Representation

Lawyers Say Utah Is Underfunding Death-Penalty Appellate Defense

Utah is not providing sufficient funding to competently represent death-row prisoners during their appeals, according to a motion filed on behalf of Douglas Lovell, the man most recently sentenced to death in the state. Because of that, Lovell's lawyer Samuel Newton says, Lovell's death sentence should be vacated and he should be resentenced to life in prison. Newton bases his claim on a 2008 Utah Supreme Court opinion, Archuleta v. Galetka, in which the court warned that "low levels of public funding for capital cases" and "significantly diminishing numbers of qualified counsel able and willing to represent capital defendants" might force the court to overturn death sentences if it "impedes prompt, constitutionally sound resolution" of a capital case. Newton argues that a billing cap imposed by Weber County officials and threats and meddling by county officials are compromising his ability to zealously represent Lovell. Lovell has been granted an evidentiary hearing on his post-conviction claims — including whether The Church of Jesus Christ of Latter-day Saints interfered with the trial by limiting the testimony available from bishops who had worked with Lovell at the prison — and Newton estimates that the hundreds of hours required to investigate and prepare for the hearing would cost about $37,000. However, Weber County officials sent Newton an email accusing him of overbilling the county and meeting with his client too frequently, and threatening that, as a result, they may have to find other attorneys for future appeals. The county has capped his payment for the hearing at $15,000. "That's the bind," Newton said. "Do I represent my client zealously like I'm constitutionally required to do? Or do I tread lightly so I don't lose my livelihood?" Newton said that the financial strain of handling another death-penalty case has caused stress-related heart problems that led him to request to be removed from that case. Newton's motion is not the first time attorneys have expressed concerns about Utah's capital defense funding. In 2007, the Utah Association of Criminal Defense Lawyers filed an amicus brief in the case of Ralph Menzies. Affidavits submitted by well-known defense lawyers in connection with that brief reported that the final payments they received for handling death-penalty appeals had amounted to compensation at levels of $17 and $19 per hour — about one-tenth their normal billing rates. Defense attorney Richard Mauro said the pay rates make it almost impossible for private attorneys to take on capital appeals: "If you are doing the work the way it's supposed to be done — and trying to keep the lights on and run the copy machine — it's really not a feasible thing to do."

U.S. Supreme Court Rules Texas Death-Row Prisoner Cannot Challenge Ineffectiveness of His Appeal Lawyer

In a 5-4 decision released June 26, the United States Supreme Court upheld the decision of the U.S. Court of Appeals for the Fifth Circuit, denying review of Texas death-row prisoner Erick Daniel Davila's claim that he had been provided ineffective representation by his state appeal lawyer. The case, Davila v. Davis, raised the question of whether two earlier Supreme Court decisions (Martinez v. Ryan and Trevino v. Thaler) permitted a federal court to review a prisoner's claim that his direct appeal counsel had been ineffective, if—because of his state post-conviction lawyer's ineffectiveness—the appellate ineffectiveness claim had never been presented to the state courts. Davila's federal habeas corpus lawyer challenged an improper jury instruction to which his trial lawyer had objected at trial, but both his direct appeal and his state habeas lawyers failed to raise the issue. When his state habeas lawyer also failed to challenge the adequacy of his appellate lawyer's performance in failing to raise the issue, the federal habeas court ruled that the claim was procedurally defaulted and would not be reviewed. Justice Clarence Thomas, writing for the majority, said that Martinez is limited to claims of trial counsel's ineffectiveness and does not apply to appellate-ineffectiveness claims. "Because a prisoner does not have a constitutional right to counsel in state postconviction proceedings, ineffective assistance in those proceedings does not qualify as cause to excuse a procedural default," Thomas wrote. He said granting prisoners like Davila federal review of meritorious claims of constitutional error "could flood the federal courts with defaulted claims of appellate ineffectiveness," calling that "especially troublesome because those claims could serve as the gateway to federal review of a host of trial errors." Justice Breyer dissented, joined by Justices Ginsburg, Sotomayor, and Kagan, arguing that the majority had interpreted Martinez too narrowly. "[E]ffective trial counsel and appellate counsel are inextricably connected elements of a fair trial," Breyer wrote. He added, “[t]he fact that ... nearly a third of convictions or sentences in capital cases are overturned at some stage of review suggests the practical importance of the appeal right, particularly in a capital case such as this one.” The dissent also said the majority’s concern was unfounded that granting review of the type of constitutional violation in Davila's case would overburden federal habeas corpus courts. He wrote, “there is no evidence before us that Martinez has produced a greater-than-expected increase in courts’ workload.”

After Remand from U.S. Supreme Court, Georgia Federal Court Vacates Brain-Damaged Prisoner's Death Sentence

The U.S. District Court for the Northern District of Georgia has overturned the death sentence imposed on Lawrence Jefferson, saying that his trial counsel had been ineffective for failing to investigate and present available mitigating evidence in his case, including evidence related to "a head injury he sustained as a child when an automobile rolled over his head." The court also found that the state courts had denied Jefferson a "full and fair" hearing on the issue, in violation of due process, when, without notice to Jefferson's lawyer, it invited the Assistant Attorney General to submit an order dismissing Jefferson's petition for relief, then signed the order submitted verbatim, complete with factual misstatements and erroneous legal citations. The potential brain damage to Jefferson was so obvious that the U.S. Supreme Court noted in a 2010 opinion sending the case back for further consideration that "[t]he accident left [Jefferson's] skull swollen and misshapen and his forehead visibly scarred." Before trial, a psychologist had recommended that defense counsel obtain a neuropsychological evaluation of Jefferson, but no evaluation was performed. An examination conducted during Jefferson's appeals process found significant evidence of brain damage, including an enlarged head indicative of brain swelling from the accident, asymmetrical reflexes, and discrepancies in verbal and visual-spatial test scores. A neuropsychologist concluded that these findings indicated right hemisphere and frontal lobe damage to the brain. A neurologist testified, "the most common thing with a closed head injury, traumatic injury of this sort, is problems with judgments, executive planning, and impulse control, the ability to foresee the consequences of your action in the future, as opposed to right now." Jefferson's jury never heard this mitigating evidence. According to the court, "The mental health evidence would have provided the jury an explanation for Petitioner’s past behavior and his testimony regarding his past behavior." The practice of courts signing opinions and orders written by prosecutors verbatim is not uncommon. In 2016, the Supreme Court denied a petition filed by counsel for Alabama death-row prisoner Doyle Lee Hamm seeking review of his case, in which the state court adopted word-for-word an 89-page order written by the state attorney general's office and the federal court said it was bound by the state court "findings." That order rejected Hamm's claim that his lawyer was ineffective, ruling that evidence the jury had never heard concerning Hamm's childhood diagnosis of borderline mental retardation, school records reflecting Hamm's intellectual deficits, and evidence of seizures, head injuries, and drug and alcohol abuse was "cumulative." 

Maricopa County, Arizona DA Seeks Death Penalty So Often, The County Has Run Out of Capital Defense Lawyers

Maricopa County, Arizona County Attorney Bill Montgomery has sought the death penalty so frequently that the county has run up millions of dollars in defense costs and run out of defense lawyers qualified to handle new capitally-charged cases. The Arizona Republic reports that, with 65 active death-penalty cases and more new capital cases charged than the 35 that have been resolved since July 1, 2014, the county ran out of the specialized lawyers needed to defend the cases in January of this year. Yet despite the county's high rate of seeking the death penalty, the number of death sentences imposed in the county is falling. With 81 people on death row as of January 1, 2013, Maricopa County ranked fourth among all U.S. counties in the number of death-row prisoners. According to a 2016 Fair Punishment Project report, Maricopa County imposed 28 death sentences between 2010 and 2015, making it one of only 16 counties to have imposed as many as 10 death sentences over that period. However, only six of the cases resolved since July 1, 2014, have resulted in death sentences. In addition to burdening the county's defense services, the County Attorney's broad pursuit of the death penalty has placed a significant financial strain on the county. An audit commissioned by the Office of Public Defense Services, one of the agencies that provides representation for capital defendants, found that capital murder cases cost eight to 40 times more than first-degree murder cases in which the death penalty is not sought. The audit found that non-capital murder trials cost about $27,000 to defend, whereas capital cases—which require two defense attorneys, an investigator, and a mitigation specialist—cost from $213,000 to $1 million, depending on the outcome. Capital cases ending in a plea to a lesser offense or sentence cost about $213,000, the audit said; more than the cost of a non-capital case taken to trial. Death penalty trials resulting in life sentences cost $580,000, and those that ended with a death sentence cost $1 million, not including federal appeals. John Canby, an attorney for the Maricopa County Public Defender's Office, summarized the situation: “For a variety of reasons it appears that juries in Maricopa County are less willing to return death verdicts in trials for first-degree murder than they once were. Nevertheless, it seems that the County Attorney’s Office is still willing to seek death sentences in cases with only a remote possibility of a death verdict. That practice costs the taxpayers of Maricopa County a lot of money because the court is required to appoint capital-qualified attorneys to those cases, even if the possibility of a death sentence is in fact very remote." 

Supreme Court Grants Relief to Duane Buck in Texas Racial Bias Death Penalty Case

Saying that the "law punishes people for what they do, not who they are," the Supreme Court on February 22, 2017, granted relief to Duane Buck (pictured, right), a Texas death-row prisoner who was sentenced to death after his own lawyer presented testimony from a psychologist who told the jury Buck was more likely to commit future acts of violence because he is black. Writing for the six-Justice majority, Chief Justice Roberts (pictured, left) said that "[d]ispensing punishment on the basis of an immutable characteristic flatly contravenes this guiding principle." Buck's case turned on the legal question of whether his lawyer had provided ineffective assistance. The Court left no doubt on the issue. Chief Justice Roberts wrote that "[n]o competent defense attorney would introduce such evidence about his own client." Despite counsel's deficient representation, the lower federal courts had refused to intervene, asserting that the references to race in the case had been brief and would have had only minimal, if any, effect on the jury's sentencing decision. The Chief Justice squarely rejected that conclusion, writing: "when a jury hears expert testimony that expressly makes a defendant’s race directly pertinent on the question of life or death, the impact of that evidence cannot be measured simply by how much air time it received at trial or how many pages it occupies in the record. Some toxins can be deadly in small doses." The Court explained that stereotyping black men as somehow more violence-prone than others is a "particularly noxious strain of racial prejudice." Buck's attorney, Christina Swarns, who had argued the case before the Court in October 2016, said “Today, the Supreme Court made clear that there is no place for racial bias in the American criminal justice system.” The decision, she said, reaffirms "the longstanding principle that criminal punishments—particularly the death penalty—cannot be based on immutable characteristics such as race.” Justice Clarence Thomas, joined by Justice Samuel Alito, dissented.

Federal Court Stays Texas Execution After Appeal Lawyer Abandons Prisoner

Texas federal appeals court has upheld the ruling by a U.S. district court judge to stay the execution of John Henry Ramirez, who had been scheduled to be executed in Texas on February 2. The District Court had ruled that Ramirez was entitled to a stay so new lawyers could seek clemency on his behalf after Michael Gross, the lawyer initially appointed to represent Ramirez in his state and federal habeas corpus proceedings, had failed to file a clemency petition and left Ramirez "effectively without counsel" at the time of his death warrant. The court did not rule on a second issue alleged by Ramirez's new counsel, that Gross had an inherent conflict of interest in the case because he had provided ineffective representation in state court and could not be expected to litigate his own ineffectiveness as part of the federal habeas corpus proceedings. After the federal courts denied his habeas petition, Ramirez informed Gross that he wanted to replace him as counsel, and asked him not to file a clemency petition because he wanted his new attorney to do that. The district court held that "Gross had a duty to either (1) inform the Court of his client’s wishes and seek the substitution of new counsel or (2) ensure that a clemency petition was filed on his client’s behalf. Gross did neither. Gross’ inaction prevented judicial consideration of whether the circumstances required the substitution of counsel." The court also noted that Gross had previously failed to file key motions in the death penalty case of John Battaglia, requiring the courts to issue a stay of execution in December 2016 in that case. In Battaglia's case, Gross had refused to filed a state competency petition, saying that fell "outside the scope" of his representation. The Texas Attorney General's Office appealed Ramirez's stay to the U.S. Court of Appeals for the Fifth Circuit, arguing that Gross's action constituted "gamesmanship," not abandonment. A three-judge panel of the court disagreed and dismissed the state's motion to vacate the stay. 

Missouri Set to Execute Death Row Prisoner Who Was Denied Federal Review

Missouri plans to execute Mark Christeson (pictured) on January 31, without his case ever receiving substantive review in a federal court. Christeson's appellate attorneys effectively abandoned him, failing to meet with him until a month after the filing deadline in his case had already passed. They filed his federal appeal four months late. As a result, the federal court rejected it as untimely. New attorneys offered to represent him, since the attorneys who missed the filing deadline could not effectively argue his case without admitting their own error. Two federal courts rejected the substitution before the U.S. Supreme Court granted it. A federal district court then, without explanation, denied nearly all the funding requested by his new attorneys to reinvestigate the case. In 2016, a group of former judges and three of the nation's leading criminal defense organizations filed amicus briefs with the U.S. Court of Appeals for the Eighth Circuit, urging the court to grant Christeson the funding necessary to prepare his case. His attorneys say that evidence of Christeson's intellectual impairments and abusive upbringing were never presented to a jury. On January 18, 2017, the Eighth Circuit ordered the federal district court to “convene promptly a limited evidentiary hearing on the question of abandonment.” U.S. District Judge Dean Whipple found that the missed filing deadline did not constitute abandonment and denied Christeson a stay of execution. The Missouri federal district courts have been notable for their failure to intervene in a string of controversial executions, including the cases of Cecil Clayton, Andre Cole, and Richard Strong, but according to the Columbia Daily Tribune, Christeson would be the first person executed in Missouri in the modern era of the death penalty to have had no federal appeals. [UPDATE: The U.S. Supreme Court denied Christeson's petition for certiorari and motion for stay of execution and he was executed on January 31.]

Alabama Faith Leaders Hold Panel on Death Penalty, Spotlight 'Rocky' Myers' Case of Possible Innocence

Inspired by the case of Robin "Rocky" Myers (pictured), an intellectually disabled and possibly innocent Alabama death row prisoner whom an elected state judge sentenced to death despite a 9-3 jury recommendation for life, a panel of faith leaders gathered in Montgomery, Alabama to discuss religious views on the death penalty and the intersection of faith and justice. Before the discussion began, the faith leaders and the audience viewed a screening of a new documentary on Myers' case describing why his lawyers believe he is innocent. The documentary explained that no forensic evidence links Myers to the crime and that the prosecution witness who identified him has since recanted his testimony. Myers' case also highlights other problems in the death penalty system. A neuropsychologist who evaluated Myers diagnosed him with intellectual disability, a condition that would make him ineligible for execution, but courts have not granted him relief. His disability hindered Myers' opportunities to have his appeals heard. His attorney abandoned him without notice, and Myers, who cannot read, did not know his appeal deadlines had expired until a fellow inmate read him a notification letter from the state. Finally, Myers' jury voted 9-3 that he should be sentenced to life, but—in a practice no state other than Alabama still allows— the trial judge overrode the jury's recommendation and sentenced Myers to death. After the film presented Myers' story, leaders from a variety of faith traditions led a discussion about justice and capital punishment. The multi-faith panel included representatives of Christianity, Judaism, and Islam and featured Rabbi Elliot Stevens, Sister Gilda Marie Bell, a Catholic nun of the Sisters of the Blessed Sacrament, and Aya Zaied, a youth leader for the East Montgomery Islamic Society. Zaied summarized Islamic views on the issue, saying, "If you claim Islam, … then justice is your responsibility. We try to teach that to our children really young so they understand if (someone is) hurting, then I’m hurting. We’re all in this together."

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