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John Fautenberry's Amended Limited Motion for Stay of Execution

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John Fautenberry's Amended Limited Motion for Stay of Execution IN THE SUPREME COURT OF OHIO STATE OF OHIO, Appellee, : Case No. 94-722 vs. : Death Penalty Case JOHN FAUTENBERRY, Appellant. JOHN FAUTENBERRY'S AMENDED LIMITED MOTION FOR STAY OF EXECUTION John Fautenberry moves this Court for a stay of his execution which is set for July 14, 2009. He currently has a request pending in the federal court district for funding to pursue clemency. That request is made pursuant to a recent United States Supreme decision from which he could not have previously benefitted. Mr. Fautenberry has attached a memorandum in support that he incorporates in this motion. He requests that this Court stay his execution for a period of sixty days. NNIS L. STE - 0906199 Buell and Sipe Co. LPA - 2 322 Third Street sii^r : 2( t a Marietta , OH 45750 740-373-3219 (Telephone) 00:.CtES Cti- COUFi7 (740) 373-2892 (Facsimile) SUPREME COURT Our GE;fo den nisa,buellsipe . com COUNSEL OF RECORD And Office of the Ohio Public Defender RANDALL L. PORTER - 0005835 Assistant State Public Defender TYSON FLEMING - 00731351 Assistant State Public Defender 230 E. Broad Street - Suite 1400 Columbus, Ohio 43215 (614) 466-5394 (Voice) (614) 644-0708 (Facsimile) T'yson.Flening@opd. ohio.gov Randall. [email protected] Counsel for John Fautenberry MEMORANDUM IN SUPPORT On April 1, 2009, the United States Supreme Court decided Harbison v. Bell, 129 S.Ct. 1481 (2009). The Court in Harbison declared that federal habeas counsel's appointment extended to state clemency proceedings. On June 3, 2009, the federal court extended Dennis Sipe's ("Undersigned") appointment for purposes of the state clemency proceedings. Fautenberry v. Mitchell, S.D. Ohio Case No. 1:00-cv-00332. Undersigned, pursuant to the appointment, has requested funding from the federal court for the clemency proceedings. [Doc. No. 126]. That motion is still pending. 2 This Court has set an execution date for July 14, 2009. State U. Fautenberry, 121 Ohio St. 3d 1437, 903 N.E.2d 1221 (Ohio 2009). The parole board has scheduled Mr. Fautenberry's clemency hearing for June 16, 2009.1 1. CLEMENCY IS AN INTEGRAL PART OF THE PROCESS Clemency performs an integral function in the capital appeals process, one that complements the role of the courts. There are at least two critical functions that the clemency process plays that the courts do not. First, clemency is a means of last resort for correcting error in the process. Second, the clemency process permits the state executive to consider sentencing factors that courts, for a variety of reasons, may not have been able to take into account, such as capital defendants' blameworthiness, the proportionality of the sentence, and the desirability of exercising mercy. Clemency, in other words, provides a final opportunity to review both a defendant's convictions and sentences. The Supreme Court's most clear statement of its reliance on a robust clemency process to ensure the correction of erroneous verdicts was articulated in Herrera v. Collins, 506 U.S. 390 (1993). In Herrera, the Court essentially foreclosed claims of actual innocence on habeas review that were not presented to the trial court. Integral to the Court's holding was that clemency provides a mechanism for review of the potential errors that habeas review is not able to correct: it is the '-fail safe' in our criminal justice system." Id. at 415; see also at 417 (clemency is the "remedy for claims of innocence based on new evidence, 1 The Governor has previously ruled on clemency requests just prior to the execution. As a result, he has accepted information concerning clemency until he renders his decision. Thus, the Parole Board's conducting of the June 16, 2009 hearing will not moot this request. 3 discovered too late in the day to file a new trial motion"). The Court therein also stressed the rich history of clemency in Anglo-American criminal law. It "can be traced back to the 700's," featured prominently in Blackstone's Commentaries and the Federalist Papers, and today is available in all thirty-six states that authorize capital punishment. Id. at 412-14. Indeed, "[c]lemency is deeply rooted in our Anglo-American tradition of law, and is the historic remedy for preventing miscarriages of justice where judicial process has been exhausted." Id at 411-12 (footnote omitted). II. MR. FAUTENBERRY HAD NO RIGHT TO COUNSEL IN CLEMENCY PRIOR TO HARBISON. Undersigned was appointed and represented Mr. Fautenberry throughout the federal habeas proceedings. However, pursuant to Sixth Circuit precedent, once those proceedings concluded, the appointment expired and did not extend to state clemency proceedings. Harbison v. Bell, 503 F. 3d 566, 570 (61h Cir. 2007); House v. Bell, 332 F. 3d 997, 998-9 (6ffi Cir. 2003) (en banc).2 At that point, Mr. Fautenberry faced the daunting task of being represented by one attorney, and that attorney faced the real possibility of appearing pro bono. Undersigned's law firm consists only of two lawyers and lacked the resources to provide pro bono representation for Mr. Fautenberry.3 2 The attorney the federal district court appointed as co-counsel was removed by the Sixth Circuit. 3 At the conclusion of Mr. Fautenberry's habeas proceedings, the Office of the Ohio Public Defender, despite having no familiarity with the case agreed to represent Mr. Fautenberry in clemency and any last minute litigation. While that Office had represented Mr. Fautenberry in state post-conviction, One of the attorneys who represented him has left the Office. The other attorney had ceased doing capital cases. 4 III. THE SUPREME COURT RECOGNIZED THE RIGHT TO COUNSEL. On April 1, 2009, the Supreme Court held that 18 U.S.C. "§ 3599 authorizes federally appointed counsel to represent their clients in state clemency proceedings and entitles them to compensation for that representation." Harbison, at 1491. The Court found that the plain wording of the statute dictated this result. Id. at 1486. See § 3599(a)(2)(e) ("each attorney so appointed shall represent the defendant throughout every subsequent stage of available judicial proceedings, including . proceedings for executive or other clemency as may be available to the defendant").4 After the Supreme Court decided Harbison, Mr. Fautenberry had to revisit the issue of who would represent him in the clemency proceedings. The undersigned, state public defender, and the federal public defender expressed interest. Ultimately, it was agreed that undersigned would represent Mr. Fautenberry, given his knowledge of his case.s The holding in Harbison was instructive, "the work of competent counsel during habeas corpus representation may provide the basis for a persuasive clemency application. 4§ 3599 uses the term "defendant" to denote post-conviction litigants. Harbison, 129 S.Ct. at 1486, n.2. 5 The Ohio Public Defender agreed to provide two attorneys for support. Unfortunately, the more experienced of the two attorneys was one of the attorneys who represented Michael Bies before the United States Supreme Court. Bies v. Ohio, Case No. 08-598. Thus, he was not available until after April 27, 2009. He was also lead counsel in a capital resentencing hearing scheduled to start in the middle of May, but an illness in his family caused that resentencing hearing to be continued. 5 Harbison's federally appointed counsel developed extensive information about his life history and cognitive impairments." Harbison, 129 S. Ct. at 1491. IV. CLEMENCY COUNSEL IS REQUIRED TO REINVESTIGATE THE CASE. Clemency counsel is under a duty to "conduct an investigation in accordance with Guideline 10.7." 2003 Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Case, § 10.15.2. ("ABA Guidelines")6 "Counsel at every stage have an obligation to conduct thorough and independent investigations relating to the issues of both guilt and penalty." 2003 ABA Guideline 10.7. A thorough investigation includes the defendant's "(1) medical history (including hospitalizations, mental and physical illnesses or injury, alcohol and drug usage, pre-natal and birth trauma, malnutrition, development delays, and neurological damage); (2) [fJamily and social history (including physical, sexual or emotional abuse; family history of mental illness, cognitive impairments, substance abuse, or domestic violence, poverty, familial instability, neighborhood environment, and peer influence) . ;" Id. at Commentary. The "penalty phase investigation requires extensive and generally unparalleled investigation into personal and family history.(citations omitted)" Id. 6 The American Bar Association standards accurately reflect the prevailing norms for purposes of evaluating counsel's performance. Wiggins v. Smith, 539 U.S. 510, 524 (2003); Hamblin v. Mitchell, 354 F.3d 482, 487 (611, Cir. 2003). Counsel must fully comply with these norms. Dickerson v. Bagley, 453 F.3d 690 (6th Cir. 2005). 6 V. THE REINVESTIGATION INCLUDES THE RETENTION OF EXPERTS.. The investigation "will often require specialized research and expert consultation." 2003 ABA Standard Guideline 10.7, Commentary. Counsel should "establish a direct cause and effect between" mitigating factors and the commission of the offense. 2003 ABA Guideline 10.11, Commentary. Counsel should consult with experts to explain the significance of the events in a client's life, "For example, expert testimony may explain the permanent neurological damage caused by fetal alcohol syndrome or childhood abuse, or the hereditary nature of mental illness, and the effects of these impairments on the client's judgment and impulse control." 2003 ABA Guideline, 10.11, Commentary. Likewise, the defendant must explain the commission of the offense in the context of the defendant's mental health deficits and other mitigating factors. Id. VI. EXPERT ASSISTANCE IS CRITICAL GIVEN THE FACTS OF THIS CASE. If Mr. Fautenberry is to receive fair consideration for clemency, he requires expert assistance. Mr. Fautenberry is indigent and therefore cannot afford to retain any experts.
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