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Two executions blocked over lawyers’ role

The Supreme Court, delaying scheduled executions in Arizona and Texas on Monday night and Tuesday, has put itself in a position to take on an issue that has lingered unresolved for two decades: whether there is a constitutional right to a lawyer performing effectively in a new challenge started after a conviction has become final.

The Court has ruled previously that the right to a lawyer applies in several stages of a criminal case, including the first appeal after a guilty verdict is in, and it has ruled that the right includes a guarantee that the lawyer will have done an adequate job.  But the Court generally has refused to allow such a right in what is called a “post-conviction” challenge, often pursued under a habeas law once the first round of appeals is over and the conviction has become final.

However, it has left some room to recognize such a right, and the new cases seek to take advantage of that.  In each case, the claim is that the defense lawyer failed to provide an effective professional performance in a post-conviction proceeding.

In the Arizona case, involving Daniel Wayne Cook (spared by Monday night’s order), the claim is that the lawyer failed to offer evidence at the death sentencing proceeding about a deeply troubled childhood and resulting mental illness.  In the Texas case, involving Cleve Foster (spared by the Tuesday order), the claim is that the lawyer failed to put on an expert in blood evidence that could have helped prove Foster’s innocence.

In neither case did the Court actually grant review at this time.  It put off imminent executions in both cases, in order to give itself time to decide whether it will later accept one or both cases for review.   Justice Antonin Scalia dissented in the Texas case, but the delay in the Arizona case appeared to have unanimous support; there were no dissents noted.  If either case is granted, the execution will remain on hold; if review is denied in either, the case’s stay will expire automatically.

Twenty years ago, in the case of Coleman v. Thompson, the Court noted that it had previously ruled in 1987 (Pennsylvania v. Finley) and 1989 (Murray v. Giarratano) that states have no constitutional duty to provide a lawyer to represent a poor person in a state post-conviction proceeding, such as a habeas case under state law.   But the Court left open whether such a right might exist, if that proceeding was the first or only place where the convicted individual could raise a legal challenge.

In the new Arizona case, Daniel Cook was convicted and sentenced to death for a double murder he and another man committed in the other man’s apartment in Lake Havasu in 1987.  They were found guilty of killing two men with whom they had worked in a restaurant.

In Arizona, in a murder case, a post-conviction review of the case is mandatory, after the initial appeal has been tried and failed.  It is considered to be a part of the original criminal case, not a separate proceeding.  Such a review is ordered in every murder case by the state Supreme Court.

In his petition to the Supreme Court, Cook argued that he had a right to an effective lawyer at that proceeding, on the theory that it is the first review allowed by the state for claims of an ineffective defense lawyer. 

The new Texas case, involving Cleve Foster, had actually been denied review by the Justices in January (docket 10-8317).  In that appeal, Foster had noted that Texas allows an individual convicted of a capital crime to have a lawyer in a state habeas proceeding, but that Texas does not recognize a separate right that the counsel must provide an effective performance.

Texas’s Court of Criminal Appeals refused to hear Foster’s claim that his lawyer performed inadequately in a state habeas case for failing to obain a blood spatter expert; the state court said Foster could have raised that issue earlier, and forfeited it because he did not do so.

Foster had been convicted and sentenced to death for the murder of a woman companion in Fort Worth in 2002.   His new counsel contended that another man, also convicted, had accepted responsibility for the killing, and that the blood evidence would help prove Foster’s innocence.

The Supreme Court in January blocked Foster’s scheduled execution (over the dissents of Justice Scalia and Justice Samuel A. Alito, Jr.) while it considered his petition, but then lifted the stay after denying review on Jan. 18.  A new execution date was then set for April 5.

In late March, the Supreme Court granted review of a separate case, Maples v. Thomas (10-63), a seemingly narrower case testing whether a failure to satisfy a state procedural rule in a criminal case could be excused if the convicted individual was blameness for the failure, and the state had some role in the default. 

Foster’s lawyer then asked the Supreme Court to reconsider its denial of his case, arguing that the Court’s ruling in the Maples case would “have direct bearing'” on Foster’s case.   The rehearing plea argued that the state had selected the lawyer to represent Foster in the state habeas case, and picked an attorney over Foster’s protest.  Foster had tried to fire the lawyer because he had performed inadequately for Foster before.

In the order issued on Tuesday, the Court allowed Foster’s new lawyer to file the rehearing petition, ordered the state to respond within 30 days, and blocked his execution while it considers the case further.   If the rehearing is later denied, the stay will expire.  Justice Scalia was the only dissenter noted, saying he would have refused to allow the filing of the rehearing petition and would have allowed the execution to go forward as scheduled for Tuesday evening.

Recommended Citation: Lyle Denniston, Two executions blocked over lawyers’ role, SCOTUSblog (Apr. 5, 2011, 8:34 PM),