Federal Court Grants New Trial to Nevada Death-Row Prisoner, Blasts State for Providing Inexperienced, Inadequately Resourced Defense Counsel

The United States Court of Appeals for the Ninth Circuit has affirmed a Nevada dis­trict court’s grant of a new tri­al to death-row pris­on­er Mark Rogers, blast­ing the state for pro­vid­ing him with inex­pe­ri­enced coun­sel who lacked the knowl­edge and resources to com­pe­tent­ly defend a cap­i­tal tri­al. In a 2 – 1 deci­sion issued on February 14, 2022, the appeals pan­el upheld a September 23, 2019 rul­ing by District Court Judge Gloria M. Navarro hold­ing that the pub­lic defend­er assigned to rep­re­sent Rogers pro­vid­ed inef­fec­tive rep­re­sen­ta­tion while attempt­ing to present an insan­i­ty defense in the guilt phase of his 1981 death-penalty trial. 

In a unan­i­mous state­ment accom­pa­ny­ing the opin­ion, Circuit Judge Andrew D. Hurwitz (pic­tured) wrote, ​“if a State choos­es to impose cap­i­tal pun­ish­ment, it has the oblig­a­tion to pro­vide expe­ri­enced defense coun­sel with the abil­i­ty, resources, and time to han­dle life and death mat­ters.” The issues pre­sent­ed in Rogers’s case ​“might have been avoid­ed,” he said, ​“had Nevada paid suf­fi­cient atten­tion to the appoint­ment of qual­i­fied capital counsel.”

Rogers, Hurwitz wrote, ​“went on tri­al for his life defend­ed by two rel­a­tive­ly inex­pe­ri­enced and over­worked lawyers [whose] appoint­ments would not have passed muster” under the American Bar Association guide­lines for the defense of cap­i­tal cas­es. ​“We are here today not only because of counsel’s rep­re­sen­ta­tion,” he wrote, ​“but also because Nevada failed to hon­or its oblig­a­tion to pro­vide com­pe­tent capital counsel.”

Rogers was con­vict­ed and sen­tenced to death for the mur­ders of three mem­bers of a fam­i­ly he came upon while hitch­hik­ing in Nevada. People who encoun­tered him at the time described him as act­ing errat­i­cal­ly. Two days before the mur­ders, Rogers told a man who gave him a ride that he lived in a pyra­mid and that ​“Somebody is shoot­ing rock­ets off of Mount Olympus and one of these days it will hit my pyra­mid and blow me up.” Three days after the mur­ders, hav­ing crashed the vic­tims’ car, he tried to enter Canada ​“wear­ing a parka­like coat with what appeared to be a tow­el wrapped around his head or neck.” He told Canadian bor­der offi­cials that he was the ​“Emperor of North America” and was seek­ing polit­i­cal asy­lum because he was being per­se­cut­ed by the CIA, motor­cy­cle gangs, the FBI, and the Mafia. He was denied entry.

After his arrest, he was charged with cap­i­tal homi­cide when, in the words of the appeals court, ​“new­ly mint­ed attor­ney Virginia Shane was appoint­ed as lead coun­sel” in his case. Shane was the only lawyer in a satel­lite office of the Nevada State Public Defender’s office and had passed the Nevada bar exam only four months before. She had nev­er tried a cap­i­tal case, nev­er pre­sent­ed an insan­i­ty defense, and had an 80-case case­load that includ­ed anoth­er cap­i­tal case and anoth­er first-degree mur­der case. The appeals pan­el wrote, ​“the deck was stacked against her.”

A sec­ond lawyer was added to the case three months before tri­al. However, he too had nev­er han­dled a cap­i­tal case or pre­sent­ed an insan­i­ty defense, and he had been prac­tic­ing law only four years. 

At least ten men­tal health pro­fes­sion­als eval­u­at­ed Rogers in the eight months before tri­al, which includ­ed court pro­ceed­ings to deter­mine whether he was com­pe­tent to stand tri­al. Although Shane had decid­ed imme­di­ate­ly after her appoint­ment to present a defense of not guilty by rea­son of insan­i­ty, the pan­el wrote, she ​“wait­ed until the month before tri­al to dis­cuss the issue of insan­i­ty with any men­tal health professional.” 

Shane chose three doc­tors to tes­ti­fy but, the court said, ​“nev­er met with them before tri­al or pre­pared them for their tes­ti­mo­ny … or discuss[ed] the report of the State’s expert”; nev­er gave them ​“the police reports detail­ing Rogers’s extra­or­di­nary behav­ior before and after the offense”; ​“did not even dis­cuss Rogers’s men­tal state at the time of the offense … before they took the stand.” Shane also nev­er met in per­son with the one expert with whom she did dis­cuss an insan­i­ty defense, nev­er spoke with him about oth­er expert reports that con­tra­dict­ed his diag­no­sis that Rogers was schiz­o­phrenic, and failed to pro­vide him with the dai­ly progress notes that detailed Rogers’s behav­ior in the facil­i­ty in which he was being eval­u­at­ed for competency.

In addi­tion, Shane failed to con­sult with one doc­tor who had eval­u­at­ed Rogers five times before tri­al, diag­nosed him with schiz­o­phre­nia, and pre­vi­ous­ly giv­en favor­able tes­ti­mo­ny about Rogers’s com­pe­ten­cy at the time of the offense. As a result, she nev­er learned that he would have pro­vid­ed tes­ti­mo­ny sup­port­ing an insan­i­ty defense and nev­er asked him to tes­ti­fy at trial. 

The cir­cuit pan­el agreed with the dis­trict court that, while the defense fail­ures were ​“due at least in part to fac­tors out­side of tri­al counsel’s per­son­al con­trol,” the ​“inves­ti­ga­tion, prepa­ra­tion, and exe­cu­tion of their cho­sen insan­i­ty defense fell below an objec­tive stan­dard of rea­son­able­ness.” Finding a rea­son­able prob­a­bil­i­ty that the jury would have returned a ver­dict of not guilty by rea­son of insan­i­ty had tri­al coun­sel per­formed com­pe­tent­ly, the court reversed Rogers’s con­vic­tion and gave pros­e­cu­tors the option to either retry him or accept a not-guilty-by-reason-of-insanity verdict. 

Judge Mark J. Bennett agreed that defense counsel’s per­for­mance at tri­al had been defi­cient. However, find­ing the evi­dence of both guilt and san­i­ty ​“over­whelm­ing,” he dis­sent­ed from the panel’s ruling.