[Deathpenalty] death penalty news----TEXAS, ALA., IND., ARK., MO., ARIZ., ORE.

[Rick Halperin]

Dec. 3



TEXAS:

The Death Penalty in Texas and a Conflict of Interest


Robert L. Roberson III was convicted in 2003, in Anderson County, Texas, of 
murdering his 2-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 87 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. If Kretzer had brought up with the federal court 
Volberding's failure to make the claim about his own ineffective counsel in 
state court, he would have undermined their business relationship - and, as 
lawyering goes, that relationship is close. Roberson's petition to the Supreme 
Court identifies 4 cases on the docket of the U.S. Court of Appeals for the 
Fifth Circuit in the past thirty months in which Volberding and Kretzer have 
been co-counsels and a 5th case in which Kretzer replaced Volberding. 
Roberson's petition notes, "According to that docket, during the past 30 
months, Mr. Volberding has not co-counseled in a capital habeas appeal with any 
attorney other than Mr. Kretzer."

Charles Herring, Jr., an expert in legal ethics who wrote a treatise on "Texas 
Legal Malpractice & Lawyer Discipline," gave his opinion about this 
relationship and its bearing on the Roberson case, which the petition quotes: 
"Given that ongoing personal and professional relationship, Mr. Kretzer would 
appear to have a personal interest in avoiding taking a position that attacked 
Mr. Volberding or that was otherwise substantially adverse to Mr. Volberding."

In May of this year, Volberding and Kretzer took a step beyond their failure to 
represent Roberson's interests. When Roberson asked the Fifth Circuit to let 
him represent himself or to appoint him new and independent counsel - a lawyer 
without any conflict of interest - they actively opposed the motion, writing, 
"Simply put, he already has what he is asking for." They claimed that Kretzer 
made a fresh review of the full case record and "found no claim or potential 
claim that was not raised, or raised incorrectly, by Mr. Volberding." Relying 
on those inaccurate statements, the Fifth Circuit denied Roberson's motion in 
June, calling Kretzer "conflict-free counsel" and saying that a "difference of 
opinion is not grounds for finding a conflict of interest or for appointing a 
third lawyer."

If Roberson weren't indigent, he could fire his lawyers and hire new ones. 
Because he can't, Volberding and Kretzer remain "the longtime lawyers for Mr. 
Roberson," as they put it in a 15-page letter to the Supreme Court, opposing 
his current appeal, which, as they also said, was filed "by a trio of lawyers 
who do not actually represent Mr. Roberson." These lawyers, from The Texas 
Defender Service, are working on behalf of Roberson for free. Lee Kovarsky, the 
post-conviction director at the Defender Service, told me, "We helped Mr. 
Roberson move for an additional attorney because a seriously impaired inmate 
facing execution has a right, just like any client with money, to have his 
defenses litigated zealously by lawyers that are not subject to a conflict of 
interest. He does not lose his right to conflict-free representation just 
because he is indigent."

On Wednesday, Volberding and Kretzer filed a petition asking the Supreme Court 
to take Roberson's case, on different grounds: "that individuals have the right 
to present their complete defense" and that Texas "excluded Roberson's expert, 
who would have testified that Roberson suffered an organic brain disorder, 
specifically, post-concussional syndrome, which consequently impaired 
Roberson's ability to make rational decisions or carry out an act such as this 
intentionally or knowingly."

If the Court decides not to take his case - at this time of year, the average 
rate of success for petitions is said to be around 3 % - there is a good chance 
that Texas will execute him. Since the death penalty was reinstituted in 1976, 
the state has been responsible for 531 of the 1421 executions in the country, 
nearly 5 times as many as the 2nd-ranked state of Virginia. This year, Texas 
has executed 13 of the 27 people put to death.

Raphael Holiday was the most recent inmate executed by Texas, in November. 
Volberding and Kretzer represented him. When the Supreme Court denied Holiday's 
petition for the Justices to consider his case, Volberding wrote him a letter 
saying, "Mr. Kretzer and I are not going to file further appeals for you." They 
advised, "The only remaining option is for a clemency petition to the Texas 
governor, but we do not recommend that because he is not going to grant 
clemency in this case, or likely in any other death penalty case. A clemency 
petition just gives an inmate false hope."

The Holiday case went back to the Supreme Court once more: a lawyer named 
Gretchen Sims Sween had volunteered to help Holiday find new counsel and had 
received a letter from Volberding and Kretzer threatening her with sanctions if 
she did not stay away from their client. Sween filed a petition asking the 
Court to stay Holiday's execution while it considered whether he was entitled 
to new counsel, since his old counsel had refused "to pursue further available 
post-conviction proceedings." The Court denied the application for a stay of 
execution, and Texas immediately put Holiday to death. That day, Justice Sonia 
Sotomayor issued a statement that, by name, accused Volberding and Kretzer of 
abandoning Holiday "at the last moment." While they were shamed into filing an 
unsuccessful clemency petition for him after the lower court denied his request 
for new counsel, the Justice observed in her statement that the application 
"likely would have benefited from additional preparation by more zealous 
advocates."

In response, Kretzer told me, "I respectfully disagree with Justice Sotomayor, 
and so did the Fifth Circuit. It's simply not true that we abandoned Mr. 
Holiday." He also said, "He wanted a clemency petition, we filed a clemency 
petition, and it didn't work out." Volberding told me, "We were tasked by the 
Federal District judge to represent Roberson and Holiday as aggressively as we 
could within the bounds of the statutes, and we have not hesitated to do that."

To experienced anti-death-penalty lawyers such as Stephen Bright, the president 
of the Southern Center for Human Rights, lawyers representing a client who 
faces imminent execution "have a duty to make every legal argument they can." 
The Supreme Court doesn't need to answer the question of how zealous a lawyer 
must be, but it must reckon with a closely related one: how serious are the 
Justices about insuring that defendants in habeas cases get good 
representation? In states that have retained and used the death penalty, it has 
been standard practice for the lawyer handling a state appeal to handle the 
federal one. Because states generally pay lawyers poorly for handling these 
cases, and many of those lawyers do poor jobs, cases like Roberson's are 
emerging around the country.

In the Holiday case, as in Roberson's, Volberding and Kretzer obstructed their 
client from getting representation on a claim they refused to pursue. Instead 
of being his zealous advocates, they functioned as his self-interested 
adversaries. Holiday was executed. Roberson is on his way to execution, too, 
unless the Supreme Court grants his petition.

(source: Lincoln Caplan, The New Yorker)






ALABAMA:

Kevin Andre Towles found guilty of capital murder in death of 5-year-old 
Geontae Glass


There was no visible reaction from Kevin Andre Towles Wednesday morning as 
Etowah County jurors found him guilty of capital murder in the death of his 
girlfriend's 5-year-old son.

Geontae Glass died in December 2006 from complications of blunt force trauma 
injuries.

Prosecutors said the boy received beatings over the course of that first 
weekend in December, and that Towles administered the beatings.

He and the boy's mother, Shalinda Glass, then faked the theft of her car and 
claimed the boy was asleep in the back seat. The child already was dead, but 
had been strapped into his car seat.

His body was found late that night in the trunk of his mother's car, hidden in 
a garage at Towles' home on Shady Grove Road in Boaz.

Jurors will return to the courtroom at 1:30 p.m. as the penalty phase of the 
trial begins.

The state and defense will present testimony, and jurors will decide whether to 
recommend a sentence of life in prison without parole or the death penalty.

Towles was tried for the boy's death in 2009. He was convicted and sentenced to 
death, but the case was remanded by the Alabama Court of Criminal Appeals for a 
retrial.

Shalinda Glass pleaded guilty to a murder charge in her son's death in 2012 and 
is serving a life sentence.

(source: Gadsden Times)






INDIANA:

Judge recuses self in suspected Indiana serial killings


A man charged with strangling 2 women and suspected in the deaths of 5 other 
women whose bodies were found in abandoned homes in Gary is getting a new 
judge. Lake Superior Court Judge Diane Boswell unexpectedly recused herself 
from Darren Vann's case Wednesday and ordered the clerk's office to reassign 
the case. The (Munster) Times reports online court records didn't include an 
explanation for why she removed herself from the case.

The move comes just weeks before Vann is scheduled to stand trial Jan. 25 on 
murder charges in the deaths of 19-year-old Afrikka Hardy and 35-year-old Anith 
Jones of Merrillville. Prosecutors are seeking the death penalty against the 
44-year-old Gary man.

Vann has not been charged in the other deaths.

(source: Associated Press)






ARKANSAS:

Judge: State Must Reveal Lethal Injection Drug Information


Pulaski County Circuit Judge Wendell Griffen ruled on Thursday that Arkansas' 
death penalty drug secrecy law violates the state constitution.

A group of inmates filed a lawsuit against the state challenging the 2015 death 
penalty law and a clause that allows Arkansas to keep the drugs used in its 
lethal injection process a secret.

Wendell's ruling states that the provision making the drugs secret violates the 
state constitution and declared it null and void immediately, according to 
court documents.

He also ruled that Arkansas must provide the inmates with lethal injection drug 
information by 12 p.m. on Friday.

The state had argued it needed to keep lethal injection drug information secret 
because if drug sources were revealed, it would make it difficult to purchase 
the execution drugs.

Companies that produce drugs used in lethal injections don't want their 
products used for executions.

(source: Arkansas Matters)






MISSOURI:

Senator Keaveny Pre-files Legislation Seeking Study of the Death Penalty


Senator Joseph Keaveny, D-St. Louis, is again sponsoring legislation, Senate 
Bill 652, this year that would require the State Auditor to issue a 1-time 
report on the costs of administering the death penalty in Missouri.

This is the 6th time Sen. Keaveny has filed similar legislation examining the 
funds used in carrying out capital punishment. The Senator has a firm belief 
that the people of Missouri have a right to know how much taxpayer money is 
spent carrying out the death penalty.

"This is the harshest punishment that we as a society can administer to a 
criminal. Whether you agree with the death penalty or not, it carries high 
ethical obligations on the part of both the criminal justice system and the 
government," said Sen. Keaveny. "We need to know all the facts about the death 
penalty, including the costs associated with it. There has never been a study 
of that kind in this state - ever. Taxpayers should know exactly what it costs 
to sentence someone to death in Missouri, especially when we???re dealing with 
a budget based on limited funds."

In 2014, Missouri carried out 10 executions and in 2015 there were 6. Since 
1976, 86 people have been executed in Missouri. For more information about the 
death penalty click here orwww.deathpenaltyinfo.org/documents/FactSheet.pdf.

For more information on Sen. Keaveny's sponsored legislation for the 2016 
session, visit his official Missouri Senate website at 
www.senate.mo.gov/keaveny.

(source: Missouri Times)



ARIZONA:

Arizona court upholds death row inmate's convictions, sentences in gang-related 
killing


The Arizona Supreme Court on Thursday upheld a death row inmate's convictions 
and sentences for a killing that prosecutors said was motivated by a desire to 
become a member of the Aryan Brotherhood criminal gang.

Vincent Joseph Guarino, now 29, was convicted of 1st-degree murder and other 
crimes in the March 2010 killing of Chad Rowe, who was kidnapped from his home 
then shot 3 times, stabbed in the hand and foot and left on a street.

Maricopa County Superior Court jurors sentenced Guarino to death for his murder 
conviction after finding 4 circumstances that permitted the sentence.

Those circumstances included that the killing was intended to promote, further 
or assist the objectives of a criminal street gang or to join one.

The county attorney's office has said killing Rowe was "the price Guarino was 
required to pay in order to join the gang" and that his case apparently was the 
1st in Arizona in which jurors found the gang sentencing circumstance since the 
Legislature added it to the death-penalty sentencing law in 2005.

State Supreme Court spokeswoman Heather Murphy said Thursday that Guarino's 
case also may have been the 1st time the state high court considered a 
death-penalty case in which jurors found that particular sentencing 
circumstance.

Guarino's appeal did not challenge the jurors' finding of that sentencing 
factor and it was not addressed in the court's ruling, Justice Rebecca White 
Berch said.

Guarino's appeal did include a challenge to a widely used Arizona sentencing 
circumstance - that the finding that the killing was "especially cruel" was 
unconstitutionally vague.

However, the Arizona justices have previously upheld that sentencing 
circumstance and they did so again in Guarino's case, saying the circumstance 
is vague on its face but instructions given to jurors narrowed it sufficiently.

The court also rejected Guarino's argument that the trial judge improperly 
allowed jurors to consider sentencing evidence that unfairly made Guarino look 
bad. That evidence included a police detective's testimony that Guarino's 
brother confessed to participating in the killing and implicated Guarino.

The justices said that allowing that testimony was appropriate in the penalty 
phase of the trial because it helped jurors decide whether Guarino deserved 
leniency.

Guarino's brother, Frank, is serving a 22-year prison sentence for 2nd-degree 
murder and shorter prison terms for multiple other crimes related to the 
killing.

(source: Associated Press)






OREGON----death sentence overturned

Oregon death row inmate's sentence overturned, ordered to get new hearing


The Oregon Supreme Court has overturned the death sentence of a state prison 
inmate convicted of killing another inmate in 2008.

Issac C. Agee, 38, was sentenced to death in Marion County Circuit Court in 
June 2011 for his role in the killing of 36-year-old inmate Antonio 
Barrantes-Vasquez at the Oregon State Penitentiary. The Supreme Court upheld 
Agee's aggravated murder conviction, but ordered a new hearing to consider if 
Agee is mentally disabled, which could disqualify him for the death penalty.

Agee had been at the state prison in Salem since May 2005 serving 40 years for 
attempted murder, assault and unauthorized use of a vehicle. 3 years later, 
Agee and cellmate James Davenport entered Barrantes-Vasquez's cell with a shank 
and a large chunk of cement in a mesh laundry bag when all the doors opened 
during breakfast time. The 3 were locked inside together when the doors closed.

Agee stabbed Barrantes-Vasquez in the legs and torso 28 times while Davenport 
hit Barrantes-Vasquez in the head with the block. As prison staff waited for 
backup before opening the cell door, Davenport hit Barrantes-Vasquez about 20 
times in the head with the block and Agee kicked Barrantes-Vasquez in the ribs 
and punched him in the chest. A state medical examiner determined 
Barrantes-Vasquez died from blunt force trauma to the head.

Davenport pleaded guilty to aggravated murder in March 2010 and was sentenced 
to life in prison after it was determined that he had a mental disability.

The Supreme Court found that the Circuit Court was wrong to conclude that Agee 
failed to meet his burden of proving he had a mental disability. The ruling was 
correct when it was made, but it was based on changing standards and so should 
now be re-evaluated, the Supreme Court said.

2 expert defense witnesses - a forensic psychiatrist and an intellectual 
disability expert - should have been allowed to testify during the penalty 
phase of the case against Agee that they had diagnosed him with an intellectual 
disability, the Supreme Court said. They had been allowed to testify about 
Agee's intellectual deficits, but not about their specific diagnoses because it 
had already been determined in court that Agee wasn't mentally disabled.

The Supreme Court also found that evidence related to Davenport receiving a 
life sentence was erroneously excluded during the penalty phase for Agee's 
case.

Agee is among 35 inmates on death row in Oregon.

(source: The Oregonian)