Professional Documents
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both trial lawyers, Messrs. Blazek and Carter, and advised them when and
where the hearing was set. The three lawyers collectively visited with
Holiday for an hour before and after the hearing, talking with him about his
circumstances and the procedures at hand. Immediately after the hearing,
Holiday was taken back to Polunsky Unit. Meanwhile, Messrs. Kretzer,
Carter, and Blazek went across the street from the courthouse to the town
square and met for another hour to discuss possible issues for a successor
writ.
Ms. Sween does not mention this.
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Nor did we lay supine after the death warrant was signed on August
14. We would have eagerly filed a successor writ had meritorious grounds to
do so presented themselves. Unfortunately, no such grounds have
materialized.
To be clear: we looked. For example, in late September, the Texas
Forensic Science Commission sent us the following results of their
retroactive review of the arson issues in Holidays case, which is reproduced
below in relevant part:
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Yet on page 13 of her opening brief, one sees a factual contortion such
that the email has become excerpted:
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cordial and productive relationship with our client of nearly five years. The
record does not indicate a single prior complaint from Holiday to Judge
Lake, or to this Court, about his CJA lawyers during that multi-year period.
Mr. Kretzer met with Holiday periodically at Polunsky, and both
attorneys corresponded regularly with updates and information. Whatever
Ms. Sween, or her unnamed representative, told Raphael during her
private visits with our client has triggered such a profound impact on him
that he would rather stay in his small prison cage, where he spends 23 hours
per day, rather than leave for an hour to visit with the licensed attorneys who
possess the ability to communicate with the authorities who might be able to
influence his fate. While Texas Disciplinary Rule of Professional Conduct
4.02(d), Communication with One Represented by Counsel, allows an
attorney to respond to a represented person who sends a letter asking
questions, Ms. Sween appears to have acted far beyond any reasonable
interpretation of Rule 4.02. She evidently used one or two letters Holiday
sent to others to justify meeting privately with him; initiated a separate
attorney-client relationship at odds with his existing ones; interviewed him
about the facts of the offense; obtained, read, and published his privileged
communications with his attorneys in an ECF filing; and instructed one or
more unnamed representatives to see him. If this is the new ethical norm,
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the same scenario will be seen from now on in this and other courts in every
capital habeas case when an execution dates draw near.
WHY IS MS. SWEEN FIXATED ON CLIFTON WILLIAMS?
Clifton Williams is another inmate on death row who won a lastminute stay from the Texas Court of Criminal Appeals in July when the state
produced new evidence the day before the execution. This comes up only
because, in response to Holidays motion for a new lawyer, Kretzer used this
is an example of how neither he or Volberding would hesitate to file a
successor writ were non-frivolous grounds to do so to present themselves.
From this rather innocuous example, the personal antipathy of Ms.
Sween (who Mr. Kretzer knows from law school and of whom Mr.
Volberding had never heard) towards Kretzer and Volberding has exploded
to the point that she has envisaged a scenario by which they represented a
fraud to Judge Lake about the stay. Judge Lake twice graciously ignored this
ill-informed accusation, but since it occupies so much of the opening brief
(see pages 15, 29, 30, and 32), we feel professionally obligated to set the
record straight.
Clifton Williams lost his petition for writ of certiorari. The state judge
informed us that she wished to conduct a formal execution date hearing. We
informed her that as we were CJA appointed counsel, she should appoint one
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CERTIFICATE OF CONFERENCE
I certify that on November 2, 2015, I conferred with Ellen StewartKlein in the Office of the Attorney General about the motion to dismiss
Holidays appeal on the grounds of mootness, and she stated that she is
unopposed to dismissal of the appeal.
/s/ Seth Kretzer
________________________
Seth Kretzer
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