New Counsel for Death-|Row Inmate, Justices Say

WASHINGTON (CN) - Attorney substitution for a convicted killer was in order after his appointed counsel missed a critical deadline, the Supreme Court ruled Tuesday.

Mark Christeson was initially scheduled for execution on Oct. 29, 2014, but the Supreme Court had granted him a last-minute stay while it looked into the case.

Tuesday's summary reversal notes that Christeson, who has been on death row since his 1999 conviction in Missouri for three counts of capital murder, "appears to have severe cognitive disabilities that lead him to rely entirely on his attorneys."

Phil Horwitz and Eric Butts were appointed in mid-2004 to represent Christeson in his petition federal habeas relief, the deadline of which, under the Antiterrorism and Effective Death Penalty Act (AEDPA), was April 10, 2005, according to the ruling.

Horwitz and Butts have since acknowledged, however, that they did not "meet with Christeson until more than six weeks after his petition was due," the Tuesday opinion states (emphasis in original).

When the attorneys finally filed Christeson's petition in August, 117 days late, the District Court dismissed the petition as untimely, and the 8th Circuit rejected Christeson's appeal.

Christeson's only shot at relief emerged when Horwitz and Butts contacted two other attorneys, Jennifer Merrigan and Joseph Perkovich, nearly seven years later.

Horwitz and Butts learned that they could move to reopen final judgment under Federal Rule of Civil Procedure 60(b), on the ground that AEDPA's statute of limitations should have been equitably tolled, but "any argument for equitable tolling would be premised on their own malfeasance in failing to file timely the habeas petition," according to the ruling.

Merrigan and Perkovich moved to substitute themselves as Christeson's counsel once Horwitz and Butts froze them out, but the District Court refused.

These new attorneys were located in New York and Pennsylvania, and the District Court found that such distant representation was "not in [Christeson's] best interest," according to the ruling.

Though Merrigan and Perkovich had offered to forgo all fees and expenses associated with travel to Missouri, the court ignored this element and did not address whether other attorneys for Christeson could be appointed.

Based on the apparent reasoning that Merrigan and Perkovich were not authorized to file an appeal on Christeson's behalf, the 8th Circuit dismissed for lack of jurisdiction.

The Missouri Supreme Court issued a warrant for Christeson's execution in 2014 while this appeal was still pending before the Eighth Circuit.

When the District Court shot down another bid by Merrigan and Perkovich for substitution, it noted "that Horwitz and Butts had not "abandoned" Christeson, as they had recently appeared on his behalf in a class-action lawsuit challenging Missouri's lethal injection protocol," according to the ruling.

The 8th Circuit summarily affirmed, but the Supreme Court found Tuesday that these rulings "contravened our decision in Martel v. Clair ."

The court's principal error was its failure to acknowledge Horwitz and Butts' conflict of interest," the unsigned summary reversal states. "Tolling based on counsel's failure to satisfy AEDPA's statute of limitations is available only for 'serious instances of attorney misconduct.' Advancing such a claim would have required Horwitz and Butts to denigrate their own performance. Counsel cannot reasonably be expected to make such an argument, which threatens their professional reputation and livelihood."

Horwitz and Butts had even "characterized the potential arguments in favor of equitable tolling as 'ludicrous,'" the ruling continues, claiming that they had "a legal basis and rationale for the [erroneous] calculation of the filing date."

The Supreme Court said "Horwitz and Butts' contentions here were directly and concededly contrary to their client's interest, and manifestly served their own professional and reputational interests."

As to their failure to meet with Christeson and timely file his habeas petition, Horwitz and Butts have told the courts that they simply miscalculated "the AEDPA limitations period (and in defending themselves, they may have disclosed privileged

client communications)," according to the ruling.

"But a legal ethics expert, reviewing counsel's handling of Christeson's habeas petition, stated in a report submitted to the District Court: "[I]f this was not abandonment, I am not sure what would be," the opinion continues.

Justice Clarence Thomas joined a dissent by Justice Samuel Alito, which says the court should have conducted briefing and oral argument before reversing.

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