"One is absolutely sickened, not by the crimes that the wicked have committed, but by the punishments that the good have inflicted." - Oscar Wilde

Friday, December 4, 2015

The Death Penalty in Texas and a Conflict of Interest

U.S. Supreme Court
Robert L. Roberson III was convicted in 2003, in Anderson County, Texas, of murdering his two-year-old daughter. In determining his punishment, the difference between a death sentence and one of life in prison hinged on the demonstration of what Texas law calls a “sufficient mitigating circumstance,” such as a mental illness or impairment. It’s likely that he suffered from both. But while the trial record is full of red flags, such as an I.Q. score of eighty-seven in junior high school, a history of organic brain damage from concussions and other traumas, and testimony that he was “very likely” abused as a child, his trial lawyer didn’t do much of an investigation into his mental-health record or his family history. The trial court didn’t do what it should have to document his mental-health history, either. He was sentenced to death.

As an indigent person—he had been in and out of prison during the previous dozen years, for burglary, passing bad checks, and violations of parole—Roberson had qualified for counsel paid for by the government and was appointed a new lawyer to represent him in appealing the case. That lawyer failed to make a claim in state court that the trial counsel was ineffective, and this failure is at the heart of a petition about the case that the Supreme Court is scheduled to consider on Friday. It would be a miscarriage of justice if the Court decided not to take the case and grant Roberson the hearing he seeks.

In 2012, in Martinez v. Ryan, the Court made a groundbreaking ruling that, in a case like this one, in which an inmate is seeking relief under a federal writ of habeas corpus, a federal court can allow the inmate to pursue a claim of ineffective counsel if the lawyer representing him on appeal in state court failed to make that claim. The problem for Roberson is that the lawyer appointed to represent him in the state appeal, James Volberding, was also appointed to represent him in the federal appeal—and failed to point out his earlier failure. As the petition now before the Supreme Court puts it, “Because lead counsel Mr. Volberding was Roberson’s state post-conviction lawyer, a Martinez argument required him to attack his own performance.”

Volberding told me that there was nothing to attack. “We looked for any compelling evidence about Roberson’s character or upbringing that would have led a jury not to give him a death sentence and there was nothing,” he said. But that seems to sidestep the issue, and perhaps to misrepresent it: Volberding’s position is that he refused to present a frivolous claim. But he presented in federal court the claim that he said he refused to present in state court—and the judge turned it away because he had forfeited it, by not raising it during the state proceeding.

In a crudely printed, hand-written note, Roberson asked the federal trial court to appoint him a different lawyer, but the court said no. Roberson then asked Volberding to request that the federal trial court review his claim about ineffective counsel, and made sure that the court knew about that request by sending the court a copy of his letter to Volberding. But neither Volberding nor his co-counsel, Seth Kretzer, asked the court for the review. (Kretzer told me, “The thing about a Martinez claim is that it has to begin with facts showing the deficiency of trial counsel and we didn’t find any.”) When a federal magistrate judge recommended that Roberson’s habeas bid be denied, as Roberson’s petition to the Supreme Court summarizes, the magistrate noted that Volberding and Kretzer did not argue “the inadequacy of state post-conviction representation necessary to excuse its default”—that is, necessary for the court to let Roberson pursue his claim under the Martinez precedent. The magistrate wrote, “The Court would note that Roberson’s federal counsel was also his state habeas counsel, and he had the opportunity to present the claim in the state habeas corpus proceedings; nonetheless, he failed to present the claim until the present proceeding.”

Volberding had an obvious conflict of interest. As the U.S. Court of Appeals for the Fourth Circuit wrote about a similar case, in 2013, it is “ethically untenable” and a violation of a client’s rights under federal law to require that his or her lawyer “assert claims of his or her own ineffectiveness in the state habeas proceedings.” The court found that when a “petitioner requests independent counsel in order to investigate and pursue claims under Martinez,” it is “ethically required”—the court put those words in italics—that he have “qualified and independent counsel.”

As for Kretzer, he had a conflict of interest because his job was to work effectively with Volberding.

Source: The New Yorker, Lincoln Caplan, December 3, 2015 

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