Representation

Former Judges, Criminal Defense Associations File Briefs Supporting Missouri Inmate Who Was Denied Funding for Counsel

A group of 16 former state and federal judges and three of the nation's preeminent criminal defense organizations have filed briefs in the U.S. Court of Appeals for the Eighth Circuit in support of Missouri death row inmate Mark Christeson's efforts to be afforded a meaningful opportunity to investigate and present his claims to the federal courts. Christeson was nearly executed in 2014 without ever having any federal court hear his case, after the lawyers appointed to represent him in his federal proceedings failed to meet with him until six weeks after his filing deadline had passed. After the U.S. Supreme Court ordered the district court to appoint new lawyers, a Kansas City-based court directed them to submit a proposed budget for the case. Then, without explanation, it refused to fund 94% of their requested budget, limiting the defense to $10,000 for the entire capital case. The amicus briefs urge the Eighth Circuit to overturn the funding decision, arguing that it effectively deprives Christeson of his right to counsel. The former judges brief, organized by Constitution Project, calls the district court’s ruling “nakedly partisan,” reading “less like a judicial opinion and more like a prosecutor’s brief.” They say "“When attorneys lack adequate funds to investigate and prepare submissions in a capital habeas case, the adversarial process cannot perform its essential function of revealing the truth.” In particular, they say the funding ruling prevented counsel from developing and presenting mental health evidence that Christeson's severe cognitive impairment left him unable to assert his own rights after his previous counsel had abandoned him. The second brief, filed by the National Association for Public Defense, the National Association of Criminal Defense Lawyers, and the National Legal Aid and Defender Association, joined by the MacArthur Justice Center at St. Louis, argued that, "It is not possible to maintain the integrity and fairness of capital punishment, and habeas proceedings generally, if district court judges continue to interfere with representation in this manner with no check on their abuse of discretion." Mae Quinn, the Director of the MacArthur center, said the denial of resources "is sadly consistent with the culture and ongoing challenges faced by the Missouri criminal and juvenile defense bar." Missouri ranks 49th in the nation in funding indigent defense.

New Study Explores "Systemic Deficiencies" in High-Use Death Penalty Counties

As states and counties across the United States are using the death penalty with decreasing frequency, a new report issued by the Fair Punishment Project on August 23 explores the outlier practices of 16 U.S. counties that are bucking the national trend and disproportionally pursuing capital punishment. These jurisdictions, representing one-half of one percent of all U.S. counties or county equivalents, are the only locales in the United States to have imposed five or more death sentences since 2010. Six of the counties are in Alabama and Florida, the only two states that still permit non-unanimous death verdicts. Five are located in highly-populated Southern California counties that have been the focus of repeated allegations of prosecutorial misconduct. The others include Caddo (LA), Clark (NV), Dallas (TX), Harris (TX) and Maricopa (AZ), all of which have been criticized for systemic inequities in their administration of the death penalty. Part one of the report examines the "systemic deficiencies" that contribute to the high number of death sentences in these counties and provides detailed analysis of the circumstances in 8 of the counties (a second part of the study, examining the remaining 8 counties, will be released in September). The report finds that these counties frequently share at least three types of structural failings: "a history of overzealous prosecutions, inadequate defense lawyering, and a pattern of racial bias and exclusion." The study found that these in turn "regularly produce two types of unjust outcomes which disproportionately impact people of color: the wrongful conviction of innocent people, and the excessive punishment of persons who are young or suffer from severe mental illnesses, brain damage, trauma, and intellectual disabilities." 

Defense Attorney Retires from Capital Practice After No Acquittals in 40 Years and 21 Clients Sent to Death Row

Harris County, Texas has sent more people to death row than any other county in the United States and Jerry Guerinot (pictured) was defense counsel for twenty-one of them. His death-sentenced clients included two who were juveniles at the time of the crime and another who was later freed after prosecutors dropped charges against him. Labeled by some as "the worst lawyer in the United States," in forty years of practice, none of Guerinot's capital murder clients was acquitted. Now, after decades of criticism, Guerinot says he will no longer take capital cases. Guerinot asserts that his record is a by-product of the cases he was assigned: "My theory is if they are the sorriest of the worst or the very worst, I got 'em. Somebody's got to defend - 'defend' is the wrong word - represent these people." Other attorneys, however, say he did not adequately represent his clients. "I wouldn't be here if I had better counse," Linda Carty, a British national who was one of Guerinot clients, said. "I met this guy for less than 15 minutes. Once." Although investigative assistance was available from the British consulate, Guerinot never sought it, she says. Guerinot also served as top assistant to the lead attorney for Duane Buck, whose appeal will be heard by the U.S. Supreme Court this fall based upon defense counsel's use of a psychologist who told Buck's sentencing jury that he was more likely to pose a future danger to society because he is Black. Kathryn Kase, executive director of the Texas Defender Service, said defense counsel sat silent as their witness provided racially-biased testimony against their client and "never objected to the prosecution's questions or arguments ... that skin color, race, makes someone more likely to be dangerous in the future." Jim Marcus, co-director of the Capital Punishment Clinic at the University of Texas, noted that Guerinot had four separate clients sentenced to death in a seven-month period in 1996. "It is unthinkable that a defense attorney would try four separate death penalty cases to verdict in the space of seven months," he said. Veteran capital defense lawyer and University of Houston law professor David Dow told the New York Times in 2010 that the large number of death sentences imposed on Guerinot's clients reflected a failure to conduct simple investigations. "He doesn't even pick the low-hanging fruit which is hitting him in the head as he's walking under the tree," Dow said. Guerinot said, "I'm there to ensure they get a fair shake. And, by God, there ain't one of them that didn't."

Texas Court Stays Execution of Man Convicted by Now Debunked "Shaken Baby" Testimony

The Texas Court of Criminal Appeals has granted a stay of execution to Robert Roberson (pictured), who had been scheduled to be executed on June 21 for the 2003 death of his two-and-a-half-year-old daughter, Nikki Curtis. The court's June 16 stay order halts Roberson's execution under a recent Texas law permitting court challenges based on new scientific evidence of innocence. Prosecution experts had testified at Roberson's trial that his daughter died of Shaken Baby Syndrome, asserting that the child exhibited symptoms that she must have been shaken or beaten. Roberson said she had fallen out of bed during the night, but that she seemed fine and went back to sleep. Hours later, when he checked on her again, she was blue and could barely breathe. Prosecutors charged him with murder and with sexually assaulting his daughter - although there was no evidence that she had been sexually assaulted. The sexual assault charges were later dropped, but only after the prosecution had discussed them in open court in front of the jury. The court granted Roberson review of four issues: that (1) new scientific evidence establishes that he would not have been convicted; (2) the State's use of "false, misleading, and scientifically invalid testimony” about Shaken Baby Syndrome violated due process; (3) Roberson is "actually innocent of capital murder"; and (4) "the State’s introduction of false forensic science testimony that current science has exposed as false" made his trial fundamentally unfair. "Instead of taking Robert’s explanation about a fall seriously or exploring all possible causes of the injury sustained by a chronically ill child who had been at the doctor’s office with 104.5-degree temperature only two days before," Roberson's lawyer, Gretchen Sween wrote, "a tragedy was hastily deemed a crime and a father, doing the best he could to care for his daughter despite severe cognitive impairments, was branded a murderer." Roberson presented affidavits from four medical experts challenging the accuracy and scientific validity of the State's shaken baby testimony. Forensic pathologist Dr. Harry Bonnell, in an opinion shared by all four defense experts, wrote: "it is impossible to shake a toddler to death without causing serious neck injuries—and Nikki had none." They suggest several alternate theories for Curtis' death, including meningitis caused by an ear infection, a fall like the one Roberson described to investigators, or a congenital condition. Roberson's appeal argues that, "[w]hen the trial record is viewed through the lens of current science and evidence-based medicine, it is clear that he is innocent of capital murder." The court returned the case to the trial court in Anderson County to conduct an evidentiary hearing on Roberson's claims. 

U.S. Supreme Court Grants New Trial to Louisiana Death Row Inmate

The U.S. Supreme Court issued a per curiam decision on March 7 granting a new trial to Louisiana death row inmate Michael Wearry as a result of multiple acts of misconduct by prosecutors in his case. No physical evidence linked Wearry to the murder. His conviction was based largely on the testimony of an informant, Sam Scott, who came forward two years after the crime with an account that did not match the details of the crime. Scott altered his story over the course of four different statements, and the testimony he gave in court barely resembled his original statement. Undisclosed police records later revealed that another inmate had heard Scott say he wanted to "make sure [Wearry] gets the needle cause he jacked over me." A second witness against Wearry was offered a reduced sentence for an unrelated conviction, but prosecutors falsely told the jury that he had "no deal on the table” and was testifying because the victim’s "family deserves to know” what happened. Wearry presented three alibi witnesses - his girlfriend, his sister, and his aunt - who corroborated his story that he had been at a wedding 40 miles away when the crime occurred, but his attorney failed to further investigate the alibi or call as witnesses any of the wedding guests who did not have close relationships with Wearry. The Court wrote, "Beyond doubt, the newly revealed evidence suffices to undermine confidence in Wearry’s conviction. The State’s trial evidence resembles a house of cards, built on the jury crediting Scott’s account rather than Wearry’s alibi." Justices Alito and Thomas dissented, saying the case should not have been decided without a full hearing. Louisiana police and prosecutors have been found to have engaged in misconduct in numerous death penalty cases, including those of all ten of its death-row exonerees: Johnny Ross, Curtis KylesShareef CousinMichael GrahamAlbert Burrell, John Thompson, Dan BrightRyan Matthews, Damon Thibodeaux, and Glenn Ford.

Supreme Court Petition Alleges Second Conflict of Interest by Same Lawyers Accused of Abandoning Executed Texas Prisoner

 Lawyers for Texas death row prisoner Robert L. Roberson III have filed a petition asking the United States Supreme Court to review whether Seth Kretzer and James W. Volberding - the same appointed lawyers who were accused of abandoning Raphael Holiday, whom Texas executed in November - had a conflict of interest that interfered with Mr. Roberson's right to an independent legal advocate in his federal habeas corpus proceedings challenging his conviction and death sentence. In his petition, Roberson argues that his trial lawyer failed to investigate and present important mitigating evidence in the penalty phase of his case and that Kretzer and Volberding have a conflict of interest that prevented them from properly litigating that claim. Volberding represented Roberson in his state post-conviction appeals and failed to present any claim or evidence relating to counsel's penalty-phase investigative failures. He was then appointed to represent Roberson in federal court, but his prior failure to have challenged trial counsel's penalty-phase performance forfeited that claim unless Roberson could show that Volberding had unreasonably failed to raise the claim in state court. Kretzer was appointed as "supplemental counsel" to review Volberding's performance and failed to challenge Volberding's conduct. However, unkown to Roberson, Kretzer and Volbering had a close professional association, having been jointly appointed as paid co-counsel in a number of capital habeas cases. When Roberson learned of their association, he asked for new "supplemental counsel," which Kretzer and Volberding opposed. Charles Herring, Jr., an ethics expert and author of a treatise on Texas legal ethics and malpractice, and Lawrence J. Fox, former chairman of the ABA Standing Committee on Ethics and Professional Responsibility, say in affidavits supporting Roberson's petition that Volberding and Kretzer have conflicts of interest that should prevent them from representing Roberson. The Court is expected to decide in early December whether to hear Roberson's case. Kretzer and Volberding have written to the Court requesting that it dismiss the petition and permit them to file their own petition raising other issues.

Texas Inmate Faces Execution After Appeals Lawyers Abandon His Case

Raphael Holiday (pictured) is scheduled to be executed in Texas on November 18 after appeals lawyers who were appointed to his case unilaterally decided not to seek clemency or pursue additional appeals and then opposed Holiday's efforts to replace them with lawyers who would. James "Wes" Volberding and Seth Kretzer say that they were unable to find new evidence on which to base any appeal and that seeking clemency from Texas Gov. Greg Abbott would give Holiday "false hope" and is pointless. When another attorney, Gretchen Sween, stepped in to help Holiday find new counsel, his current attorneys opposed her efforts to replace them. They then filed a clemency petition prepared so hastily that it twice gives the wrong execution date. The lawyers say they were exercising professional discretion in abandoning efforts to spare Holiday's life, but death penalty experts assert that counsel are required to pursue all available avenues to stop a client's execution. Stephen Bright, a Yale law professor and president of the Southern Center for Human Rights, said that in decades of practice in capital cases he has never seen appointed lawyers fight so vigorously to prevent their client from retaining new counsel. "This seems unconscionable," he said. "Lawyers are often in a position of representing people for whom the legal issues are not particularly strong, but nevertheless they have a duty to make every legal argument they can." Jim Marcus, a University of Texas law professor and veteran death penalty lawyer, agreed that Holiday's attorneys are legally required to continue pursuing appeals: "There’s a difference between saying that’s not a viable strategy or viable claim and abandoning an entire proceeding altogether. The latter is not really permissible ...."

U.S. on Track for Fewest Executions, New Death Sentences in a Generation

Both executions and new death sentences in the United States are on pace for significant declines to their lowest levels in a generation, Reuters reports. With 25 executions conducted so far this year, and only two more scheduled, the United States could have its lowest number of executions since 1991, significantly below the peak of 98 executions in 1999. Only 8 states have carried out executions in the last two years, down from a high of 20, also in 1999. New death sentences, which peaked at 315 in 1996, declined to 73 last year, and that number is expected to drop even further this year. The slowdowns in executions and new death sentences are just two of several indicators that the U.S. is moving away from capital punishment. Reuters reports that these changes come from a combination of factors, including the high cost of death penalty cases, the recent problems surrounding lethal injection, and improved capital representation in high-use states. Texas and Virginia, two of the death penalty states that historically have been the most aggressive in carrying out executions, stand out as examples of the punishment's declining use. Both states have implemented major reforms in indigent defense in recent years, producing dramatic changes in the death penalty landscape. In Texas, which had 48 death sentences in 1999, juries have handed down only three death sentences so far this year. Virginia, which has executed the highest percentage of death row inmates of any state, is on track to have no death sentences for the fourth consecutive year.

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