Monday, April 11, 2011

High Court Considers Bad Lawyering Cases

Daniel Cook was scheduled to die by lethal execution last Tuesday morning in the Arizona Correctional Facility at Florence for murdering two men in 1987. Cleve Foster was scheduled for execution that same evening in the Texas State Penitentiary at Huntsville for a 2004 murder. The U.S. Supreme Court stayed the executions of both men, according to the Arizona Republic.

The issue in both cases was ineffective assistance of counsel. Did they have bad lawyers? Were their Sixth Amendment right to a fair trial infringed upon?

Cook represented himself at trial and failed to bring up serious issues from his childhood that might have influenced his sentence. Cook's case brings to mind the quote from Abraham Lincoln, "The man who represents himself has a fool for a client." However, Foster had a trained attorney and at trial he failed to engage an expert who might have tipped a jury toward acquittal. Then, the lawyers who handled their appeals failed to present those claims adequately.

The U.S. Supreme Court has not decided whether it will hear the cases. Neither offender is a particularly sympathetic figure. According to the Republic, Foster and another man were convicted of murdering a woman in 2002. She was found with a bullet in her head, and an autopsy showed both men had sex with her. The other man confessed four times to being the sole murderer, but prosecutors argued that she was shot elsewhere and dumped where her body was found. They did not believe the confessor was strong enough to move her body by himself, and so Foster must have helped.

Appellate lawyers argued that a "blood spatter" expert should have been hired during trial to show she had been shot where she was found. But it was not brought up in post-conviction, either. In 2010, such an expert volunteered to do the analysis for free, but the new evidence could not be admitted. The Supreme Court declined to accept the case in January, but stayed Foster's execution Tuesday pending a decision on whether to reconsider.

According to the Republic, Cook and a roommate tortured, sodomized and killed two men in Lake Havasu City in 1987. Cook decided to defend himself, and during the sentencing stage of his trial, he failed to describe extensive sexual and emotional abuse he had suffered as a child and teen. His post-conviction counsel failed to raise the issue. In February, the Supreme Court refused to take the case, but issued a stay of execution Monday, pending a decision whether to hear it.

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