Post by porky2017 on Apr 4, 2008 6:42:03 GMT -5
Judge allows attorney to withdraw from death penalty case
Jeremy Duda - DAILY HERALD
A judge ruled that attorney Mark Moffat can withdraw as counsel for a death-row inmate who is appealing his sentence, but Moffat's co-counsel, an attorney in Boise, will have to stay on the case.
Fourth District Judge Lynn Davis issued his ruling on Tuesday, writing in his decision that Moffat's insistence that he was not qualified to represent Douglas Stewart Carter may have negatively affected the attorney-client relationship. But Davis rejected the arguments of attorney Leo Griffard, Moffat's co-counsel, who Moffat said was qualified to handle the case but was unable to devote much time to it due to the demands of his practice in Idaho.
"The court has not found ineffective assistance of counsel, nor has it found Mr. Moffat to be incompetent. It has simply found the statements of Mr. Moffat to be so global and outrageously candid that they potentially affect the attorney-client relationship," Davis wrote in his ruling. "This court is not persuaded by the arguments of Mr. Griffard."
Moffat argued in October that his lack of qualifications to handle a post-conviction appeal in a death-penalty case could have grievous consequences for Carter. He said he only took the case because his co-counsel, Griffard, was qualified, but Griffard was unable to fully participate in Carter's appeal.
"While I did my best, there is no question that I completely made a mess of this case because of my lack of experience and training, and Mr. Carter has not had the benefit of qualified counsel on this case," Moffat said in October.
A status conference will be scheduled so that Davis and the attorneys can determine the next step in the case. Assistant Attorney General Thomas Brunker, who is representing the state, said Davis must still rule on a motion in which Carter asked to be able to file more briefings in the appeal of his death sentence. Once that is settled, the court will likely hear arguments on the state's motion to dismiss the appeal.
"I think the ruling is sound," Brunker said. "It would've been better from a practical standpoint if both attorneys had been left on the case, but by leaving the clearly qualified attorney on the case, it means, I think, that the case will move forward more quickly than if he had allowed both of them to withdraw."
Brunker said Griffard will have 60 days to find local co-counsel. That co-counsel is not required to be trained in criminal law or post-conviction relief.
Griffard declined to comment on the ruling.
Moffat was ambivalent about the ruling, saying he didn't know exactly how to feel about it.
"It's not like I view it as any kind of huge victory or anything like that. Judge Davis strived to make a good ruling for Mr. Carter. I think he understands that Mr. Carter needs to have a lawyer who's qualified in this area of the law to represent his interests," Moffat said.
Brunker said that keeping Moffat as Carter's attorney could have prolonged the case if another judge ruled later that Moffat should have been allowed to withdraw.
"We're pushing this as quickly as we can. I think that Judge Davis is clearly sensitive to the timing issue and has been ruling accordingly," Brunker said. "He's recognized that messing up this motion to withdraw could have actually prolonged the case, and I think his ruling was designed to curtail that as much as he could."
Moffat said he would have liked to have seen Davis address the issue of financial compensation, the other reason he cited for wanting to withdraw from the case. Moffat's firm received about $10,000 in compensation for representing Carter. But his firm spent more than 500 hours on the case, which Moffat said would cost about $82,000 under normal rates.
"I guess that issue is left for another day," Moffat said.
In another ruling on Tuesday, Davis rejected a motion filed by Carter and Moffat to include in the court record a 350-page brief filed by the Utah Association of Criminal Defense Lawyers in a different death-penalty case. The briefing focused heavily on what the association said was inadequate compensation for attorneys who are forced to represent death-row inmates on appeal.
Carter was sentenced to die for the 1985 murder of Eva Olesen during a robbery in Provo. Olesen was the aunt of a former Provo police chief.
• Jeremy Duda can be reached at 344-2561 or jduda@heraldextra.com
Source:Daily Herald
Jeremy Duda - DAILY HERALD
A judge ruled that attorney Mark Moffat can withdraw as counsel for a death-row inmate who is appealing his sentence, but Moffat's co-counsel, an attorney in Boise, will have to stay on the case.
Fourth District Judge Lynn Davis issued his ruling on Tuesday, writing in his decision that Moffat's insistence that he was not qualified to represent Douglas Stewart Carter may have negatively affected the attorney-client relationship. But Davis rejected the arguments of attorney Leo Griffard, Moffat's co-counsel, who Moffat said was qualified to handle the case but was unable to devote much time to it due to the demands of his practice in Idaho.
"The court has not found ineffective assistance of counsel, nor has it found Mr. Moffat to be incompetent. It has simply found the statements of Mr. Moffat to be so global and outrageously candid that they potentially affect the attorney-client relationship," Davis wrote in his ruling. "This court is not persuaded by the arguments of Mr. Griffard."
Moffat argued in October that his lack of qualifications to handle a post-conviction appeal in a death-penalty case could have grievous consequences for Carter. He said he only took the case because his co-counsel, Griffard, was qualified, but Griffard was unable to fully participate in Carter's appeal.
"While I did my best, there is no question that I completely made a mess of this case because of my lack of experience and training, and Mr. Carter has not had the benefit of qualified counsel on this case," Moffat said in October.
A status conference will be scheduled so that Davis and the attorneys can determine the next step in the case. Assistant Attorney General Thomas Brunker, who is representing the state, said Davis must still rule on a motion in which Carter asked to be able to file more briefings in the appeal of his death sentence. Once that is settled, the court will likely hear arguments on the state's motion to dismiss the appeal.
"I think the ruling is sound," Brunker said. "It would've been better from a practical standpoint if both attorneys had been left on the case, but by leaving the clearly qualified attorney on the case, it means, I think, that the case will move forward more quickly than if he had allowed both of them to withdraw."
Brunker said Griffard will have 60 days to find local co-counsel. That co-counsel is not required to be trained in criminal law or post-conviction relief.
Griffard declined to comment on the ruling.
Moffat was ambivalent about the ruling, saying he didn't know exactly how to feel about it.
"It's not like I view it as any kind of huge victory or anything like that. Judge Davis strived to make a good ruling for Mr. Carter. I think he understands that Mr. Carter needs to have a lawyer who's qualified in this area of the law to represent his interests," Moffat said.
Brunker said that keeping Moffat as Carter's attorney could have prolonged the case if another judge ruled later that Moffat should have been allowed to withdraw.
"We're pushing this as quickly as we can. I think that Judge Davis is clearly sensitive to the timing issue and has been ruling accordingly," Brunker said. "He's recognized that messing up this motion to withdraw could have actually prolonged the case, and I think his ruling was designed to curtail that as much as he could."
Moffat said he would have liked to have seen Davis address the issue of financial compensation, the other reason he cited for wanting to withdraw from the case. Moffat's firm received about $10,000 in compensation for representing Carter. But his firm spent more than 500 hours on the case, which Moffat said would cost about $82,000 under normal rates.
"I guess that issue is left for another day," Moffat said.
In another ruling on Tuesday, Davis rejected a motion filed by Carter and Moffat to include in the court record a 350-page brief filed by the Utah Association of Criminal Defense Lawyers in a different death-penalty case. The briefing focused heavily on what the association said was inadequate compensation for attorneys who are forced to represent death-row inmates on appeal.
Carter was sentenced to die for the 1985 murder of Eva Olesen during a robbery in Provo. Olesen was the aunt of a former Provo police chief.
• Jeremy Duda can be reached at 344-2561 or jduda@heraldextra.com
Source:Daily Herald