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In the crosshairs of conscience: John Kitzhaber's death penalty reckoning

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To cope with his dread, John Kitzhaber opened his leather-bound journal and began to write.
It was a little past 9 on the morning of Nov. 22, 2011. Gary Haugen had dropped his appeals. A Marion County judge had signed the murderer's death warrant, leaving Kitzhaber, a former emergency room doctor, to decide Haugen's fate. The 49-year-old would soon die by lethal injection if the governor didn't intervene.
Kitzhaber was exhausted, having been unable to sleep the night before, but he needed to call the families of Haugen's victims.
"I know my decision will delay the closure they need and deserve," he wrote.
The son of University of Oregon English professors, Kitzhaber began writing each day in his journal in the early 1970s. The practice helped him organize his thoughts and, on that particular morning, gather his courage.
Kitzhaber first dialed the widow of David Polin, an inmate Haugen beat and stabbed to death in 2003 while already serving a life sentence fo…

Court Finds Extraordinary Misconduct by Attorney for Alabama Death Row Prisoner

The Alabama Court of Criminal Appeals held on Friday that death row inmate John Ward's attorney's failure to file an appeal on time was egregious unprofessional conduct.

John Ward was convicted of capital murder and sentenced to death in 1998. In July 2002, his family hired a lawyer to file a petition in state court to challenge Mr. Ward's conviction and sentence. The petition was due on August 1, 2003. The lawyer assured Mr. Ward that he would file the petition on time, but without telling Mr. Ward or his family, he decided not to file a petition in state court as he was hired to do.

Mr. Ward wrote dozens of letters and called his attorney multiple times about the status of his petition. When he couldn't reach his lawyer, he wrote to the court, which notified him that no petition had been filed. Mr. Ward asked the court for more time and a new lawyer to file his petition, but it was already too late.

In 2005, a different lawyer finally filed Mr. Ward's petition in state court, but it was dismissed because it was filed long after the deadline. On appeal, the Alabama Supreme Court acknowledged that a late filing can be excused if the attorney's actions are "far enough outside the range of behavior that reasonably could be expected by a client that they may be considered 'extraordinary.'" The court ruled that Mr. Ward should have a chance to prove that the late filing was not his fault and should be excused because of his lawyer's unprofessional conduct.

On Friday, the Alabama Court of Criminal appeals agreed that his attorney's conduct was sufficiently egregious to excuse Mr. Ward's late filing. "Ward instructed his retained attorney to file a postconviction petition in the circuit court," the court explained. "Instead, the attorney disregarded his client's express wishes . . . thereby violating one of his basic obligations as an attorney –- the obligation to defer to his client's wishes on major decisions." Further, the court found that "Ward did not sit on his rights but that he repeatedly sought help in both state court and federal court."

The failure to provide adequate counsel to capital defendants and death row prisoners is a defining feature of the American death penalty. There is no statewide public defender office to provide legal assistance to people on Alabama's death row, and the United States Supreme Court has detailed the deficiencies in the state's death penalty system.

Source: Equal Justice Initiative, February 16, 2017

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