The Supreme Court issued an order halting the execution of Mark Christeson hours before it was due to take place.
The court — over the dissent of Justices Antonin Scalia, Clarence Thomas, and Samuel Alito — issued a stay of execution while Christeson's petition for Supreme Court review of his request for new lawyers to be appointed for him is considered.
Mark Christeson is due to be executed by Missouri at 12:01 a.m. Oct. 29 for the murder of Susan Brouk and her two children, Kyle and Adrian.
In an unusual filing at the Supreme Court on Monday, however, several former state and federal judges argue that the execution should not go forward because the "rush to execute" Christeson has "privileged finality above fairness." The former judges ask the Supreme Court to step in "to restore balance to the administration of the death penalty."
Christeson attempted to seek federal review of his conviction through a habeas corpus petition filed in 2005, but the federal district court denied his petition because it was filed late. The same lawyers who had represented him in that late filing — Eric Butts and Phil Horwitz — have continued to represent him since then.
Earlier this year, when Christeson found out that his habeas corpus petition had been dismissed and that the state was readying to execute him, attorney Jennifer Merrigan began attempting to have another lawyer appointed for Christeson.
The new lawyer, she argued, could bring a claim that Butts and Horwitz's actions are egregious enough that Christeson should still be able to pursue federal review of his conviction. Butts and Horwitz could not be expected to make that argument, she stated, as it would mean impugning their own legal work. As such, she concluded, they have a conflict of interest and Christeson should get a new lawyer.
After the trial court and 8th Circuit Court of Appeals denied the request for substitution of counsel, Merrigan has asked the Supreme Court to do so — and to grant Christeson a stay of execution so this can be worked out.
Merrigan is not alone. Several former judges — including retired 6th Circuit Court of Appeals Judge Nathaniel Jones, other former federal judges, former state supreme court justices, and other former state judges — filed a brief with the court in support of Christeson's claim. They argue that "the lower courts set the terrible precedent that federal courts can reject a capital inmate's request for relief without considering the core of his argument, or even ensuring that his attorneys are capable of representing his interests."
Another request for a stay of execution for Christeson based on Missouri's secrecy surrounding its execution protocol, filed by Butts, was denied by the full 8th Circuit. Butts could seek to appeal that denial at the Supreme Court.
Merrigan lays out Christeson's claim in Monday's filing at the Supreme Court:
Merrigan also claims that Butts and Horwitz have revealed privileged communications with Christeson in order to protect their own interests:
The lower courts' decisions, Merrigan argues, conflict with recent Supreme Court decisions on related issues:
Merrigan argues that Christeson tried to receive substitute counsel as soon as he learned Butts and Horwitz had a conflict:
Merrigan also argues that Butts and Horwitz had long abandoned Christeson by failing to file his initial petition for federal habeas review on time:
In the former judges' filing in support of Christeson's request, they echo Merrigan's arguments:
And also assert that the handling of Christeson's case raises larger questions about the courts' role in overseeing executions:
Justice Samuel Alito has called for additional briefing on whether Merrigan is authorized by Christosen to make the request for substitution of counsel.
Attorney Merrigan detailed in a new filing that Christeson "had repeatedly urged Ms. Merrigan and Mr. Perkovich to replace his appointed lawyers." Several statements are included in the supplemental briefing that was requested by Justice Alito.
"Because client communications are confidential, we had not previously filed those with the Court (though the record is replete with examples of his consent). Upon receiving the Court's order this afternoon, we spoke with our client and obtained his consent to reveal those confidential communications," Merrigan told BuzzFeed News on Tuesday afternoon.
Ethics professors and lawyers specializing in habeas corpus review also have weighed in to support Christeson's request at the Supreme Court.
Missouri officials tell the Supreme Court in a filing Tuesday that "the record does not show that Christeson has authorized Merrigan, Mills or Perkovich to move for substitution of counsel."
Chris Geidner is the legal editor for BuzzFeed News and is based in Washington, DC. In 2014, Geidner won the National Lesbian & Gay Journalists Association award for journalist of the year.
Contact Chris Geidner at firstname.lastname@example.org.
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