            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                                 NOS. AP-76,998 & AP-76,999



                              In re PATRICK McCANN et al.



       ON PETITIONS FOR WRITS OF MANDAMUS AND PROHIBITION
               AGAINST THE HONORABLE BRADY ELLIOT
        IN CAUSE NO. 10-DCR-54,233 IN THE 268TH DISTRICT COURT
                         OF FORT BEND COUNTY

       P RICE, J., filed a dissenting opinion.

                                  DISSENTING OPINION

       Today the Court holds that, as between a lawyer and his client, the client owns the

legal file that is in his lawyer’s possession; that the client may dictate the disposition of that

file; and that the client’s dictates override the express order of a sitting judge. I wholly agree

with the Court that “[t]he client’s file belongs to the client.”1 But I disagree that this holding

suffices to dispose of the mandamus proceeding before us. In my view, the Court asks the




       1

        Majority Opinion at 6.
                                                                                   McCann — 2

wrong question. The right question—the answer to which will properly dispose of the case

before us—is whether, given that the file “belongs to the client,” the convicting court

presiding over this capital habeas corpus proceeding lacks all authority to order a disposition

of that client’s file that is at odds with the client’s wishes. In my view, there is no clear

answer to that question to be derived from any state precedent.

       The Court effectively disposes of the question of the convicting court’s authority by

summarily declaring that Judge Elliott “did not have the authority (inherent or otherwise) to

order McCann to violate his fiduciary duty to Turner[.]”2 The only precedent the Court is

able to muster in support of this declaration, however, simply establishes that a trial court’s

authority extends only to the issuance of “lawful” orders.3 But, of course, the very question

that the Court effectively begs is whether the convicting court’s order compelling McCann

to turn over his client’s file against his client’s wishes was, indeed, “lawful.” If the Court

must take this occasion to say what the law is for the first time, I fail to understand how it can

be said that the law up until now was so “clear” that McCann is entitled to mandamus relief

from the convicting court’s contempt order. For that reason, I believe that mandamus relief

should not lie.




       2

        Id. at 16-17.
       3

        Id. at 17 n.22.
                                                                                         McCann — 3

  McCann’s Dilemma: “A Lawyer Shall Not . . . Reveal Confidential Information” 4

        An attorney’s duty to maintain his client’s confidences arises from his ethical

obligations as a practitioner of the profession of lawyering.5 Both McCann and Rytting are

attempting to satisfy what they perceive to be their respective ethical duties, but face the

vexing dilemma that those duties cannot simultaneously be satisfied. McCann, for his part,

feels that he is bound by his ethical duty to maintain client confidences not to divulge

confidential information over the wishes of his client. Rytting feels that he is bound by his

ethical duty of effective representation to seek trial counsel’s files—whether they contain

confidential information or not—and examine them for purposes of preparing an application

for writ of habeas corpus. Both lawyers, realizing the ethical quandary they are in, have laid

their concerns at the feet of the convicting court and asked for a ruling so that one or the

other of them may be absolved of any ethical wrongdoing. What the Court essentially

declares today is that the law unequivocally binds Judge Elliott to resolve this ethical

quandary in McCann’s favor. I disagree.

        The bulk of the Court’s analysis is devoted to answering the following question: “To



        4

         See TEX . DISCIPLINARY RULES PROF’L CONDUCT R. 1.05(b)(1) (“[A] lawyer shall not
knowingly . . . [r]eveal confidential information of a client or former client to . . . a person that the
client has instructed is not to receive the information[.]”).
        5

         See TEX . DISCIPLINARY RULES PROF’L CONDUCT preamble ¶ 1 (“A lawyer is a representative
of clients, an officer of the legal system and a public citizen having special responsibility for the
quality of justice . . . . A consequent obligation of lawyers is to maintain the highest standards of
ethical conduct.”).
                                                                                       McCann — 4

whom does a client’s file belong?” The Court relies, inter alia, on the Texas Supreme

Court’s opinion in In re George to conclude that a client “owns the contents of his or her

file.”6 I do not disagree with this conclusion. But George itself recognizes that, a client’s

ownership of his file notwithstanding, a “compelling reason” may justify “depriv[ing] a client

of his or her property.”7 Indeed, in George, the Texas Supreme Court did not question the

trial court’s ultimate authority to order disclosure, but rather sought to describe the

circumstances when, and the extent to which, it would be appropriate to exercise that

authority.8 Thus, simply to say that the file belongs to Turner, and that Turner, if he is

competent,9 may do what he wishes with the file, does not answer the determinative question

in this case, which is: Given that the client owns the contents of his case file, does a

convicting court lack all authority to issue an order disposing of the file in a way that

conflicts with the client’s expressed wishes? This question is anything but well-settled.

       6

        Id. at 6-7 & n.8 (citing In re George, 28 S.W.3d 511, 516 (Tex. 2000)).
       7

        George, 28 S.W.3d at 516.
       8

         Id. at 515-16 (“Once they determine that a restriction [on disclosure] is necessary because
an attorney has been disqualified for a prior, substantially related representation, some courts do not
inquire into the work product itself. They automatically forbid any work product from being
transferred [over the client’s wishes] to the successor attorney . . . This approach may be appropriate
for cases in which the entire suit is based on improperly revealed confidential information . . . But
we believe that it is inappropriate for a general rule.”).
       9

        My concerns about the Court’s conclusion are not dependent upon, nor do they stem from,
any issues relating to Turner’s present competency. To the contrary, irrespective of Turner’s mental
capacity to make decisions affecting his post-conviction pursuit of relief, my concerns relate only
to what I perceive to be the unsettled state of the law.
                                                                                      McCann — 5

         To the extent that the Court relies on ethical considerations to reach its ultimate

conclusion, there is good reason to think that the answer to this question is: No, the authority

of trial judges is not limited in this way. Professors Goode, Wellborn, and Sharlot have

concluded that “[t]he rules of professional conduct do not . . . provide an independent basis

for refusing to answer questions during the course of a . . . criminal proceeding.” 10 That

treatise also notes that “the attorney-client privilege empowers a client to block the compelled

disclosure of confidential attorney-client communications . . . [while] the ethical obligation

enjoins the lawyer from voluntarily revealing confidential information obtained while

representing the client.”11 The distinction, in that discussion, between “compelled” and

“voluntary” disclosures serves to highlight an important aspect of this case: McCann is not

citing the Rules of Professional Conduct for the proposition that he is ethically prohibited



         10

         Steven Goode, Olin Guy Wellborn III, & M. Michael Sharlot, 1 TEXAS PRACTICE : GUIDE
TO THE   TEXAS RULES OF EVIDENCE § 503.3, at 411 (3d ed. 2002).
         11

        Id. (emphasis added). The explanation in a previous edition was even more to-the-point:
“Protection against non-compelled disclosure of a client’s confidential communications to his
attorney comes from the Texas Disciplinary Rules of Professional Conduct.” Steven Goode, Olin
Guy Wellborn III, & M. Michael Sharlot, 1 TEXAS PRACTICE: GUIDE TO THE TEXAS RULES OF
EVIDENCE : CIVIL AND CRIMINAL § 503.2, at 327 (2d ed. 1993) (emphasis added). See also Robert
A. Pikowsky, Privilege and Confidentiality of Attorney-Client Communication Via E-mail, 51
BAYLOR L. REV . 483, 490-91 (1999) (“Of course, a professional who is called to testify in judicial
proceedings cannot lawfully refuse to do so based exclusively on a duty of confidentiality in the
absence of any recognized privilege. Unless a privilege exists as well, the court can properly require
the professional’s testimony.”); Mitchell M. Simon, Discreet Disclosures: Should Lawyers Who
Disclose Confidential Information to Protect Third Parties Be Compelled to Testify Against Their
Clients?, 49 S. TEX . L. REV . 307, 315 (2007) (“The key difference between confidentiality, which
governs a lawyer's voluntary actions, and privilege is that privilege trumps a court’s authority to
compel testimony.”) (emphasis added).
                                                                                     McCann — 6

from voluntarily turning over Turner’s files. Were he to make such an argument, I would be

inclined to agree with him. Rather, McCann is citing to the Rules of Professional Conduct

for the proposition that the trial judge has no authority to compel McCann to turn the files

over to Rytting, nor even to order him to make a copy and turn that over. And this is where

I think McCann’s (and, by extension, the Court’s) argument ultimately falters.

       The Texas Disciplinary Rules of Professional Conduct explicitly envision that there

will be occasions when a lawyer will face conflicting obligations from, on the one hand, a

court order, and, on the other, the Rules themselves. Rule 1.05(c)(4), for instance, states that

“[a] lawyer may reveal confidential information . . . [w]hen the lawyer has reason to believe

it is necessary to do so in order to comply with a court order[.]” 12 We have not, either today

or at any other time that I am aware of, explained what effect, if any, this provision has on

the authority of a trial judge to resolve an ethical Catch-22 such as the one presented in this

case.13 True enough, the Rule states that a lawyer “may reveal,” not that he “must reveal.”

But this simply means that one who voluntarily disobeys a court order to turn over

confidential material does not violate the Disciplinary Rules of Professional Conduct—it

does not mean that he does not violate the court order, that the order is of no effect, or that



       12

        TEX . DISCIPLINARY RULES PROF’L CONDUCT R. 1.05(c)(4) (emphasis added).
       13

        See TEX . DISCIPLINARY RULES PROF’L CONDUCT R. 1.05 cmt. 22 (“[A] lawyer may be
obligated by other provisions of statutes or other law to give information about a client. Whether
another provision of law supersedes Rule 1.05 is a matter of interpretation beyond the scope of these
Rules.”) (emphasis added).
                                                                                         McCann — 7

the Rules altogether strip the court of the authority to issue that order. This conclusion is

especially apparent when Rule 1.05 is considered in light of other provisions of the Texas

Disciplinary Rules of Professional Conduct that make clear that the Rules govern the

profession of lawyering—not the authority of trial judges—and by their terms purport to

extend no further.14

        Moreover, to the extent that the Court relies on property-law considerations in

reaching its ultimate conclusion, again there is reason to think that the answer to (what I have

called) the determinative question in this case would also cut against a grant of mandamus

relief to McCann—that is, that property law by itself does not limit the authority of trial

judges in the way envisaged by the Court. In coming to the conclusion that McCann’s

“burden based on the binding precedent . . . under Burnett” is sufficiently weighty to render

Judge Elliott’s order unenforceable, the Court purports only to reaffirm our holding in

Burnett that “a client owns the contents of his or her file.”15 From there, the Court (correctly)

        14

          See, e.g., TEX . DISCIPLINARY RULES PROF’L CONDUCT preamble ¶¶ 11-16 (“The[se] rules
presuppose a larger legal context . . . [which] includes court rules and statutes relating to matters of
. . . laws defining specific obligations of lawyers and substantive and procedural law in general. [*
* *] These rules make no attempt to prescribe either disciplinary procedures or penalties for
violation of a rule. [* * *] Violation of a rule . . . does [not] create any presumption that a legal duty
to a client has been breached . . . The fact that a rule is a just basis for a lawyer’s self-assessment,
or for sanctioning a lawyer under the administration of disciplinary authority, does not imply that an
antagonist in a collateral proceeding . . . has standing to seek enforcement of the rule. Accordingly,
nothing in the rules should be deemed to augment any substantive legal duty of lawyers or the extra-
disciplinary consequences of violating such a duty. [* * *] Moreover, these rules are not intended
to govern or affect judicial application of either the attorney-client or work product privilege.”)
(emphasis added).
        15

        Majority Opinion at 6-7 & n.7, 14-15 & n.19.
                                                                                  McCann — 8

recognizes that the assertion of the attorney-client privilege is not implicated in this case and

then (incorrectly) surmises that the second holding of Burnett can be disregarded.

       To the contrary, I find it significant that Burnett’s first holding—according to the

Court, that the client owns the contents of his or her file—did not dispose of the relevant

issue in that case. Indeed, the fact that the Burnett Court saw the need to discuss the law of

privilege after determining ownership of the file indicates to me that property-rights

considerations were, to say the least, insufficient by themselves to illuminate the proper

disposition of that case. After all, if the proposition that a competent client can exercise

“unassailable” ownership of his or her file were as true in Burnett as it seemingly is today,16

why bother, in that case, to discuss the attorney-client privilege at all?

       The reason, of course, is that a party’s assertion of a property right, without more,

does not—and should not—solely determine the extent of a trial judge’s authority in these

circumstances. In both Burnett and George, the litigants seeking to avoid respective court

orders commanding them to dispose of their “property” in a certain fashion were expected

to assert, in addition to their property interests, something else—some other definite legal

protection or right that actually limited the authority of the trial judge. In Burnett this

“something else” was the attorney-client privilege.17 In George the “something else” was the




       16

        See id. at 13.
       17

        642 S.W.2d at 769.
                                                                                       McCann — 9

threat of an actual conflict of interest.18 In this case I see no “something else”—I see only

a bare assertion of a property right, and absolutely no argument as to how this property right

is so inviolable as to be totally impervious to court order.19

       Even if I have misread Burnett and George, I would remain of the opinion that

property law alone gives no “clear” or “settled” resolution to the case before us. There are

still, in my mind, too many unanswered questions to admit of a such a clear resolution. For

instance: The Court addresses at length the wrongfulness of Judge Elliott’s order to McCann

to turn over his client’s physical file, but curiously glosses over whether it would have been

wrong, per Rytting’s explicit request, to simply order McCann to relinquish a copy of the file.

How do we know whether such an order would also violate Turner’s property rights (that is,

which authorities provide a “clear” answer to this question)? Is it because the file is just a

physical embodiment of what is, in effect, Turner’s intellectual property? How do we know?

If Turner has an intellectual property interest in the contents of the file, how far does that

interest extend? All the way? Less than all the way? How do we know? Does making a



       18

        28 S.W.3d at 512 (citing TEX . DISCIPLINARY RULES PROF’L CONDUCT R. 1.09(a)).
       19

          It could be argued, I suppose, that Turner’s property interest works in tandem with
McCann’s “fiduciary duty,” Majority Opinion at 11 & n.14, to place limits on the trial court’s
authority to order a relinquishment of Turner’s property. But again, the fact that McCann has an
ethical duty to his client does not necessarily imply that Judge Elliott has a clear legal duty to rule
in favor of McCann. And I do not understand how the aggregation of one arguably authority-limiting
consideration (property rights) with one arguably non-authority-limiting consideration (fiduciary
duty) results in a decidedly authority-limiting consideration that is somehow greater than the sum
of its parts.
                                                                                      McCann — 10

copy of the file and handing the copy to the client’s current attorney violate that interest,

whatever its extent? How do we know?

       Again, I do not claim to have answers to these questions. I am simply pointing out

that the Court’s disposition depends upon, or at the very least suggests, the pre-existence of

clear and definitive answers. Today the Court says for the first time what the law is in this

area, but then treats its pronouncement as time-honored and long-established. Trial judges

who find themselves the subject of our mandamus authority can only scratch their heads.

       Rytting’s Dilemma: “A Lawyer Zealously Asserts the Client’s Position” 20

       There was a time in our jurisprudence when this Court—and others—recognized the

“discretionary” nature of mandamus relief.21 This discretion, it was thought, existed even

when the long-settled prerequisites for mandamus—a clear claim to relief and the absence

of an adequate remedy at law—had been met.22 Perhaps it was in view of this discretion that

the Court ordered the parties in this case to brief a question that, on its face, appears not to



       20

        See TEX . DISCIPLINARY RULES PROF’L CONDUCT preamble ¶ 2 (“As advocate, a lawyer
zealously asserts the client’s position under the rules of the adversary system.”).
       21

         See George E. Dix and John M. Schmolesky, 43B TEXAS PRACTICE: CRIMINAL PRACTICE
AND  PROCEDURE § 61:3, at 930 (3d ed. 2011) (citing Dickens v. Second Court of Appeals, 727
S.W.2d 542, 549 (Tex. Crim. App. 1987) (“Mandamus is an extraordinary writ, and is not issued as
a matter of right, but rests largely in the sound discretion of the Court.”) (citation omitted); Lanford
v. Fourteenth Court of Appeals, 847 S.W.2d 581, 585 (Tex. Crim. App. 1993) (“[M]andamus is a
drastic remedy, to be invoked only in extraordinary situations.”) (alteration in original) (citation
omitted)).
       22

        Id.
                                                                               McCann — 11

be grounded in the law as much as the potential ramifications of Turner’s own self-defeating

decision: “If the file belongs to the client (the defendant in the underlying case here), what

are the possible consequences should the client refuse to turn over the file to subsequent

counsel?” 23

       In its haste to find error in Judge Elliott’s decision to override McCann’s refusal to

turn over Turner’s file to Rytting, the Court fixates on the duties and dilemmas facing

McCann in his own decision whether to turn over Turner’s files, but wastes no ink to

consider the dilemma faced by Rytting. The Court today does not even mention the “possible

consequences” to Turner, notwithstanding the interest it evinced in its earlier briefing order.

Again, given the “discretionary” nature of mandamus relief and the fact that mandamus is

available only in “extraordinary situations,”24 I am puzzled by the Court’s reticence in this

regard.     Whatever the reason, since the Court has not undertaken to describe the

consequences to Rytting and Turner should Judge Elliott’s order be overturned, I will.

       Rytting has an obligation—an ethical imperative—to review McCann’s files on

Turner for any signs of ineffective representation at the trial level. This obligation is

apparent from a perusal through the admittedly nebulous and lofty expectations of the

Disciplinary Rules of Professional Conduct:

       23

       In re McCann, Nos. AP-76,998 & AP-76,999, 2013 WL 1149840, at *1 (Tex. Crim. App.
Mar. 20, 2013) (per curiam) (not designated for publication).
       24

      George E. Dix and John M. Schmolesky, 43B TEXAS PRACTICE : CRIMINAL PRACTICE AND
PROCEDURE § 61:3, at 930 (3d ed. 2011).
                                                                                McCann — 12

       Lawyers, as guardians of the law, play a vital role in the preservation of
       society. As advisor, a lawyer provides a client with an informed understanding
       of the client’s legal rights and obligations and explains their practical
       implications. As advocate, a lawyer zealously asserts the client’s position
       under the rules of the adversary system. A lawyer acts as evaluator by
       examining a client’s affairs and reporting about them to the client or to others.
       In all professional functions, a lawyer should zealously pursue clients’ interests
       within the bounds of the law. In doing so, a lawyer should be competent,
       prompt, and diligent. [P]ersonal involvement in the problems of the
       disadvantaged can be one of the most rewarding experiences in the life of a
       lawyer. In representing a client, a lawyer shall not . . . neglect a matter
       entrusted to the lawyer[.] Competent representation contemplates . . .
       reasonable thoroughness in the study and analysis of the law and facts, and
       reasonable attentiveness to the responsibilities owed to the client. A lawyer
       should feel a moral or professional obligation to pursue a matter on behalf of
       a client with reasonable diligence and promptness despite opposition,
       obstruction or personal inconvenience to the lawyer. [A] lawyer shall abide
       by a client’s decisions . . . concerning the objectives and general methods of
       representation, [but] [t]he lawyer should assume responsibility for the means
       by which the client’s objectives are best achieved. Thus, a lawyer has very
       broad discretion to determine technical and legal tactics[.] The advocate has
       a duty to use legal procedure for the fullest benefit of the client’s cause[.] The
       advocate’s task is to present the client’s case with persuasive force.25

It is also apparent from a close study of the more concrete expectations of the Guidelines and

Standards for Texas Capital Counsel:

       The objective of these Guidelines is to set forth a state-wide standard of
       practice for the defense of capital cases in order to ensure high quality legal
       representation for all persons facing the possible imposition or execution of a
       death sentence by any State of Texas jurisdiction. Counsel at every stage have
       an obligation to conduct a full examination of the defense provided to the
       client at all prior phases of the case. This obligation includes at a minimum
       interviewing prior counsel and members of the defense team and examining


       25

        TEX . DISCIPLINARY RULES PROF’L CONDUCT preamble ¶¶ 1-3, 6, R. 1.01(b)(1) & cmt. 1, 6,
R. 1.02(a)(1) & cmt. 1, R. 3.01 cmt. 1, R. 3.03 cmt. 1 (emphases added and some ellipses omitted
throughout).
                                                                                  McCann — 13

       the files of prior counsel. Counsel at every stage of the case, exercising
       professional judgment in accordance with these Guidelines, should [c]onsider
       all legal claims potentially available; and [t]horoughly investigate the basis for
       each potential claim before reaching a conclusion as to whether it should be
       asserted; and [e]valuate each potential claim in light of . . . [t]he importance
       of protecting the client’s right against later contentions by the government that
       the claim has been waived, defaulted, not exhausted, or otherwise forfeited.
       Counsel who decide to assert a particular legal claim should [p]resent the
       claim as forcefully as possible, tailoring the presentation to the particular facts
       and circumstances in the client’s case and the applicable law. Habeas corpus
       counsel must understand that the state habeas corpus proceeding is not a
       second direct appeal. Direct appeal-like, record-based claims are not
       cognizable in state habeas corpus and can be fatal to the capital client.
       Counsel should not accept an appointment if he or she is not prepared to
       undertake the comprehensive extra-record investigation that habeas corpus
       requires. [H]abeas counsel cannot rely on the work of, or representations made
       by, prior counsel to limit the scope of the post-conviction investigation.
       [C]ounsel has a duty to conduct a searching inquiry to assess whether any
       constitutional violations may have taken place, including . . . ineffective
       assistance of trial . . . counsel. State habeas corpus counsel’s lack of
       diligence, mistakes, missteps, and omissions will be attributed to the capital
       client and will follow the client throughout all remaining proceedings in state
       and federal court. It is a dereliction of habeas corpus counsel’s duty to simply
       acquiesce to a capital client’s insistence that he or she . . . wants to challenge
       only the conviction but not the sentence. Counsel must also inspect the
       evidence and obtain the files of trial and appellate counsel, scrutinizing them
       for what is missing as well as what is present. Habeas corpus counsel must
       demand on behalf of the capital client all resources necessary to provide high
       quality legal representation, to conduct a thorough investigation of both the
       conviction and sentence, to procure documentary evidence, and to retain
       experts. Habeas corpus counsel should consider every legal claim potentially
       available, and thoroughly investigate the basis for each potential claim[.]26

These are the expectations—the obligations—confronting Rytting as he seeks access to



       26

        GUIDELINES AND STANDARDS FOR TEXAS CAPITAL COUNSEL 1.1(A), 11.1(B), 11.2(A),
11.2(B)(1), 12.2(B)(1)(b), 12.2(B)(2)(c), 12.2(B)(3)(b), 12.2(B)(6)(a), 12.2(B)(7)(b) (State Bar of
Tex. 2006) (emphases added and some ellipses omitted throughout).
                                                                                 McCann — 14

McCann’s files on Turner.

       And this is the reality he faces: Investigating a client’s case beyond merely reading

the direct appellate record—and reviewing trial counsel’s case files in particular—is an

indispensable first step in proving ineffective assistance of counsel at the trial level. This is

because “[a] substantial risk of failure accompanies an appellant’s claim of ineffective

assistance of counsel on [a] direct appe[llate] . . . record.”27 On an appellate record, this

Court will presume that “[trial] counsel’s conduct fell within the wide range of reasonable

professional assistance”—and in order to overcome this “strong presumption,” a claimant

must “affirmatively demonstrate the alleged ineffectiveness” in the appellate record.28 But

“[t]he record in a direct appeal may well contain a less than adequate inquiry into possible

tactical reasons for various actions or omissions by counsel and may lack completely trial

counsel’s own explanations for his actions or inactions.”29 Indeed, one of the crucial

purposes of habeas corpus proceedings is to supplement the appellate record so as to

demonstrate trial counsel’s ineffectiveness—in a way that the appellate record standing by

itself typically will not. And while it might be said that Rytting could simply depose, seek

affidavits from, or otherwise interview McCann to get the information he needs to prove


       27

        See Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).
       28

        Id. at 813-14.
       29

      Id. at 814 n.5 (citing George E. Dix and Robert O. Dawson, 41 TEXAS PRACTICE : CRIMINAL
PRACTICE AND PROCEDURE § 24.94 (2d ed. 1995)).
                                                                                     McCann — 15

ineffectiveness outside the direct appellate record, the Guidelines specifically state that

“habeas counsel cannot rely on the work of, or representations made by, prior counsel to limit

the scope of the post-conviction investigation.”30 To do so, in other words, would be to

compromise an ethical duty.31

       Even beyond filling in the important details of ineffectiveness claims that are hinted

at within—but not apparent from—the record,32 habeas counsel’s review of trial counsel’s


       30

       GUIDELINES AND STANDARDS FOR TEXAS CAPITAL COUNSEL 12.2(B)(1)(b) (State Bar of
Tex. 2006).
       31

           Indeed, it is arguable that Rytting is ethically bound to at least investigate a claim of
ineffective assistance even against his client’s expressed wishes. Cf. Summerlin v. Schriro, 427 F.3d
623, 638-39 (9th Cir. 2005) (“[A] lawyer’s duty to investigate [mitigation issues] is virtually
absolute, regardless of a client’s expressed wishes . . . [E]ven when faced with client directives
limiting the scope of defense, an attorney must conduct a reasonable investigation enabling him to
make informed decisions about how best to represent his client.”) (internal quotation marks omitted)
(quoting Silva v. Woodford, 279 F.3d 825, 838-46 (9th Cir. 2002)); Harries v. Bell, 417 F.3d 631,
638 (6th Cir. 2005) (“[A] ‘defendant[’s] resistance to disclosure of information does not excuse
counsel’s duty to independently investigate.’”) (quoting Coleman v. Mitchell, 268 F.3d 417, 449-50
(6th Cir. 2001)); Thompson v. Wainwright, 787 F.2d 1447, 1451 (11th Cir. 1986) (“[A] lawyer[]
may not ‘blindly follow’ [the client’s] commands [because] although the decision whether to use
[mitigation] evidence in court is for the client . . . the lawyer first must evaluate potential avenues
and advise the client of those offering possible merit.”) (quoting Foster v. Strickland, 707 F.2d 1339,
1343 (11th Cir. 1983)). In any event, this Court has yet to hold otherwise. And the ineffectiveness
of trial counsel is, to say the least, an extremely important claim to make, as evidenced by the fact
that it is one of the most often-litigated claims in a writ application. See Gary Udashen, Designating
and Determining Issues on An Applications for Writ of Habeas Corpus, Texas Center for the
Judiciary 2009 Writs Training Conference at 6 (2009).
       32

        For example, at the October 7, 2011 OCW-McCann hearing, the following exchange took
place between Turner and counsel for McCann:

       [Counsel for McCann:] Do you think that Mr. McCann did a good job in your trial?

       [Mr. Turner:] (Shakes head negatively).
                                                                                 McCann — 16

files serves other important purposes in the preparation of an initial application for state

habeas corpus relief. It can reveal whole swaths of a client’s circumstances that, were they

simply not presented at trial, this Court might presume were left out for strategic purposes,

but upon review of the file in its entirety would be more properly characterized as instances

of trial counsel’s neglect or poor judgment—and potentially his ineffectiveness.33 Habeas

counsel’s review of trial counsel’s files can, in addition, serve to aid the investigation of

claims unrelated to trial counsel’s ineffectiveness. It can serve, for example, as a starting

point for looking into whether the State possesses undisclosed exculpatory evidence,34 or

whether evidence exists that might establish the client’s actual innocence.35 Moreover, such

a review can assist counsel to separate specious claims of all kinds from those with potential

merit. In short, reviewing trial counsel’s files provides an array of advantages to initial state

habeas corpus counsel by aiding him in his considerable investigatory task in addition to




       [Counsel for McCann:] Is that a no?

       [Mr. Turner:] (No response).

       [Counsel for McCann:] You can say it. It’s okay. You’re not going to hurt anybody’s
       feelings.

       [Mr. Turner:] No.
       33

        See, e.g., Wiggins v. Smith, 539 U.S. 510 (2003).
       34

        See, e.g., Brady v. Maryland, 373 U.S. 83 (1963).
       35

        See, e.g., Ex parte Elizondo, 947 S.W.2d 202 (Tex. Crim. App. 1996).
                                                                                   McCann — 17

providing substance and depth to claims that might not otherwise stand a chance at

succeeding.

       So should the Court overturn Judge Elliott’s order today, Turner may have to submit

his initial state habeas application—which will set the tone of his entire post-conviction

pursuit of relief—with claims of the ineffectiveness of trial counsel that lack meaningful

substantiation. Being purely record-based, these claims would probably fail to “allege[]facts

that, if true, might entitle him to relief.”36 If this is the case, he will most likely be denied an

evidentiary hearing to develop the facts—since he has been unable to allege concrete facts.37

Instead, he will limp into federal court with what little fact-development he could muster

from his investigation sans trial counsel’s files, and this meager federal review will avail him

little, if anything. And at the end of it all, Turner may very well be executed without ever

having a genuine shot at proving that his trial counsel’s assistance was deficient.

       Judge Elliott believed it possible to resolve McCann and Rytting’s ethical dilemma,

and at the same time assure Turner the “competent counsel” that Article 11.071 envisions,38

by granting Rytting access to Turner’s files. Perhaps his decision was overly paternalistic.

Perhaps it was ill-advised. Perhaps it was even arguably incorrect as a matter of law


       36

        See Ex parte Medina, 361 S.W.3d 633, 638 n.10 (Tex. Crim. App. 2011).
       37

         Id. at 637-38 (where a habeas applicant makes conclusory allegations in his initial writ
application, even remanding to the trial court for further factual development is inappropriate).
       38

        TEX . CODE CRIM . PROC. art. 11.071, § 2.
                                                                                  McCann — 18

(although I doubt it). Nevertheless, I am unwilling to subject a trial judge to the stigma of

mandamus for a decision that was merely arguably incorrect. Mandamus is only appropriate

when a relator’s claim for relief is “clear”—not arguable—and a claim for relief can only be

“clear” when the law undergirding the claim is “well-settled.”39 I think that the law in this

area is demonstrably unsettled; at the very least it is insufficiently well settled to justify the

extraordinary measure of mandamus. And even if I were wrong in this regard, I would think

it inappropriate to exercise our discretion so as to prevent a trial judge from saving a capital

habeas applicant—even one who has not been declared incompetent—from his own manifest

paranoias. I respectfully dissent.




FILED:         November 20, 2013
PUBLISH




       39

        In re State ex rel. Weeks, 391 S.W.3d 117, 122 (Tex. Crim. App. 2013).
