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Wednesday, November 7, 2012

Death Row inmate's legal representation battle in court

Posted By on Wed, Nov 7, 2012 at 7:12 PM

Mara Leveritt reports on a hearing today in federal court on Death Row inmate Timothy Howard's effort to change legal representation from the federal public defender's office.

At an unusual hearing in federal court on Wednesday, an Arkansas death-row inmate and his three court-appointed public defenders told U.S. District Judge Brian S. Miller that their attorney-client relationship was broken beyond repair.

Inmate Timothy Lamont Howard testified that he had hoped that his federal public defenders would allow him to include a private attorney in his team, as his case may be headed back to state court, where his federal public defenders will not be able to represent him. “But they wouldn’t have it,” he said.


(UPDATE: The jump portion now contains more information that I inadvertently failed to post last night.)

PATRICK BENCA: Ready to serve Death Row inmate.
Howard said his federal public defenders went to court without consulting him to oppose his request to allow Little Rock attorney Patrick Benca to have full access to his files, in preparation for a possible new state trial. Miller ruled on Sept. 19 that Benca could not join Howard’s defense, but two weeks later, the public defenders, who seemed to have won what they wanted, filed a motion asking to withdraw from Howard’s case.

Miller called Wednesday's hearing in an attempt to sort out the mess. “I just want to get to the bottom of this,” he said as it began.

Turning to Jenniffer Horan, who heads the Federal Public Defender’s Office, Miller said, “I know you have ethics charges filed against you and I know you don’t want to do a lot of talking.” Nevertheless, he said, he had to ask why she and attorneys Scott W. Braden and Josh Lee of her staff, were taking such an unusual step.

Horan responded that her office “cannot go forward with Mr. Howard” due to “actual and irreversible conflicts” that have arisen in the past 12 weeks. She did not specify at today’s hearing what those conflicts were.

Horan had, however, put forth one apparent reason in a report that she, Braden and Lee submitted to the court on Oct. 29. In that, the three federal public defenders wrote that they wanted to withdraw “because of an actual conflict in further representing Mr. Howard who has—through private counsel—filed an ethics complaint against them with the Arkansas Supreme Court Committee on Professional Conduct.”

In an interview after Wednesday’s hearing, Howard denied that he had filed an ethics complaint against any of his attorneys. He also said he had not asked anyone to file a complaint on his behalf.

The day before the hearing, Horan, Braden and Lee filed a memorandum with the court that again noted that, “there now exists an actual and irreconcilable conflict” which precludes them from representing Howard. Attached as an exhibit to that memorandum was a letter to Horan from Howard W. Brill, a professor of legal ethics and professional responsibility at the University of Arkansas at Fayetteville.

Brill wrote that he had reviewed several documents concerning the federal public defenders’ motion to withdraw from Howard’s case. Four of the six items he cited were letters concerning Benca’s proposed appearance in Howard’s case.

The fifth was: “The disciplinary charges filed against you and your staff by Patrick Benca, with the Committee on Professional Conduct.” The final item was: “The article entitled ‘Tug of War’ written by Mara Leveritt on September 30, 2012.”

“In my opinion,” Brill told Horan, “an actual conflict between your office and Mr. Howard now exists so that withdrawal is appropriate.” Benca declined to comment on the “disciplinary charges” Brill claimed that he had filed.

In court on Wednesday, Horan told Miller that the situation she and her staff faced was “unprecedented” in her experience. The judge replied: “I’ll be honest with you, Ms. Horan. I don’t like the fact that the federal public defenders are getting off this case.”

Miller questioned Benca at Wednesday’s hearing about why he had contacted Howard in the first place. “When I was in practice,” the judge said, “I didn’t talk to other people’s clients.”

Benca said that he was “in a little bit of a quandary” when Howard wrote to him because of information
presented in Howard’s letter. Ultimately, Benca testified, he felt the information made it “imperative” that he visit Howard in prison “to hear what he had to say.”

After that meeting, Benca said he told Howard that he would represent him for free in any state proceedings that may be ordered. In response to a question from the judge, Benca said that he would represent Howard without charge in all future proceedings if appointed by the court, though he would need for the court to appoint an additional attorney and an investigator.

Miller noted that he had initially believed that Benca had violated one of the state supreme court’s Rules of Professional Conduct by taking that action without first notifying Howard’s appointed attorneys. However, Miller said, that after reviewing the court’s rules, he realized that his memory of them was mistaken, and that Benca’s visit to Howard was not a violation.

Howard sat through the proceeding surrounded by the attorneys who have petitioned to withdraw from his case. Addressing the inmate, Miller said, “Mr. Howard, ultimately you are going to be the one who has to speak on this.” Howard crossed the courtroom to the witness stand wearing a white prison jumpsuit and shackles.

He said his federal public defenders had “done good work,” but that, “Somehow, they don’t figure I have a say in my case.” He said they made decisions without his approval and did not keep him informed. “I did not even hear about this hearing from them,” he said.

Miller warned Howard that if he let the federal public defenders withdraw, all the office’s resources would no longer be available to him. Howard said that he understood, but he asked in turn: “What good do all those resources do me if the people who are supposed to represent me don’t listen to what I say? I’m the one sitting in prison, on death row.”

Miller observed that the federal public defenders and Howard agreed that their relationship could not be repaired, and that Benca stood ready to represent Howard. After all the testimony was heard, the judge said that letting the federal public defenders withdraw seemed to be “what everybody wants except me.”

Miller said he would decide the question of Howard’s representation within the next couple of days.

As it happens, on Monday, the Arkansas Supreme Court ordered the circuit court in Little River County, where Howard was convicted, to proceed with a hearing to decide whether he is to have a new trial.

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