Former Judges Tell 8th Circuit Effective Counsel for Death Row Inmate Requires Funding

For the second time in two years, a group of former state supreme court justices and former federal appellate and trial court judges are urging the Eighth Circuit Court of Appeals in St. Louis to overturn the denial of the right to counsel to a Missouri death row prisoner.

In a friend-of-the-court brief filed on August 21, the judges urge the appellate court to reverse the funding denial of a federal district court in Kansas City that has resulted in depriving Mark Christeson of the meaningful assistance of counsel and has continued to foreclose the reopening of his case so that he may receive, for the first time, a federal review of constitutional violations.

The former judges’ brief expresses great concern about the “nakedly partisan” quality of the district court’s ruling, which is described as seeming “less like a judicial opinion and more like a prosecutor’s brief.”  The brief was organized by TCP with generous pro bono assistance from Goldstein & Russell, P.C.

Christeson, who suffers from severe cognitive impairment, was sentenced to death for three murders committed in south-central Missouri in 1998.  His sentence has never received federal review because of the failures of earlier appointed counsel.

In January 2015, the U.S. Supreme Court, by a vote of 7-to-2, ruled that Christeson should get a chance to argue that his initial court-appointed attorneys had effectively abandoned him by missing a crucial 2005 deadline to appeal his conviction in federal court, and then, over the course of the subsequent years, deceiving him to believe the case remained in the courts.  The ruling returned the case to the lower courts for review and ordered that Christeson be given new counsel.

In response, the district court appointed new pro bono attorneys for Christeson, but then refused to provide adequate funding to enable them to develop and present crucial medical and mental health expert evidence to show their client was unable to assert his own rights when his prior lawyers abandoned him.  Christeson’s lawyers submitted a representation budget with expenses of $161,000, but the court granted them only $10,000.  As a result, the judges’ brief asserts, Christeson’s rights have continued to be denied and the justice system subverted.  “When attorneys lack adequate funds to investigate and prepare submissions in a capital habeas case, the adversarial process cannot perform its essential function of revealing the truth,” the brief claims.

“The issue here is not whether attorneys should be able to earn the same amount by serving indigent clients as they could by serving wealthy white collar defendants,” the former judges argue. “It is instead whether attorneys facing the overwhelming resources of the government can marshal the resources necessary to advocate effectively for their clients. And it is whether the funding decisions that district courts make in capital habeas cases reflect the complexity of the issues presented and the magnitude of our society’s interest in ensuring that nobody is executed who does not deserve to be.”

As the judges’ brief points out, “judges must act as impartial arbiters, applying the facts to the law in a manner that gives the parties and society confidence that justice has been done.” However, the district court’s order in this case shakes this confidence and requires reversal, the judges argue.

The case is Christeson v. Roper (No. 16-2730).  Many of the same judges endorsing the current brief, including former Chief Justice of the Missouri Supreme Court Michael Wolff, earlier presented their views in Christeson’s case to the Eighth Circuit and to the United States Supreme Court.


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