volberding and Kretzer Just. Give. Up.”

  1. I know Seth. He’s a good guy and a good lawyer. That being said I can’t understand refusing to file the petition in this case, especially if that’s what the client wanted.

  2. My guess would be money, that even if someone gets paid to file a doomed clemency petition it’s not going to be worth that person’s time (as judged by the advocate, not the condemned) to do so and so they will need some other reason to do it. But I’m also guessing there is some (very modest) monetary benefit associated with being counsel of record to the very end, and so the filing against being replaced.

    • When I first read your comment I thought, “that’s someone who doesn’t know death-penalty lawyers. It’s not about the money.” But then a colleague with more experience in the area than I have voiced the same opinion.


      Judiciary guidelines call for federally appointed counsel to be paid for clemency petition, but I have reason to believe that Volberding and Kretzer had never filed a clemency petition before.

  3. After refusing to do file additional briefs, how can Messrs. Volberding and Kretzer really say they continue representing Mr. Holiday? I’m more troubled by them interfering with Mr. Holiday’s ability to find new counsel than originally refusing to file additional briefing.

    As a point of comparison, Texas allows us to file Anders briefs when we believe there are no appellate issues in a case. Despite that rule, I cannot imagine the attorney who is intending to file an Anders brief threatening a grievance against a second attorney who reasonably believes there is a grounds for appeal (that the first attorney either did not see or did not agree with).

  4. I am just reeling over the idea you don’t file something (not frivolous) because the person with discretion might (or will even likely) say no. Wonder what else wasn’t filed on his behalf because someone might say no?

    I have slaughtered a lot of trees, but once in a while it pays off. When it does, I am glad to have wasted the paper and inspired false hope.

  5. All the more reason why the CCA’s year-long suspension of David Dow was such a contemptible ordeal. When you take the Dows of the world off of the death penalty roster, the Raphael Holidays of the world end up with lawyers who refuse to file for clemency, even when the client demands it.

    Another thing of note – the lawyers talk about not wanting to promote “false hope” in their client. Yet they wrote him a letter essentially promising him that the cavalry (Texas Defender Services and “other firms”) would be there to assist him in filing for clemency. And that they’d cooperate. Then when that lawyer did come along, they made the process as difficult as possible. They promoted hope for the client, then extinguished it themselves.

    And their patronizing bullshit about this client grates on my nerves. Death row or not, he’s a human being and a man, and you as his lawyer shouldn’t be looking at him and saying, “Poor little guy, thinking you might live. Let me help you by extinguishing that hope.”

    News flash, fuckers – the client’s making a rational choice. When your chances of living are 0-percent when you file nothing, even a 0.0000000000000001-percent chance of winning a clemency petition is better. He gets to make the choice on whether he wants to live out his last days with “hope” (even false hope) or not. These people have no business defending death row clients.

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