Another Upheaval in Arizona Murder Case

(CN) - The full 9th Circuit ordered a new hearing for a man on death row who claims that he was pinned for a murder because of ineffective assistance from counsel.

Prosecutors had shown that David Scott Detrich and his co-worker, Alan Charlton, picked up Elizabeth Souter after a night of drinking heavily in Tucson, Ariz., on Nov. 4, 1989. They bought drugs from a bar and went back to Souter's house, but Detrich threatened Souter with a small knife because the drugs were bad.

The three left Souter's house together, and her body was found two days later with a slit throat and about 40 cut and stab wounds.

Charlton pleaded guilty to kidnapping for a 10.5-year sentence, and testified against Detrich. He claimed at trial that he merely sat behind the wheel while Detrich forced Souter into a car by knifepoint, raped her, slit her throat, and dumped her body in the desert.

Detrich's first trial ended in a mistrial, and a defective jury instruction led the Arizona Supreme Court to reverse the conviction that resulted from a second trial. The court refused to disturb the next convictions for kidnapping and murder handed down by a third jury in 1997.

In a petition for postconviction relief, however, Detrich claimed that counsel at his third trial had been ineffective for many reasons, including failing to present live testimony from an exculpatory witness.

Phillip Shell had testified in one of the earlier trials that Charlton confessed to him in jail that he had stabbed Souter. Rather than call Shell again at the third trial, Detrich's attorney had presented the recorded testimony.

Shell said Charlton had become enraged at seeing Detrich kiss Souter because she was black. Unlike most jailhouse snitches, Shell testified against the interest of the prosecution and received no benefit from doing so.

Supporting Shell's testimony, the woman who was divorcing Charlton at the time testified about his prejudice against black people.

A Pima County judge found that the ineffective assistance claims failed to carry water, and Detrich then sought habeas relief in a petition that raised some new ineffective assistance of counsel claims for the first time.

Before the federal judge ruled, Detrich raised those new claims in a second petition with the state court. Both the state and federal courts then found the claims barred, but a three-judge panel of the 9th Circuit reversed and vacated Detrich's death sentence in 2010.

The Supreme Court directed the panel to reconsider in light of its finding in Cullen v. Pinholster that defendants should be banned from introducing new mitigating evidence in federal court for a claim previously exhausted before a state court.

Unmoved, the appellate panel nevertheless again vacated Detrich's death sentence on remand.

In the meantime, the Supreme Court decided another case about ineffective assistance, Martinez v. Ryan.

This ruling found that substantial ineffective assistance of counsel, such as that which Detrich described, could establish cause for the default of a claim of ineffective assistance of trial counsel.

Detrich moved for remand to the District Court under Martinez, and the 9th Circuit convened an en ban hearing on the issue.

The court ruled 6-5 Tuesday that the appeal should indeed be remanded.

"We need look no further than the jury verdict to get a general sense of the strength of the evidence," according to the plurality opinion by Judge William Fletcher. "Three out of the 12 jurors refused to convict Detrich of premeditated murder. They were willing to convict Detrich of only felony murder."

Fletcher said Detrich's claims are "sufficiently plausible to warrant remanding to the district court."

The testimony of two witnesses "would have suggested that other witnesses were not testifying truthfully" after one claimed police instructed her to lie, and another claimed Charlton had ties to the Aryan Brotherhood, which would have "strengthened the evidence of Charlton's motive for the killing," according to the ruling.

Fletcher also noted that certain pieces of evidence - Souter's fingernail, Charlton's fingerprints, blood on the driver's side of the car, and a lack of semen - "were consistent with Charlton having killed Souter."

Charlton admitted to driving the car, suffered scratches from Souter, and claimed to have watched Detrich "raping" Souter, the judges noted.

The failure by Detrich's counsel to cross-examine a witness also failed to undermine testimony from a co-worker that Detrich had told him that he killed Souter by slitting her throat with a knife.

In fact that witness had said in a pretrial interview that Detrich "didn't say that he killed the girl."

Judge Susan Graber, on behalf of four other dissenting colleagues, said Detrich's "counsel effectively presented to the judge and jury much of the evidence that the majority cites in support of the view that petitioner's co-defendant may have been the killer."

The evidence against Detrich "was powerful," and the "jury's verdict and the sentencing court's determinations appear to reflect their reasonable assessments of the evidence at trial, not any ineffectiveness on the part of counsel," Graber wrote.

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