Lawyers in Utah are increasingly reluctant to represent death-row inmates in their appeals - and a case argued Thursday before the state Supreme Court highlighted one reason.
Defense attorneys Ed Brass and Lynn Donaldson have been under attack by the Utah Attorney General's Office for what they say is simply aggressive and responsible representation of condemned killer Michael Anthony Archuleta.
But Thomas Brunker, an assistant state attorney general, says the two misstated the law and the evidence in Archuleta's post-conviction appeal, then refused to correct the misinformation. Brunker is asking the Utah Supreme Court to sanction the two lawyers.
On the surface, the stakes in the case might seem small: Brunker is asking only for a high court declaration that Donaldson and Brass violated Rule 11, which bars attorneys from pressing invalid legal claims or allegations with no evidentiary support.
But a decision that there was deception would bring the defense lawyers' integrity into question, according to Richard Mauro, who represents Donaldson. And it would worsen the problem of finding attorneys to take on the low-paying and complicated death-row appeals, he said.
Mauro and Brass, who represented himself, both told the justices that if defense attorneys fail to raise all possible claims in an appeal, the claims could be barred in later court proceedings. A defendant who might have been saved could be executed in that scenario, Brass said.
"That's our nightmare," Brass said.
He added that 4th District Judge Donald Eyre, who handled Archuleta's post-conviction appeal, found there was no unethical behavior by himself or Donaldson.
The attorney general's office subsequently appealed Eyre's ruling.
Brass also pointed out to the high court justices that they had severely criticized him for failing to do enough in the appeal of another death-row inmate, Ralph Leroy Menzies.
In the Menzies case, the court ruled that Brass' representation was "deplorable" and they reinstated the killer's appeal in 2006. Afterward, numerous attorneys, most citing the low pay, declined to take the case. Earlier this year, Mauro was appointed against his will to represent Menzies. He has since requested to withdraw from the case.
Outside court on Thursday, Mauro contended the sanctions request "is a personal attack against the lawyers who are doing this kind of work."
Brunker denies any personal animosity. He said he just wants to curb "abusive litigation." Lawyers are filing lengthy briefs in death-penalty appeals that are often filled with claims already rejected in previous court rulings, he said.
