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Erick Davila’s trial judge has taken on a new role in his life—she’s now the prosecutor seeking his execution.
But Davila says Sharen Wilson‘s career move presents a conflict that violates due process.
He’s hoping the issue will help fend off his ultimate punishment, currently slated for April 25.
If Davila’s name rings a bell, that’s because he lost a close case at the U.S. Supreme Court last term. A divided court rejected his ineffective assistance claim on procedural grounds.
After the high court’s ruling last June, Wilson moved to set an execution date.
Not only does that violate due process, Davila claims, so does the fact that one of his former lawyers also now works for the DA’s office that wants him dead.
But whether his latest claim can succeed—if the justices agree to hear it at all—may hinge on how the high court compares it to a 2016 case that posed what Davila calls the “inverse” of his situation.
In Williams v. Pennsylvania, a judge who ruled on the defendant’s appeal was previously the DA who had authorized seeking his death sentence. The judge’s refusal to recuse himself violated due process, the Supreme Court said there.
Williams “strikes awfully close” to Davila’s situation, but Davila’s is a “harder case,” ethics scholar Renee Knake told Bloomberg Law. She’s a professor of law and the Joanne and Larry Doherty Chair in Legal Ethics at the University of Houston Law Center.
Davila fired a semi-automatic assault rifle into a crowd at a Forth Worth, Texas, birthday party in 2008, killing a five-year-old and her grandmother.
Wilson presided over Davila’s 2009 trial that landed him on death row.
In 2014, she was elected Tarrant County DA. David Richards, Davila’s state habeas lawyer, now works in her post-conviction unit.
The DA’s office wouldn’t comment on the pending litigation.
But it provided Bloomberg Law with a copy of a Jan. 2015 memorandum from DA Wilson that instructed attorneys in her office not to discuss with Richards cases where he worked as a defense attorney—including Davila’s.
Texas ethics rule 1.11(a) says that lawyers “shall not represent anyone in connection with a matter in which the lawyer has passed upon the merits or otherwise participated personally and substantially as an adjudicatory official … unless all parties to the proceeding consent after disclosure.”
Wilson violated that rule here, Davila claims.
“It clearly shocks the conscience and offends the basic notions of fair play that Davila’s trial judge is willing to violate Texas’s ethical rules by representing the State of Texas in seeking Davila’s execution date,” he argued in an April 19 application seeking to stay his execution.
Wilson “has neither sought nor acquired Mr. Davila’s consent to represent the state in this matter,” he said.
But even if there is an ethical violation, that doesn’t necessarily mean there’s a due process violation, Knake said.
Plus, Wilson’s switch here from judge to prosecutor—as opposed to prosecutor-to-judge in Williams—might be a difference that hurts Davila’s chances.
Williams implicated the potential bias of a judge who’s supposed to be neutral.
But a prosecutor “necessarily has a point of view in the case she’s prosecuting,” Knake said.
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