Stewart, Terry, Dir., Arizona Dept. of Corrections v. Smith, Robert Douglas

Questions presented: At the time the defendant filed a post-conviction petition in state court under Arizona's rule 32.2(a)(3), did the question whether an asserted claim was of “sufficient constitutional magnitude” to require a knowing, voluntary and intelligent waiver for the purposes of that rule depend upon the merits of the particular claim or merely upon the particular right alleged to have been violated?

BY KELLY YUEH, MEDILL NEWS SERVICE

On March 11, 1980, Sandra Owen was hitchhiking in the Tucson area when she was picked up by Robert Douglas Smith, Joe Leonard Lambright and Kathy Foreman. Smith, who was from the Houston area, raped Owen twice. She was then taken to remote mountains outside Tucson where Owen was killed as Lambright and Smith choked her, stabbed her and hit her in the head with a large rock. Owens body was covered with rocks, and the body was not discovered until one year later.

Lambright and Smith, who is now 53-years-old, were both charged with the crime, and were tried together in Tucson before two separate juries.

At Smith's trial, witnesses said Smith confessed to the crime without remorse. The main prosecution witness, Foreman, agreed to testify against Smith in exchange for Pima County prosecutors agreeing not to prosecute her.

The only evidence presented on Smiths behalf was the testimony of Smith's two sisters and mother-in-law. They portrayed Smith as a nice man who grew up in an unstable household.

Dr. Martin Levy, who examined Smith to determine if he was competent to stand trial, said Smith had a history of depression that included multiple suicide attempts. Levy said Smith suffered both psychological and physical abuse growing up in a broken home and trying to run away more than once. Additionally, Smith said he was gang-raped in a county jail when he was 18-years-old. Smith also had a history of drug abuse.

But Smith's attorney, a Pima County deputy public defender, Thomas G. Hippert, did not present any of this evidence during the trial.

"Robert has an IQ of 71; hes not the brightest guy in the world," said S. Jonathan Young, who represents Smith now. "He's got very clear psychological limitations. Hes never been to see a psychologist, a psychiatrist or a neuropsychologist to check for brain damage."

Not only did Hippert fail to investigate Smiths mental state and history, but he seemed to misunderstand Arizonas capital punishment law, which includes psychological disorders as a mitigating circumstance.

Rather, Smiths counsel appeared to think that evidence of a mental disability would justify the death penalty. In his closing argument, Hippert implied that Smith was a person of average intelligence who did not have any major personality disorders.

On March 30, 1982, Smith was convicted of first-degree murder, kidnapping and sexual assault, and two months later, sentenced to death by the trial judge.

Smith appealed his conviction and sentence to the Arizona Supreme Court where he was represented by Lawrence H. Fleischman, a Pima County deputy public defender. On the direct appeal, a petition for post-conviction relief was also filed. The Arizona Supreme Court affirmed both Smiths conviction and sentence.

Another Pima County deputy public defender, John F. Palumbo, filed a series of post-conviction petitions, which were all denied. None of the petitions included a claim of ineffective assistance of counsel.

Smith also filed a federal petition for a writ of habeas corpus. He wrote a letter to Richard M. Bilby, the Chief Judge of the U.S. District Court for the District of Arizona. In an extremely misspelled letter riddled with grammatical errors, Smith said he wanted Palumbo to include the issue of ineffective assistance of counsel in his appeals. However, Palumbo did not honor Smiths requests.

Palumbo confirmed that he did not raise the claim because his employer, the Pima County Public Defenders Office, was a state agency that prohibited lawyers from criticizing their peers performances.

"The state's view is if there is some kind of conflict, the remedy isnt just to sit there and wait to do nothing. The attorney can withdraw," Arizona Assistant Attorney General Kent E. Cattani said. "If it happens to be your own ineffectiveness or your law partners ineffectiveness, you still have a responsibility to raise [the issue of incompetent counsel]."

The federal district court appointed Young, a lawyer in private practice, to help Smith. Young filed another post-conviction petition, which alleged Smith's trial and appellate lawyers were ineffective.

A federal judge dismissed the petition. The judge called the claim of ineffective assistance of counsel "outrageous or ridiculous" because it implied that deputies of the Pima County Public Defenders Office were not doing their jobs properly.

In addition, the judge ruled that Smiths claims were too old, according to Arizonas Rule 32.2. The state rule "applies where a petitioners 'belated focus on an alleged error' lacks sufficient constitutional magnitude to review an issue." The judge said Smiths claim was precluded as a matter of state law.

"The rule itself is straightforward: If you fail to raise something in a previous proceeding that you should have raised, then its precluded," Cattani said.

The rule also states that if an asserted claim is of "sufficient constitutional magnitude," then a waiver of such a claim is required to be "knowing, voluntary and intelligent."

On March 6, 2001, the 9th Circuit Court of Appeals reversed. It said, "A state courts procedural ruling will bar our [habeas] review only if its basis is separate and distinct from the federal question." In the same appeal, the court also agreed that the dual jury system used in trying Smith was acceptable.

The 9th Circuit also ordered an evidentiary hearing in the district court. Smith said he was entitled to such a hearing to develop his ineffective assistance of counsel claim. "No court has given Smith an opportunity to develop a factual record on his Sixth Amendment claim," the federal appeals court said.

The state of Arizona then petitioned the U.S. Supreme Court to review the 9th Circuit decision.

At issue is whether Smiths post-conviction petitions were of "sufficient constitutional magnitude" to require a "knowing, voluntary and intelligent waiver" under Arizona's rule. If so, were the decisions made based on the strengths of the claim or the mere allegation that Smith's 6th Amendment right to counsel was violated?

The U.S. Supreme Court has ruled before about providing ineffective assistance of counsel. In 1984 in Strickland v. Washington, the standard for a lawyers deficient performance was described as "outside the wide range of professionally competent assistance." Also, a petitioner must show a "reasonable probability" that the outcome of a trial would be different without the poor performance of an incompetent lawyer, whose actions can include failure to investigate and present evidence about a persons mental disabilities and history.

"[Smith] has had his day in court,"" said Kent S. Scheidegger, of the Criminal Justice Legal Foundation who wrote a friend-of-the-court brief on behalf of the state of Arizona. "He's had a fair decision in court."

On Dec. 12, 2001, the U.S. Supreme Court granted certiorari in the case and issued a per curiam opinion certifying a question to the Arizona Supreme Court to help the Court decide if it should address the issue of ineffective assistance of counsel.

The question certified was: At the time Smith filed a post-conviction petition in state court under Arizona's rule 32.2(a)(3), did the question whether an asserted claim was of "sufficient constitutional magnitude" to require a knowing, voluntary and intelligent waiver for the purposes of that rule depend upon the merits of the particular claim or merely upon the particular right alleged to have been violated?

"The issue is whether the state courts are required to address the merits of a claim before deciding its precluded," Cattani explained.

Young said if the Arizona Supreme Court considered the merits of the claim, then the U.S. Supreme Court can hear the case. However, if the Arizona court merely looked at the type of claim, then the state has not considered the claim enough to warrant federal attention.

"There's a question as to whether Arizonas comment rests on state grounds or the U.S. Constitution," Young said. "The United States Supreme Court is considering whether or not Arizona has taken a sufficient look at the case to justify getting the federal courts involved."

Oral arguments before the Arizona Supreme Court were heard on March 26, 2002. The U.S. Supreme Court will proceed further after it receives a response from the state high court.

"[The case] is just one more piece of a very large and complex puzzle about the law of habeas corpus," Scheidegger said. "This is not a landmark case."

Meanwhile, more than 20 years later, Smith is still on Arizonas Death Row.