Wednesday, November 7, 2012
Law Death Row inmate's legal representation battle in court
Posted by Max Brantley on Wed, Nov 7, 2012 at 7:12 PM
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.
CONTINUED ON THE JUMP
(UPDATE: The jump portion now contains more information that I inadvertently failed to post last night.)
- Brian Chilson
- PATRICK BENCA: Ready to serve Death Row inmate.
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.
Comments (8)
Showing 1-8 of 8
More by Max Brantley
-
NBA player Jason Collins comes out
The decision by NBA journeyman Jason Collins to announce he is gay is making headlines all over today.
- Apr 29, 2013
-
More news: Pryor and the NRA
Still more stuff to roundup this morning; * MARK PRYOR'S ALLIANCE WITH THE NRA: I've noted before Sen. Mark Pryor's alliance with the NRA on legislation supposedly aimed at reducing gun purchases by the mentally ill. The NRA favor reduced gun purchases?
- Apr 5, 2013
- More »
Readers also liked…
-
'Paradise Lost 3: Purgatory' to screen during Arkansas Literary Festival
If you haven't yet caught "Paradise Lost 3: Purgatory," you can catch the documentary at Argenta Community Theatre during the Arkansas Literary Festival.
- Feb 23, 2012
-
Jason Baldwin, Hollywood producer
Jason Baldwin and his girlfriend, Holly Ballard, are executive producers for "Devil's Knot," the movie about the West Memphis Three case to star Colin Firth and Reese Witherspoon.
- Mar 5, 2012
-
Another day in court for Death Row's Tim Howard
The 1998 capital case against Tim Howard from Little River County has long drawn on our attention in reporting by Mara Leveritt, most recently in her account of huge problems with DNA tests conducted for the case (and covered up by the state).
- Mar 13, 2012
People who saved…
Event Calendar
-
Re: Open line
No Obamaphone? But I saw it on Fox!
- on June 18, 2013
-
Re: Open line
Before you fall for the "phone expose'," read the FactCheck.org skewering of…
- on June 18, 2013
-
Re: Open line
"There is no Obamaphone… the phone in question is part of the Lifeline program, dating…
- on June 18, 2013
Top Commenters
Blogroll
Site Index
News
Cover Story / Arkansas Reporter / The Week That Was / Smart Talk / The Insider / The Observer / Editorial / Max Brantley / Ernest Dumas / Gene Lyons / Bob Lancaster / Words / Guest Writer / Letters
Entertainment
A&E Feature / To-Do List / In Brief / Movie Reviews / Music Reviews / Theater Reviews / A&E News / Art Notes / Graham Gordy / Books / Media / Dining Reviews / Dining Guide / What's Cookin' / Calendar / The Televisionist / Movie Listings / Gallery Listings
This Week's Cover
Quick Links
Special Publications
RSS
Facebook
Twitter
