Dec. 1
TEXAS:
2 Texas death row inmates say their lawyers are failing them
In the hours before Raphael Holiday was put to death by lethal injection
earlier this month, he made a final appeal to the Supreme Court. The convicted
Texas murderer argued that his 2 court-appointed lawyers had abandoned him by
not filing a last-ditch petition for clemency.
Now, another man on death row in Texas is accusing the same two lawyers of
failing to provide him with effective counsel. In a petition to the Supreme
Court, Robert Roberson alleges that they haven't pursued a key legal avenue in
his appeal because of a conflict of interest.
The lawyers, James Volberding and Seth Kretzner, say they've represented their
clients effectively, and that the claims against them have been instigated by
outside attorneys. "We're practical street lawyers. We deal with reality, not
the world that you wish it was," Volberding told me. "Some other lawyers - we
call them dreamy-eyed - want to pursue any conceivable option, even though it's
completely unrealistic."
But the legal duo is facing the unusual situation of opposing court motions
filed by 2 of their their own clients within a few weeks. Their actions have
raised eyebrows in the insular world of capital punishment attorneys - and at
the Supreme Court.
Being a death penalty lawyer means following complicated, technical appeals
processes, often with only a vanishing chance of winning. That's especially so
in Texas, which has accounted for more than 1/3 of all executions in the
country since 1976.
In both the Holiday and Roberson cases, the question seems to focus on whether
a lawyer must exhaust every possibility of avoiding an execution - or whether
it's better to be realistic about which claims are likely and which have
virtually no chance of success.
Let's start with Holiday. He was sentenced to die in 2002 for burning a house
down with his 18-month-old daughter and her 2 half-sisters inside. His
mother-in-law testified during trial that he forced her at gunpoint to spread
gasoline while the kids watched. Then he lit a match.
Volberding and Kretzner represented Holiday in his federal appeal. They filed a
long petition alleging mistakes in the trial. But they lost at every level, and
in June, the Supreme Court declined to hear the case.
Holiday asked Volberding and Kretzner to file a clemency petition on his
behalf. They declined, telling him that success was highly unlikely. Clemency
requires approval from a state board as well as the governor. Only 2 death row
inmates in the last 20 years have won clemency in Texas.
"It was our professional opinion that a clemency petition did not have a
realistic chance of success and merely raised false hopes," Volberding told me.
"We hate the situation that ultimately happens, where someone is sitting there
on the day of the execution waiting for a 1 in a million or 1 in a billion
chance that their petition is going to work," Kretzner added.
But federal law stipulates that attorneys appointed to represent death row
clients shall represent them in "all available post-conviction proceedings."
And legal experts say there isn't wiggle room, even if a win seems as likely as
a snowstorm in San Antonio.
"There should have been a federally appointed lawyer who was looking after
[Holiday's] interests instead of letting him to go the execution chamber
essentially unrepresented," said Jordan Steiker, the head of the University of
Texas Law School's capitol punishment center.
What happens when a murder suspect facing the death penalty represents himself
in court?
After Holiday took on the services of a pro bono attorney who filed a motion to
have Volberding and Kretzner removed from the case (the 2 lawyers are being
paid by the court), the lawyers soon changed their minds and filed what they
admit was a hastily-written clemency petition--Volberding characterized it as
"very quickly and effectively" done. The petition was denied.
2 weeks ago, on the day of his scheduled execution, Holiday's former trial
attorney made a final appeal to the Supreme Court, which was denied. But in an
unusual turn of events, Supreme Court Justice Sonia Sotomayor issued a
statement naming Volberding and Kretzner, more or less rebuking them for having
"abandoned" their client. "So long as clemency proceedings were 'available' to
Holiday, the interests of justice required the appointment of attorneys who
would represent him in that process," she wrote.
After reviewing Sotomayor's statement, Volberding said he and Kretzner will be
filing clemency petitions in all of their death penalty cases going forward.
***
Only a few weeks after Holiday's execution, the Supreme Court will once again
consider a motion by one of Volberding and Kretzner's death row clients asking
to have his lawyers removed. On Friday, the Court will hear a petition by
Robert Roberson, who alleges that they've failed to adequately represent him
because of a conflict of interest.
Roberson, 49, was convicted in 2003 of murder in the 1st degree for killing his
2-year-old daughter by dropping or throwing her. Prosecutors originally alleged
that he also sexually assaulted her, but dropped those charges by the end of
his trial.
Roberson's claim is a little more complicated. It's important to understand
that most death penalty cases fall into three consecutive stages: the trial,
the state appeals, and then the federal appeals. You can't introduce new
arguments in the federal appeals stage that you didn't make in the state
appeals stage. Volberding represented Roberson solo during the state appeals,
and was unsuccessful. Now, he and Kretzner are representing Roberson during the
federal appeals.
Roberson wants to argue during his federal appeal that his trial court attorney
didn't do a thorough enough investigation of mitigating evidence - a claim
under the Sixth Amendment. But it's an argument that Volberding didn't make
during the state appeals process. Roberson is now only allowed to argue that
his trial attorney was ineffective if he also argues that his state appeal
attorney - Volberding - was also ineffective.
Roberson asked Volberding and Kretzner to make this argument, but they
declined, saying that it wasn???t an issue because there was no evidence
supporting the underlying claim of the trial attorney not doing enough. "We
looked at that issue and we did not find any substantial evidence to support
that claim," Volberding said. "We must make credible claims to the federal
court - we are prohibited from making frivolous ones."
So Roberson filed a motion in May to have Volberding and Kretzner removed or
have a new lawyer appointed. Roberson says it's a conflict of interest because
Volberding would have to essentially argue that he himself was ineffective. The
lawyers opposed his motion, and an appeals court agreed with them. Now,
Roberson is taking that decision to the Supreme Court.
Lee Kovarsky, an attorney with the nonprofit Texas Defender Services who's
representing Roberson pro bono for the change of attorney motion, said his
organization received "a series of letters" from Roberson complaining about his
attorneys.
"The client wants the [ineffective counsel] claim pursued, and they're
obstructing that from happening," Kovarsky said. "They're very concerned about
their professional reputations... If they have a conflict of interest, they're
supposed to get off the case."
Steiker, the law professor, said the Roberson case seemed to be a clear
conflict of interest. "It would be hard for them to concede their own
ineffectiveness," he said. "I'm sort of surprised and shocked that they would
remain on the case when there's any question about whether they're in a
position to zealously represent Roberson's interests."
The Supreme Court is expected to issue a decision next week about whether it
will hear Roberson's request to switch attorneys.
The 3 lawyers say that in both Holiday's and Roberson's case, outside lawyers
"helicoptered in" at the last minute, meeting with their clients and convincing
them to file motions to change attorney. "It's a litigation tactic," Volberding
said. "What they are attempting to do is force a delay in the execution, in
both cases."
Kovarsky denied that. "This is about the inmate having a chance to litigate a
claim that might save his life," he said.
(source: Casey Tolan, fusion.net)
OHIO----death sentence overturned
Court sets aside death penalty for Hamilton Co. killer----Rayshawn Johnson
convicted of killing neighbor in 1997
The Ohio Supreme Court has set aside the death penalty for a Hamilton Co. man
convicted of killing his neighbor.
Rayshawn Johnson was convicted of killing Shanon Marks with a baseball bat in
1997. He was sentenced to death in 1998, but appealed in 2006.
At that time, a federal court agreed with Johnson that he had received
ineffective assistance of counsel during the mitigation phase of his trial and
instructed the state to either commute Johnson's death sentence or hold a new
mitigation hearing.
A new jury recommended death again in January 2012.
In Tuesday's decision, the Ohio Supreme Court rejected Johnson's arguments, but
in an independent investigation, found that that the aggravating circumstances
in the case were not outweighed beyond a reasonable doubt by the mitigating
factors.
Justice Paul E. Pfeifer wrote that the aggravating circumstances in this case
were not outweighed beyond a reasonable doubt by the mitigating factors.
Pfeifer described the cumulative effect of multiple mitigating factors,
including Johnson's ill-fated childhood, which when considered together made a
sentence of death inappropriate.
The Court described the evidence presented in mitigation during the hearing.
Johnson's mother, who did not testify at Johnson's first trial, stated that she
had Johnson when she was 16 years old and explained that she often put him in a
closet when he was an infant and also gave him prescription drugs and heroin in
his bottle or applesauce. When Johnson was 12 or 13, she taught him how to
drink and how to take and deal drugs.
Johnson's grandmother, who was responsible for him and a younger brother for
several years, said she whipped and hit the boys and that drinking alcohol was
her priority.
A psychologist who evaluated Johnson testified that the defendant was never
taught right from wrong. He diagnosed Johnson with a form of depression as well
as alcohol and marijuana addictions.
Pfeifer reasoned that this dysfunctional, troubled background was entitled to
significant weight as a mitigating factor when evaluating the death sentence.
The Court also gave some weight to several other issues.
The court set aside the death penalty in a 4-3 vote.
In reviewing all the factors combined, the Court determined they held "great
cumulative weight" to the point that the aggravating circumstances did not
outweigh the mitigating issues beyond a reasonable doubt. Acknowledging this
was the pointless and inexcusable killing of an innocent woman, Justice Pfeifer
concluded, however, that a sentence of death was not appropriate in this case.
The case will return to the trial court for resentencing.
(source: WLWT news)
USA:
No Trial Date or Death Penalty Decision in Dylann Roof Federal Case
There is still no trial date in the federal case against accused Charleston
church shooter Dylann Roof, and still no decision on whether prosecutors will
seek the death penalty.
At a hearing this morning, Judge Richard Gergel heard from both sides of the
case on their progress towards trial. Prosecutors said their case likely
wouldn't be ready before Roof's trial on state charges in July. One reason for
the delay is the lack of resolution on the death penalty. Roof's attorneys have
already indicated his willingness to plead guilty to the federal charges if the
death penalty is taken off the table. But that decision likely won't come for a
few more months as the government says it will forward the case to a committee
that will then make a recommendation to the attorney general on whether the
death penalty should be sought.
Roof faces 33 federal charges in the June 17th shootings at Emanuel AME church
in downtown Charleston that left 9 people dead and 3 others wounded. Ninth
Circuit Solicitor Scarlett Wilson has already said she intends to seek the
death penalty for Roof on the state charges.
(source: NBC news)
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