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SCOTUS Stays Execution of Mo. Inmate Abandoned by Counsel

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By William Peacock, Esq. on October 29, 2014 1:36 PM

Convicted murderer Mark Christeson got the rarest of reprieves: a Supreme Court stay blocking his execution (for now). With an execution set for midnight (Wednesday morning), he was spared with just a few hours to go over the dissent of Justices Scalia, Thomas, and Alito.

Why the reprieve? The order didn't elaborate on the reason for the stay, but we covered his case yesterday on our Eighth Circuit blog: Christeson never received federal habeas review because his court-appointed counsel didn't even meet with him until after the deadline, then filed a late petition, and then spent the next seven years avoiding their own malpractice by continuing to represent him, pressing frivolous timeliness arguments on appeal.

The dubious duo still represent him, in fact -- though outside counsel, as well as a group of former judges, all submitted briefs to the Supreme Court asking for a stay while the issues of a denied substitution of counsel, the conflict of interest with his current counsel, and his denied habeas review are all sorted out.

Conflict With Counsel

In 2004, Christeson was appointed two attorneys -- Eric Butts and Phil Horwitz -- for his federal habeas appeal. They first met with him a month after the filing deadline in April 2005, then filed his petition 117 days late. Since then, they've refused to concede malpractice, insisted on appeal that the filing was timely, and refused to share their files with two pro bono attorneys who have tried to take over the case: Jennifer Merrigan and Joseph Perkovich.

The district court was also unfriendly to Merrigan and Perkovich, repeatedly refusing to allow the substitution of counsel until the Supreme Court forced it to, then dismissing the motion for substitution as untimely, without addressing the conflict of interest issue.

That alone might be why the Supreme Court issued the stay: As of now, Christeson is represented by the two guys who botched his initial appeal. His best shot at getting federal review, years after the fact, is arguing for equitable tolling due to the botched appeal, but that, of course would require these two guys to admit that they screwed up.

And "screwed up" might be putting it mildly: Merrigan, in her cert. petition on Christeson's behalf, said that they "actively concealed their conflict from him over the course of years," revealed "attorney-client privileged communications in an attempt to defend their own interests," and before all that, "filed a woefully late and inadequate petition (having retained no experts, undertaken no investigation, and filed no appendix or exhibits), and then spent the next seven years lying to their client about the status of his appeals."

The former judges' amicus criticizes the lower courts' rulings in harsh terms, stating: "Here, the lower courts set the terrible precedent that the federal courts can reject a capital inmate's request for relief without considering the core of his argument, or even ensuring that his attorneys are capable of representing his interests. The rush to execute petitioner privileges finality above fairness, and this Court's review is necessary to restore balance to the administration of the death penalty."

What Ifs

Though the petition prepared by Butts and Horowitz has been criticized both for timeliness and substance, it did have some interesting mitigation evidence that was never presented at trial: his father's schizophrenia, his mother's mental disabilities, his severe learning disabilities, and the sexual abuse he suffered.

To sum it all up: Both of Christeson's parents had severe mental issues, and he was abandoned at a young age by his mother, who told him that he was the son of her brother-in-law. He was allegedly beaten and burned by his mother and sexually abused by her and her male companions. He also has a history of poor academic performance, especially on standardized tests -- in eighth grade, his reading score percentile rank was in the bottom 2 percent, and his math was in the bottom 3 percent.

None of this was presented at trial. And none of it was presented for purposes of habeas relief because his counsel missed the deadline. And maybe, it would have kept him off death row.

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