You Want Your Lawyer To Be Competent?

Consider, if you will, this guy.

His name is Luis Mariano Martinez, and he's serving consecutive prison terms of 35 years to life in Arizona after he was convicted by a jury of twice having sex with his stepdaughter Lacey.  Although Lacey had previously made statements indicating that Martinez did have sex with her, she had recanted those statements before the trial and denied to the jury that he had sex with her.  The DNA was inconclusive.  The jury found him guilty.

There was much his trial attorney could and should have done but did not.  So deficient was his representation, Martinez says, and so prejudicial was the deficiency, that Martinez was denied his constitutional right to effective assistance of counsel.  Arizona has a mechanism for hearing claims like that.  They must be raised in a post-conviction petition, and notice that there will be such a petition must be filed no more than 30 days after the direct appeal is completed.  The lawyer who represented  Martinez on direct appeal filed the notice way early, got the court to give Martinez 45 days to file his actual petition without the assistance of a lawyer, and then didn't tell Martinez what she had done or what he had to do.  So he didn't file a petition and the court dismissed the post-conviction.

Except, of course, that there was that pesky issue of the violation of Martinez's right to effective assistance of trial counsel.  He got himself a new lawyer and filed a petition within the 30 days after the court of appeals decision.  But it was a second petition, and Arizona says that he needed to raise his claim in the first filing - the one that didn't go anywhere because his lawyer didn't bother to tell him that she had, for no good reason, carefully reduced his time to file something.

Arizona dismissed the petition.  And the federal courts said that if he didn't raise the claim properly under Arizona law, he couldn't pursue it in federal court.

But wait, said Martinez.

I have a right to effective assistance of appellate counsel - including a right to complain about the competence of trial counsel.  My appellate lawyer's incompetence screwed up my post-conviction which was my first chance to complain about my trial lawyer's incompetence.  Come on guys.  Gimme a break.

But see, here's the sticky part.  The Supreme Court said, years ago, that while a criminal defendant has a right under the 6th Amendment to effective assistance of counsel at trial.  And the Supreme Court said that a criminal defendant has a right under the 6th Amendment to effective assistance of counsel at a first round appeal.  And the Supreme Court said the 6th Amendment doesn't do more than that. 

Post-conviction isn't first round appeal. So the fact that his lawyer's incompetence in the first post-conviction deprived him of the chance to complain about trial lawyer's incompetence?  Hey, life's tough.  Get over it.  

Tuesday, the Supreme Court agreed to hear Martinez's appeal.  The case is Martinez v. Ryan and it could make a big difference.

Martinez isn't arguing that everyone has a right to effective assistance of counsel in post-conviction.  It's cruel and unjustifiable that the law doesn't say that, but the Supremes aren't going to revisit that question.  What they might do, though, and what he's arguing that they should do, is carve out an exception when post-conviction is the first time that ineffective assistance of trial counsel can be raised.  That's not just an Arizona problem.

Take Ohio.

Please.

Sorry.

But seriously, take Ohio.

Our post-conviction process is limited and cramped.  But that's the least of it.  For the most of it, we have to look at how it treats people under sentence of death.  

They alone have a statutory right to appointed counsel to help them with their petition.  Folks with any other sentence either have to find a lawyer willing to take on the case or to find someone they can hire. 

But even more, people under sentence of death are to be appointed lawyers who are specially certified by the Supreme Court of Ohio (note that I'm using the formal name here) as competent to accept appointments in post-trial death penalty cases.

Which all sounds pretty good.  Until you read this in the statute.

The ineffectiveness or incompetence of counsel during proceedings under this section does not constitute grounds for relief in a proceeding under this section, in an appeal of any action under this section, or in an application to reopen a direct appeal.

The judge chooses the lawyer from a list of those specially certified.  But the lawyer fucks up?  if the lawyer is incompetent? Gee, that's too bad.  We never promised you a rose garden.

That's what Martinez could undo.  And that's no small thing.

You'll be shocked to learn that the answer is likely to depend on how Justice Kennedy is feeling.