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Hammond: Ariz. case to test rights of convicted in Supreme Court by Larry A Hammond - Oct. 4, 2011 12:00 AM My Turn Today, the U.S. Supreme Court will open its chamber to a man named Luis Martinez. Chosen from among the thousands of cases presented each year to the court, this one will raise one of the most important constitutional questions addressed this term. Does the Constitution guarantee that a person convicted of a serious crime will have counsel to assist him in determining whether his conviction was the result of an incompetent, ineffective trial counsel? The Martinez case against the state of Arizona is a good place to ask this question. Accused of sexual misconduct with his stepdaughter, he denied the child's accusation. There was no physical evidence; in fact, the child later recanted the accusation. The case went to trial anyway. The state - without objection from Martinez's lawyer - introduced "expert testimony" that child-victim recantations often are unreliable and, therefore, can be discounted by the jury. The defense did nothing to challenge this testimony. Although Martinez denied the charges, in 2002, he was convicted and sentenced to two consecutive 35-year terms - 70 years. Pinal County appointed a lawyer to represent him on appeal, but she chose not to inquire whether the trial lawyer had failed to provide competent representation. Without investigation, without communicating with her client, without contacting trial counsel or reviewing the file, she simply notified the court that she could find no issues worthy of examination. Afterward, she sent a letter to Martinez advising him he had 45 days to proceed on his own. Martinez does not read English and had no understanding of Arizona's appellate procedures. When he failed to file his own petition, the Arizona court concluded that all issues regarding trial lawyer competency were forever "precluded." Federal action also was barred. Martinez sits in prison. The Arizona Justice Project - this state's innocence and manifest injustice project - began working on his case in 2004. The lack of competent counsel in the "post-conviction" world is the central reason why projects like ours have come into existence. In case after case, ours and other projects around the country have been barred from meaningful access to the courts. Why? Because an appellate lawyer has already effectively waived all issues relating to the performance of the defense at trial. Courts have not recognized the critical importance of a competent lawyer at this first and only opportunity to evaluate whether the accused had proper representation at trial. Where DNA exonerates - as it has in now over 270 cases - the incompetence may have occasioned delay, but at least justice was done in the end. What of the cases where a manifest injustice occurred but, due to the lack of reasonable effort by the appointed lawyer, the courthouse doors are locked tight? Were it not for the project and for the extraordinary devotion of time and energy by people like Arizona State University law professor Robert Bartels, who is presenting the case today before the Supreme Court, this matter would never have found its way to the October term. There is every reason to hope that this Supreme Court will hold that Martinez is entitled to have a competent lawyer to help with his appeal. In two years, we will mark the 50th anniversary of the landmark U.S. Supreme Court ruling establishing the right of the criminally accused to a lawyer at public expense. Gideon vs. Wainwright, Justice Hugo Black's most cherished opinion, cemented the fundamental right of anyone accused of a crime to the services of a trained, competent lawyer. Aided by counsel, Martinez may celebrate as a free man the 50th anniversary of Justice Black's Gideon opinion. Larry A Hammond was the last law clerk for the Honorable Hugo L. Black. Hammond is also a founding partner of Phoenix law firm Osborn Maledon and serves as the chair of the Arizona Justice Project. |