Journal of Law and Policy


Lyle C. May


In 2018, death row prisoner Scott Allen was ordered to undergo a psychiatric evaluation to determine whether he was competent enough to fire his appointed attorneys. The competency hearing was not ordered by Scott’s counsel; rather, a superior court judge did so at the behest of an undisclosed third party. The problem was that Scott Allen had no history or symptoms of an intellectual disability or mental illness, nor was either a mitigatory claim in his appeal. The attorney-client conflict was triggered by Scott’s pro se effort to remove counsel after they ignored his lawful instructions to include potentially exculpatory evidence in an appellate brief. Exclusion of such information in the brief at the state level would find it procedurally barred in a federal habeas petition. This danger was reinforced by the U.S. Supreme Court’s conservative majority ruling in Shinn v. Ramirez. The Court held that defendants bear responsibility for all attorney errors and cannot depend on federal courts to be fact finders when new evidence that should have been presented in state courts is raised in a habeas petition. This procedural bar prevents raising a claim of ineffective assistance of post-conviction counsel, creating a circumstance where defendants must be a check against less than diligent attorneys. When capital defendants pursue due process in the course of their appeals, they often contend with attorneys who are only interested in their own agendas and defense strategies, interference from third parties that support defense counsel but not necessarily the interests of the defendant, federal courts hamstrung by Supreme Court rulings, and the “otherism” taught to attorneys in the 2003 American Bar Association ethical guidelines. Through this quagmire, capital defendants gamble life and freedom on the ability of their attorneys to avoid errors and pursue client interests. It is through this legal nightmare those who seek to overturn wrongful convictions must fight the status quo of delay.