OPEN FORUM y client, Johnny Joe Martinez, is scheduled to be executed in Texas on May 22. In 1994, he committed murder, and .116. he has been remorseful literally since the moment he did so. Immediately after stabbing Clay Peterson, a clerk at a convenience store in Corpus Christi, he dialed the 911 operator to call for an ambulance for his victim and then turned himself in. After waiting for the police to come pick him up, the first thing he inquired about was the condition of the man he had stabbed. The man had died. There were no warning signs that Martinez would commit this murder. He had never before been convicted or even arrested for any crime. He had never acted violently, even when, as a young man, he was taunted for his effeminate characteristics. But on one night, drunk and in the company of another man, he took a life. The death penalty is not designed for men like Martinez. The Supreme Court held twenty-five years ago that it is not permissible for a state to execute someone simply because that person commits murder. It is necessary for the state to establish something in addition to the murder: the crime was unusually horrific, or that the murderer will likely kill again. Neither of these criteria justifies the execution of Martinez. So why is he on death row? The simple answer is that his lawyers made two costly mistakes. Death penalty trials occur in two stages. First, the state must establish that the defendant committed the act for which he is being charged. If the defendant is found guilty, then, at the second stage, the punishment phase, the state’s task is to provide evidence that the defendant should be executed. The defense lawyer’s task at the punishment phase is to persuade the jury that the defendant is worth saving, that he has redeeming qualities. This is not to excuse the commission of the murder, but to justify a life sentence rather than the death penalty. At Martinez’s trial, the state did not introduce any punishment phase evidence at all, for there was nothing to introduce. Martinez did not have a checkered past. He was not a career criminal. He was not a defendant whom the jurors could easily regard as a savage animal rather than a human being. Yet the state requested the death penalty, and that meant Martinez’s lawyer had to do something. He did not. He barely put on a case at all. He did more than nothing, but not nearly enough. That was the first mistake. As a consequence, the jury sentenced Martinez to death. One might think, in view of the fact that Martinez is set to be executed next month, that some court has determined that Martinez’s trial lawyer was not in fact as inept as I have suggested. If one were to reach that conclusion, one would be wrong. No court at any levelneither state nor federalhas ever addressed the question of whether Martinez’s trial lawyer was ineffective. The tragically surreal reason is that Martinez had the misfortune of having a second lawyer who was even worse than the first. The lawyer appointed to represent Martinez in his habeas corpus appeals had never handled a death penalty appeal before. The role of that lawyer, like the job of all death penalty habeas lawyers, was to point out exactly how the trial lawyer had been ineffective. Habeas lawyers proceed by first determining what the trial lawyer could have done, but didn’t. Martinez’s habeas lawyer, however, conducted no such inquiry. He filed legal pleadings that demonstrated that he had no familiarity with death penalty litigation, an unusually arcane area of law. He never once challenged the competence of the trial lawyer in the documents he filed in state court. That was the second mistake. No state court addressed the competence of Martinez’s trial lawyer, because Martinez’s habeas lawyer neglected to ask the state court to do so. Once the case made its way to federal court, which is when I became involved in the litigation, it was too late. The federal courts will not consider an issue that is not first presented to the state courts. Martinez’s new lawyers implored the federal courts to create an exception to this rule for cases where the state habeas lawyer’s incompetence was the only reason the case did not come before a state court. But the federal courts declined Martinez’s plea and ruled against him, because they viewed themselves as bound by previous decisions of the Supreme Court.The result is a man on death row in Texas who would not be there if he had received competent legal representation at his trial. That is my opinion. No court has agreed with that assessment, but no court has disagreed with it either, because no court has been willing to examine it. I have told my client that his lawyers have not given up, and that we plan to ask the Supreme Court to review the case if the state’s highest court once again turns us down. But I have also told him that he should prepare himself for the worst. Courts are not fond of death penalty appeals, at least when the death row inmate does not claim that he is innocent, and Martinez has admitted from the outset that he made a terrible mistake.Yet he is on the precipice of losing his life not because of his mistake, but because of those of his lawyers. David R. Dow is a professor at the University of Houston Law Center. His book, Machinery of Death \(edited with Rotttledge. Executing Johnny Joe BY DAVID DOW 12 THE TEXAS OBSERVER 5/10/02
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