Death-Row Inmate Can Fight Sentencing Counsel

     PHOENIX (CN) – The U.S. Supreme Court refused to vacate a stay of execution that the 9th Circuit granted a convicted murderer who says he was abused as a child.
     Edward Schad, 70, was first convicted for the 1978 murder of 74-year-old Lorimer “Leroy” Grove of Bisbee, Ariz., in 1979. Sentenced to death, Schad won a retrial and was convicted again and sentenced to death again in 1985.
     The evidence showed that Schad had strangled Grove and stole his car, credit cards, and jewelry. At the time, Schad had been on parole after serving 9 1/2 years for his role in the strangulation of Clare Odell Mortensen in Utah.
     Schad has awaiting lethal injection ever since but saw a chance at reprieve when the U.S. Supreme Court gave a different Arizona inmate, Luis Mariano Martinez, a chance to belatedly argue ineffective counsel while serving life for sexual conduct with a child.
     Last week, in an unpublished decision, a divided three-judge panel of the 9th Circuit concluded that Martinez gives Schad room to claim for the first time that his sentencing counsel had been ineffective in failing to present evidence of his “mental illness” as an adult.
     “The evidence Schad would have presented in mitigation, had it not been for sentencing counsel’s and post-conviction counsel’s errors, would have demonstrated that Schad was suffering from “several major mental disorders” at the time of the crime, specifically extremely serious mental conditions such as bipolar disorder, schizoaffective disorder, and dissociative disorders, among others,” the majority had said.
     Schad also claims that his counsel “failed to investigate and present additional evidence regarding his tragic history of child abuse,” the ruling continued.
     The majority remanded the case on Feb. 26 for a Phoenix federal judge to determine whether post-conviction counsel was ineffective.
     Three days later, the same panel, still divided, granted a stay of Schad’s imminent execution.
     The full court refused to rehear the panel’s orders en banc, prompting two dissents from eight judges.
     “The majority’s stay of execution and remand order in Schad openly defies the Supreme Court’s directive in this very case and takes our habeas jurisprudence down a road that has already been rejected,” according to the first dissent written by Judge Richard Tallman on behalf of seven others.
     Under Cullen v. Pinholster, Schad should be banned from introducing new mitigating evidence in federal court for a claim he had previously exhausted before the Arizona courts, that dissent states.
     Schad’s claim has not changed from what he presented to the Arizona courts, “and merely improving the evidentiary support does not provide a basis for a federal court to overturn a state court’s reasoned opinion,” Tallman wrote.
     “The majority’s order perversely incentivizes prisoners and their counsel to locate additional, even cumulative, evidence during federal habeas proceedings,” he added. “Applying the majority’s logic, this evidence may then be found to have fundamentally altered and transformed claims that were adjudicated during state post-conviction relief proceedings into new claims not bound by Pinholster or the state court record.”
     Judge Consuelo Callahan, who joined in Tallman’s opinion, also wrote her own dissent on behalf of five others who joined with Tallman.
     She said the stay has given Schad another six years to live based on an unsound reasoning of meritless ineffective counsel claims.
     “The sole point of this exercise was to buy Schad more time – the very thing he took from Lorimer Grove and Clare Odell Mortensen,” Callahan wrote. Victims have rights, too. The panel majority’s decision here cavalierly disregards those rights in favor of a twice-convicted murderer who has already had the benefit of 33 years of legal process.”
     Arizona failed Tuesday to have the U.S. Supreme Court intervene. Justice Antonin Scalia, who warned in March 2012 that the majority in Martinez v. Ryan had created “a monstrosity,” joined Justice Samuel Alito in saying they would have vacated the 9th Circuit’s stay. Scalia had said Martinez marked “a radical alteration of our habeas jurispru­dence that will impose considerable economic costs on the states and further impair their ability to provide justice in a timely fashion.”

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