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We Cannot Be Sloppy With Death Sentences

ALBUQUERQUE, N.M. — Any mention of death row inmates going to court on appeal – for example, my column a few weeks ago about the argument that in a state that now outlaws the death penalty it constitutes cruel and unusual punishment – is bound to stir up a predictable response: Cry me a river, you bleeding hearts. Let ’em hang.

The appeals process after a death sentence is lengthy and automatic, and for good reason. At the end of it, we should be sure the guy getting the lethal injection in the name of all of us committed the crime and that the death sentence was the result of a fair trial.

But it ties up lawyers and courts for years, often decades, and involves technical details and arcane arguments. And that leads to another predictable response: These guys will argue any technicality to save their skin.

But consider for a minute Timothy Allen, who is in his 17th year on New Mexico’s figurative “death row.”

He has been in appeal for a very long time, and these are some of the arguments – far from technicalities -he is claiming:

Before Allen was convicted of murder and sent to death row, his lawyers had no idea their client had been diagnosed with schizophrenia and treated for it, or that he had reported hearing voices in his head for years telling him to rape a girl, or that he told people he killed because voices in his head commanded him to.

His three-lawyer defense team was disorganized and inexperienced – and that’s by their own admission. His current legal team is arguing that the mistakes of his lawyers shouldn’t cost Allen his life.

Allen was convicted in 1995 of kidnapping a 17-year-old girl in Flora Vista, near Farmington, trying to rape her, strangling her and leaving her in the sand under a juniper tree.

His lawyers didn’t know Allen had a history of mental illness, so they didn’t pursue mental illness as a defense. Instead, the defense was one of mistaken identity, even though Allen had confessed to the crime.

Once Allen was convicted of capital murder, his lawyers didn’t offer a single witness to tell the jury why Allen should be spared the death penalty.

In sworn statements filed with the court, Allen’s lawyers admitted shortcomings in defending him against the death penalty.

Kari Converse, then an assistant public defender, said she was called into the Allen case several weeks before his trial was scheduled to start and found that Allen’s two public defenders had not yet tried to uncover his psychiatric history.

Assistant Public Defender Joseph Shattuck was subject to random drug testing by the Supreme Court’s disciplinary board when he got Allen’s case. Shattuck said in a sworn statement that he appointed assistant public defender Marc Gordon, who had never tried a death penalty case, as the lead attorney. He said he thought Gordon knew what he was doing and did not closely supervise him.

Gordon in his affidavit said he had no training in how to defend a death penalty case and Shattuck was “not terribly responsive” to his questions.

Once Allen was convicted and sentenced and sent to the penitentiary, he began to see a psychiatrist. In the course of his evaluation, the psychiatrist said he learned that Allen had a history of seizures, of psychiatric problems and experienced auditory hallucinations. He concluded that Allen was psychotic at the time of the murder and committed the abduction and murder “while under the influence of command hallucinations, not willfully.”

Other psychiatrists agreed with the diagnosis, and records from the Virginia prison system where Allen served a robbery sentence show he reported hallucinations and was prescribed an anti-psychotic medication in 1983 and that he was admitted to the Topeka State Hospital in 1991 with a schizophrenia diagnosis.

With Allen’s psychiatric history in hand, his lawyers might have mounted a defense of insanity or diminished capacity or they might have considered a guilty but mentally ill plea.

All those issues are part of Allen’s habeas corpus case in District Court in San Juan County. Prosecutors in an initial response to the claims rebutted the core of the argument – that Allen’s legal team deprived him of a fair trial. That process will continue, with lawyers on either side arguing the evidence for and against the claims and a judge will ultimately decide whether Allen was deprived of his constitutional right to a fair trial.

That will all take more lawyers, more appeals further up the court chain and more time. If you believe in the Constitution and want to make sure we get it right before we take a life, it’s time well spent.

UpFront is a daily front-page news and opinion column. Comment directly to Leslie at 823-3914 or llinthicum@abqjournal.com. Go to www.abqjournal.com/letters/new to submit a letter to the editor.
— This article appeared on page A1 of the Albuquerque Journal

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