Amicus Curiae Brief — Stewart v. Martinez-Villareal

SUPREME COURT OF THE UNITED STATES

October Term, 1997

Terry Stewart, Director,

Arizona Department of Corrections, et al.,

Petitioners,

vs.

Ramon Martinez- Villareal,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

BRIEF AMICUS CURIAE OF THE

UNITED MEXICAN STATES; MIGUEL ANGEL

f GONZALEZ,

Legal Advisor of the Secretary

of Foreign Relations of Mexico;

LUIS CABRERA, Consul General

of Mexico in the State of Arizona

IN SUPPORT OF THE RESPONDENT

LEWIS AND ROCA LLP |

John P. Frank |

José A. Cardenas*

*Counsel of Record |

Todd E. Hale ;

40 North Central Avenue

Phoenix, Arizona 85004-4429 ,

Telephone: (602) 262-5311

Facsimile: (602) 262-5747

Attorneys for Amicus Curiae

BEST AVAILABLE COPY

TABLE OF CONTENTS

Page

Tee CE ATI ee BI cccevctchecnececictchcccsecterccvesserceseceees ii

INTEREST OF AMICUS CURIAE ......0.cc.csscsssssesseeseseeseeses l

SUMMARY OF ARGUMENT...............cccccsssssesssseesseeseenees l

FE tarcctctianiiiteeitiaateerctispaintietpeenie

Mr. Martinez Has Been Treated Unfairly................... 2

Petitioners’ Interpretation Of The AEDPA

Violates International Law And Basic

Principles Of Equity And Fairness ........................06+. 6

III Wali hiciniciihlederaciacedlaicchtd li rusditinicteeiecssseverineceece 9

TABLE OF AUTHORITIES

Federal Cases

Ford v. Wainwright,

477 U.S. 399 (1986) cecccccssevsscssssseseseseees

Martinez-Villareal v. Lewis,

80 F.3d 1301 (9th Cir.),

cert. denied sub nom.

Martinez-Villareal v. Stewart,

117 S. Ct. 588 (1996) ..ccccccsssseeesesseeeeeen

Martinez-Villareal v. Stewart,

118 F.3d 625 (9th Cir. 1997) 2... eeeeees

United Mexicar States v. Woods,

126 F.3d 1220 (9th Cir. 1997)............0..

Docketed Cases

Martinez-Villareal v. Lewis,

No. CIV-88-296-TUC-RMB

(D. Ariz. Oct. 20, 1994) oes... a

Rules, Regulations and Statutes

eee eee eeeeeee

OAS Res. XXX, O.A.S. Rec. OEA/Ser.L./V/1.4

(1945), as revised (1965) .........:00000

United States Code:

28 U.S.C. § 2244(b)(3(E) .......--cece0s

eC eee ee eee

INTEREST OF AMICUS CURIAE

Respondent Ramon Martinez Villareal is a Mexican

national, and Mexico, as does every sovereign nation, seeks

to protect the rights of its citizens abroad. Mexico does not

use capital punishment and opposes its imposition on its

citizens by other countries. The propriety of the death

penalty, however, is not the focus of this brief. Fundamental!

fairness is, and the Government of Mexico is deeply

concerned that it is being denied to Mr. Martinez.’

SUMMARY OF ARGUMENT

Mindful both of Rule 37.1’s admonition against

needless repetition and of the respect that one sovereign owes

another, Mexico does not intend to tell the Supreme Court of

the United States how it should answer the more complex

questions of statutory construction raised by the parties.

Instead, Mexico contrasts the American justice system's

treatment of Mr. Martinez (and Mexico) with that accorded

the Petitioners. Mr. Martinez ultimately may be executed

because of his counsel's failure to comply with the

technicalities of American law. This is so fundamentally

unfair that Mexico filed its own lawsuit to stop it, but was

rebuffed, again because of technicalities. In contrast,

Petitioners not only successfully took flatly contradictory

positions in the federa! district court, but they also succeeded

' This brief has not been authored in whole or in part by

counsel for a party, nor has any person or entity, other than

the amicus curiae, its members, or its counsel, made a

monetary contribution to the preparation or submission of this

brief. As required by Supreme Court Rule 37.3(a), Mexico

has obtained the written consent of all parties to file this

amicus curiae brief.

in submitting a petition whose filing is prohibited by the very

statute that is the subject of the petition.

This unfairness of treatment is compounded by the

inequity of Petitioners’ position on the merits. Petitioners’

construction of the Antiterrorism and Effective Death Penalty

Act (“AEDPA”) is contrary to fundamental principles of

international law including those imposed by the American

Declaration of the Rights and Duties of Man (hereafter the

“American Declaration”) which is binding upon the United

States. The American Declaration requires that every person

be given meaningful access to the courts to protect against

violations of fundamental constitutional rights. In Ford v.

Wainwright, 477 U.S. 399 (1986), this Court recognized the

tundamental constitutional right not to be executed while

insane and that a federal forum exists to protect that right.

The construction of the AEDPA sought by Petitioners and

their amici means a Ford claim is always too early or too late

for federal review. Such a perverse result is outrageous and

contravenes the United States’ obligations under the

American Declaration.

ARGUMENT

Mr. Martinez Has Been Treated Unfairly

Mexico greatly admires the American justice system,

which is held up to the rest of the world as a model of due

process, and rightly so. That is one reason why Mexico finds

the failure of that system in this case so disturbing.

Only one court has ever considered the merits of Mr.

Martinez’ claims that his death sentence was unconstitutional

because his trial counsel was incompetent. That court agreed:

[T]he Court finds that trial counsel's

performance was constitutionally defective at

2

this critical stage of the proceedings rendering

the result of the sentencing hearing unreliable

Martinez-Villareal v. Lewis, No. CI1V-88-296-TUC-RMB (D.

Ariz. Oct. 20, 1994) (Appendix A at 3 (opinion excerpts)).

At sentencing, [trial counsel] Rothstein

essentially abandoned his role as Martinez-

Villareal's advocate. The errors and omissions

of Rothstein contributed to Martinez- Villareal

receiving a death sentence.... [T]he Court is

convinced that there is a reasonable

probability that, but for Rothstein's errors and

omissions, the result of the sentencing

outcome would have been different.

Id. at A-14. The Ninth Circuit Court of Appeals reversed on

procedural bar grounds, holding that the district court was

bound by the state court findings that the ineffective

assistance of counsel claim was procedurally defaulted

because that same lawyer failed to raise his own

incompetence in the first state post-conviction proceeding.

Martinez-Villareal v. Lewis, 80 F.3d 1301, 1305 (9" Cir.),

cert. denied sub nom. Martinez-Villareal v. Stewart, 117 S.

Ct. 588 (1996).

Three other judges have expressed their views that

executing Mr. Martinez under these circumstances would be

unfair. The judge who sentenced him to death testified at

Mr. Martinez’ clemency hearing that Mr. Martinez should not

be executed. That same day two justices of the Arizona

Supreme Court made the unprecedented request that the

Board of Executive Clemency recommend to the Governor

that Mr. Martinez’ death sentence be commuted to life in

prison:

[T]he evidence makes it clear that Defendant

is mildly retarded and seriously mentally ill.

He may well have been in that condition at the

time of the crime. At the mitigation hearing,

his lawyer did not present evidence of his

mental condition or problems. In subsequent

federal habeas corpus proceedings, the district

judge concluded that the failure to present

such evidence was ineffective assistance of

counsel. This finding was reversed by the

Ninth Circuit Court of Appeals, not because it

was erroneous, but, the court said, because the

issue was precluded because the same lawyer

who performed ineffectively failed to raise his

own lack of effective representation as a

ground for relief.

In short, this is a case that raises

serious doubts about the propriety of the death

sentence. For that reason, we commend this

matter to review by the Board of Executive

Clemency and to commutation by the

Governor to imprisonment for life,

consecutive to all other terms imposed.

Appendix B attached.

The Mexican Government was so appalled that Mr.

Martinez could nevertheless be executed under these

circumstances and without having been afforded the

protection of minimally competent trial counsel that it filed

its own lawsuit seeking to stop the execution. That suit

asserted violations of international law prohibiting the

execution of the mentally retarded and of persons who were

denied the assistance of competent counsel as Mr. Martinez

undeniably was. The suit, which also asserted violations of

the United States’ obligations under the Vienna Convention,

was summarily dismissed by the federal district court — not

on the merits -- but on sovereign immunity grounds.

On appeal, although a stay of execution was already

in place and despite the magnitude of the issues involved, the

Ninth Circuit Court of Appeals ordered expedited briefing

(11 days), denied oral argument, denied Mexico the

opportunity to file a reply brief and limited the briefs to 15

pages. Six days later and without extending the briefing

schedule or deadlines, the court asked the parties to address

three additional justiciability questions. Four months later,

the court affirmed the district court and held that a suit

seeking an injunction against a future act — Mr. Martinez’

execution — was barred because Mexico was not seeking

prospective relief. United Mexican States v. Woods, 126 F.3d

1220, 1223 (9 Cir. 1997).

Mexico is not challenging that decision in this brief.

We nevertheless mention it here for two reasons. First. it is a

further example of the technicalities that are being asserted to

allow Arizona to execuie a retarded man who is on death row

only because of the incompetence of his counsel. Second, it

stands in marked contrast to the treatment accorded the State.

When Mr. Martinez filed his first habeas corpus

petition, his new lawyers raised the issue of his competency

to be executed. The State successfully argued that the claim

was premature. Both the federal district court and the Ninth

Circuit Court of Appeals indicated that the claim could be

pursued when and if an execution was imminent. Upon his

next appearance in federal court, the State said it was now too

late to raise this claim and was again successful. This kind of

legerdemain was too much for the Ninth Circuit and that

court properly rejected the absurdity that a Ford claim is

always too early or too late for federal review. Martinez-

Villareal v. Stewart, 118 F.3d 625 (9" Cir. 1997).

That should have been the end of the matter. The

very statute upon which the State relies prohibits review of

the Ninth Circuit's decision by way of a writ of certiorari. 28

U.S.C. § 2244(b)(3)(E). Yet, certiorari was granted.

Mexico is hard pressed to understand the

technicalities that may send Mr. Martinez to his death. It is

even harder to understand why the procedural rules do not

apply to the Petitioners’ attempts to reverse the one narrow,

albeit very important, decision in Mr. Martinez’ favor.

Petitioners’ Interpretation Of The AEDPA

Violates International Law And Basic Principles

Of Equity And Fairness

Reversing the Ninth Circuit’s decision would violate

fundamental principles of international law. Article XVIII of

the American Declaration requires meaningful access to the

courts:

Every person may resort to the courts

to ensure respect for his legal rights. There

should likewise be available to him a simple,

brief procedure whereby the courts will protect

him from acts of authority that, to his

prejudice, violate any fundamental

constitutional rights.

OAS Res. XXX, O.A.S. Rec. OEA/Ser.L/V/1.4 (1945), as

revised (1965). The Organization of American States

approved the Declaration at the Ninth International

Conference of American States in Bogata, Colombia in 1948.

The United States is bound by the Declaration by virtue of its

1968 ratification of the OAS Charter as amended by the 1967

Protocol of Buenos Aires.

Executing the insane violates fundamental

constitutional rights and “simply offends humanity.” Ford,

477 U.S. at 409-10. In Ford, this Court held that “the Eighth

Amendment prohibits a State from carrying out a sentence of

death upon a prisoner who is insane.” /d. As the Court

noted, the “bar against executing a prisoner who has lost his

sanity bears impressive historical credentials; the practice

consistently has been branded ‘savage and inhuman.’” /d. at

406. The Court then acknowledged the continued vitality of

this “ancient and humane limitation.” Jd. at 409:

[T}he natural abhorrence civilized

societies feel at killing one who has no

capacity to come to grips with his own

conscience or deity is still vivid today....

Whether its aim be to protect the condemned

from fear and pain without comfort of

understanding, or to protect the dignity of

society itself from the barbarity of exacting

mindless vengeance, the restriction finds

enforcement in the Eighth Amendment.

Id. at 409-10. This Court then held that Ford was entitled to

an evidentiary hearing in federal district court on the question

of his competence to be executed. /d. at 418.

Ford established that the right not to be executed

while insane is a fundamental constitutional protection and

proved the need for a federal forum to protect this right.

Petitioners’ construction of the AEDPA would eliminate that

federal forum and eviscerate the ancient substantive right

Ford recognized. In addition to being grossly inequitable in

light of Petitioners’ initial position that this claim was

premature, such a construction contravenes the United States’

obligations under the American Declaration.

The possibility of a state court competency

proceeding does not cure the violation. Under Petitioners’

and their amicis’' construction of the AEDPA, even the

complete absence of a competency hearing is beyond review.

Thus, there would be no way for the United States to ensure

the protection of the fundamental constitutional right not to

be executed while insane. The American Declaration forbids

such a result.

Reversing the Ninth Circuit’s decision would be more

disappointing, more appalling, and more outrageous than any

of the previous rulings against Mr. Martinez. The

constitutionality of the procedural default rules that would

allow the execution of a man represented by an incompetent

lawyer is premised on the notion that Mr. Martinez at least

had one chance (had he perfected his claim) to present his

ineffective assistance claim in federal court. Here, by

contrast, Mr. Martinez did everything he could to present in

federal court his claim of incompetency to be executed.

Nevertheless, although executing the insane unquestionably

violates the Eighth Amendment and “offends humanity,”

Petitioners’ unduly rigid interpretation of the AEDPA would

deprive Mr. Martinez of any chance to obtain federal review

and thus protect this constitutional right.

The notion that a Ford claim is always too early or

too late for federal review is repugnant to fundamental

notions of fairness shared by the society of civilized nations

and reflected in both the American Declaration and the

United States Constitution. It besmirches the system of

justice that Mexico and the rest of the world community so

greatly admire. Mexico cannot accept such a position and

respectfully asks that this Court reject it.

CONCLUSION

The decision of the Ninth Circuit accordingly should

be affirmed.

January 1998.

Respectfully submitted,

LEWIS AND ROCA LLP

John P. Frank

José A. Cardenas*

*Counsel of Record

Todd E. Hale

40 North Central Avenue

Phoenix, Arizona 85004-4429

Attorneys for Amicus Curiae

a

’) a

&-

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

RAMON MARTINEZ- )

VILLAREAL, ) No. CIV 86-296

) TUC RMB

Petitioner, )

)

VS. ) ORDER AND

) MEMORANDUM

SAMUEL A. LEWIS, et al., ) OPINION

)

Respondents. )

)

B. INEFFECTIVE ASSISTANCE OF

COUNSEL CLAIMS

(Claims 4.1, 4.2, 4.3 and 4.4)

William Rothstein represented Martinez-Villareal at his

arraignment, pretrial proceedings, trial, sentencing, direct

appeal to the Arizona Supreme Court, petition for writ of

certiorari to the United States Supreme Court, Petitioner's first

Rule 32 petition, petition for rehearing, and petition for writ of

habeas corpus in United States District Court in addition to

seeking stays of execution in various state and federal

proceedings. Petitioner was subsequently represented by Carla

Ryan, Luis Castillo and Daniel Davis, John Hannah and present

counsel, Sean Bruner. Martinez-Villareal now asserts that he

was denied effective assistance at all stages of the litigation.

A-|

The State contends that these claims are procedurally defaulted

or have no constitutional basis as a matter of law.

1. Ineffective Assistance of Trial

Counsel

The inquiry first turns to the issue of the alleged

ineffectiveness of William Rothstein. Martinez-Villareal's

present counsel asserts that Rothstein's representation was

defective at the guilt-innocence phase of the trial (Claim 4.1);

the sentencing phase of the trial (Claim 4.2); and the appeal

phase (Claim 4.3).

b. Penalty Phase (Claim 4.2)

Martinez-Villareal contends that Rothstein's

representation at sentencing was constitutionally defective

and but for that representation, he would not have been given

a sentence of death. A capital sentencing proceeding is

sufficiently adversarial so that like a trial, counsel's conduct

must be reasonably effective in order that the sentence

imposed produce a just result. Strickland, 466 U.S. at 686-

87, 104 S.Ct. 15 2064. Incompetent counsel's failure to

present significant mitigating evidence creates a one-sided,

non-adversarial sentencing hearing which in turn erodes

confidence in the outcome of the case. See Ivan K. Fong,

Ineffective Assistance of Counsel at Capital Sentencing, 39

Stan. L. Rev. 461, 485 (1984). The reviewing court must not

use the benefit of hindsight to challenge what might have been

under the circumstances "sound trial strategy." Strickland, 466

U.S. at 689, 104 S.Ct. at 2065. The reviewing court must also

apply a strong presumption that counsel's behavior fell within

A-2

the wide range of reasonable conduct. /d_ In determining

whether defense counsel engaged in a thorough investigation,

courts should look to whether counsel investigated the

defendant's background, education, employment record, mental

and emotional stability, family relationships and religious

beliefs. See, e.g., Gary Goodpaster, The Trial for Life: Effective

Assistance of Counsel in Death Penalty Cases, 58 N.Y.U. L.

Rev. 299, 323-25 (1983) (discussing investigations appropriate

to presenting a prima facie trial for life). With those standards

in mind, the Court finds that trial counsel's performance was

constitutionally defective at this critical stage of the

proceedings rendering the result of the sentencing hearing

unreliable and most likely, unfair. See, Lockhart v. Fretwell.

___US.__, 113 S.Ct. 838, 842, 122 L.Ed.2d 180 (1993).

The first evidence of ineffective representation begins

with the Presentence Report. On May 5, 1983, Rothstein

wrote the probation officer a one-page letter in order that

counsel's recommendations could be included in the

Presentence Report. The letter states in relevant part:

We know two people are dead, but we

really do not know what actually happened at

the Salero Ranch on that date. These people

cannot be brought back and obviously, under the

statute Ramon must be punished and it will be

punishment, pure and simple.

1 would recommend to your office and

will recommend to the Court on May 20, 1983,

that Ramon be given the maximum sentence for

the Aycock burglary, the maximum sentence for

the Bailey Burglary, life imprisonment without

the possibility of parole for twenty-five (25)

A-3

years, on each murder count and that they all

run concurrently.

Ramon is 38 years old, if you add 25

years on to this, he will be 63 years old when he

gets out and his life will, in fact, be over.

Petitioner's Amended Petition, Exhibit 4. This letter is

wholly inadequate as it does not present any mitigating

circumstances. Instead, through a single sentence Rothstein

attempts to plead for mercy by pointing out that Petitioner

will lose 25 years of his freedom if he is given a life sentence.

There is nothing in Rothstein's letter to "humanize" the

defendant, no discussion of his past family life, no showing

of cultural deprivation or lack of mental capacity.

Additionally, Rothstein did not prepare Martinez-

Villareal for the presentence interview and did not

accompany his client to interview. Based on Rothstein's

devastating experience with the suppression hearing and

Petitioner's confusion between the jurors and the audience,

this failure constituted egregious conduct. Fluent in spanish,

Rothstein's presence would have ensured that the information

given by the Defendant through an interpreter was accurate

and presented his client in the best light. It is not surprising

that the probation officer found no mitigating circumstances

and recommended the death penalty. While Rothstein's

conduct might initially be characterized as trial strategy, these

facts provide evidence that leaving Martinez- Villareal to face

the probation officer alone was certainly not sound legal

practice.

Trial counsel's only witness at the

mitigation/sentencing hearing was the probation officer.

Rothstein's examination was limited to trying to get the

A-4

probation officer to agree that petitioner's trial defenses

relating to duress constituted mitigation. There was no attack.

for instance, on the prejudicial statements made by Lt.

Bracamonte found in the Report. This also cannot be

dismissed as permissible trial strategy, when the sentencing

hearing is viewed in its totality.

Other significant factors of deficient conduct are

apparent. Rothstein did not offer evidence respecting

Martinez-Villareal’s good behavior while awaiting trial. See,

e.g., Skipper v. South Carolina, 476 U.S. 1, 8, 106 S.Ct.

1669, 1672-73, 90 L.Ed.2d 1 (1986). Rothstein was also

ineffective by not anticipating that the sentencing court would

find the obvious aggravating factor of “pecuniary gain." The

victims’ truck was driven from the scene and found in the

desert with Martinez-Villareal's fingerprints on the wheel.

Arizona is a mandatory death penalty state. That is, if

there is any one aggravating factor found under A.R.S. § 13-

703(F), then death is mandatory unless the mitigating factors

outweigh the aggravating factors. Trial counsel raised no

mitigating factors, other than arguing a plea for mercy and re-

arguing the right to a second degree murder instruction, an

instruction which had been previously rejected by the judge.

By not presenting obvious mitigating factors, the sentencing

court was left with no choice but to sentence Martinez-

Villareal to death.

he failed to investigate possible sources of such evidence.

Evidence presented at Martinez-Villareal's habeas hearing

and available at the time of sentencing indicates that if

Rothstein had investigated Martinez-Villareal's family and

psychological background, he could have presented

A-5

numerous character witnesses along with a history of

psychological disturbance.

Specifically, Rothstein never presented any mitigating

evidence regarding Martinez-Villareal's cultural deprivation

and primitive upbringing in an impoverished, isolated rural

area of Mexico.' Present counsel presents the affidavits of

Guadalupe Martinez- Villareal and Isidro Martinez- Villareal,

Petitioner's sister and brother. This affidavit establishes that

Rothstein never contacted them and yet, present counsel was

able to do so almost eleven years later. See, Supplement to

Amended Petition, December 27, 1993. Thus, the family was

denied the opportunity to be present and to testify on their

brother’ s behalf. Rothstein's decision to forego this

investigation and avail himself of this helpful testimony was

not reasonable.

Additionally, Petitioner's family members could have

testified as to his history of mental problems. Dr. Geffen was

able to discern that: (1) Martinez-Villareal was not allowed to

go to school because he was mentally ill; (2) Petitioner's

father did not believe in mental treatment, but his uncle took

him to a psychologist in Chihuahua, Mexico who told the

family that Martinez-Villareal was mentally ill; and (2)

Petitioner has had auditory and visual hallucinations since his

youth.

The sentencing hearing was trial counsel's opportunity

to show that Martinez-Villareal was worth saving as a human

being through the testimony of family members who loved

' The Court notes that the presentence report contains some

information on Petitioner's family background and lack of

education. This does not substitute for an attorneys’ duty to

advocate for his client.

A-6

him. See, e.g, Mak v. Blodgett, 970 F.2d 614, 619 (9th Cir.

1992), cert. denied, U.S. _ _, 113 S.Ct. 1363 (1993).

The sentencer must not be precluded from giving

individualized consideration to any relevant mitigation aspect

of the defendant's character or record. Lockett v. Ohio, 438

U.S. 586, 604, 98 S.Ct. 2954, 2964-65, 57 L.Ed.2d 973

(1978). The sentencer, however, can only evaluate this

information if the defendant presents it. Ivan K. Fong,

Ineffective Assistance of Counsel at Capital Sentencing, 39

Stan. L. Rev. 461, 485 (1984). The Court finds that there is a

reasonable probability that had the sentencing judge had the

benefit of this testimony, Martinez-Villareal would have been

given a life sentence.

The most glaring and prejudicia! error concerns

Rothstein's failure to have Martinez-Villareal's mental health

investigated. Arizona recognizes mental incapacity is a

mitigating factor when:

[t]he defendant's capacity to appreciate

the wrongfulness of his conduct or to conform

his conduct to the requirements of law was

significantly impaired, but not so impaired to

constitute a defense to prosecution.

A.R.S. § 13-703(G)(1). Rothstein testified at the

habeas hearing that he was familiar with the procedure for

obtaining a mental health evaluation, R.T. of June 23, 1994 at

20, but did not know that it could be used as part of a defense

strategy. /d. at 2. Rothstein testified that throughout the

years of his representation, Martinez-Villareal exhibited

symptoms of mental illness and did not appear to

comprehend what was going on. For example, Martinez-

Villareal was fixated on getting his boots back which had

been confiscated by police. Corroborating this fact is Lt.

A-7

Bracamonte's statements in the Presentence Report and

Petitioner's statement at sentencing. Indeed, according to

Rothstein, immediately after receiving a sentence of death

Martinez- Villareal asked him, "Well, do I get my boots

back?" R.T. of June 23, 1994 at 6. Rothstein testified, "After

he was sentenced to death, he asked about his boots. |

remember that. I'll never forget that as long as I live." /d. at

19.

Rothstein also testified, "I do remember something

about voices or him seeing somebody that wasn't there, but |

don't remember exactly what i[t] was, you know, maybe a

family member or somebody, something with voices, but I

don't recall specifically what it was." /d. at 18. Yet, Rothstein

did not seek to have his client evaluated.

Dr. Garcia-Bufiuel testified at the habeas hearing as to

his conclusions regarding Martinez-Villareal's mental health.

Dr. Garcia-Bufiuel is the Director of Correctional Psychiatry

for the Maricopa County Sheriff's Office through the

Maricopa County Health Department. He has had twenty-

one years of dealing with psychiatric issues involving

inmates. He has done over a thousand competency

examinations similar to the one requested of him in this case.

Additionally, Dr. Garcia-Bufiuel is a Spaniard who was able

to conduct his examination of the Petitioner without the need

of an interpreter.

> There was also testimony that within a few hours of

execution, Martinez- Villareal was more concerned with

getting a broken television repaired than he was of his own

imminent death. As this event occurred subsequent to the

sentencing hearing, it was not considered in reaching today's

decision.

A-8

From his evaluation of Petitioner, Dr. Garcia-Bufiuel

discerned the following: Martinez-Villareal was born in an

“ejido" in the State of Chihuahua and grew up as a peasant.

He was told that he was "loco" by his parents, because he

would get mad and hit his head against rocks and walls.

Corroborating this fact are the visible scars on his forehead

both below and above the hairline.

Dr. Garcia-Bufiuel also discovered that Petitioner has

heard voices since he was a "chiquito." Petitioner was

hospitalized in Chihuahua for about a year where according

to Petitioner, an older psychiatrist prescribed medication to

get rid of the voices but that it was not effective.

Petitioner his tried to kill himself by slicing his left

forearm. Dr. Garcia-Bufiuel observed three longitudinal scars

in Petitioner's left forearm and opines that people who make

faint suicide attempts, slice their veins at the wrist.

Longitudinal "slicing" along the veins/arteries as found on

Petitioner's arm are serious, lethal suicide attempts.

It is Dr. Garcia-Bufiuel's professional opinion that

Martinez- Villareal suffers from paranoid schizophrenia and

has suffered from this malady since adolescence. Thus, Dr.

Garcia-Bufiuel concludes that it is reasonable to assume that

at the time of the murders, trial and sentencing, Martinez-

Villareal was suffering from this illness. What is significant

about Dr. Garcia-Bufiuel's findings is that with reasonable

investigation and a subsequent psychological evaluation, the

above information would have also been available to

Rothstein to present at the mitigation hearing.

The State's medical experts at the habeas hearing

disagreed with Dr. Garcia-Bufiuel's conclusions. Instead,

they found Petitioner to be malingering and presently

A-9

mentally competent. Drs. Gopalan and Brim reach this

conclusion based on their impressions of Martinez-Villareal

from their contact with him during the course of treatment,

from a review of Petitioner's mental health records and from

conversations with other DOC personnel.

Dr. Gopalan, a consulting psychiatrist with the DOC,

has treated Martinez- Villareal longer than any other DOC

doctor. Dr. Gopalan testified that it is his professional

opinion that despite showing psychotic symptoms for the past

six years, Martinez-Villareal is not schizophrenic. Instead,

Dr. Gopalan characterized Martinez-Villareal's aberrant

behavior as "culturally-deprived, sensorial-deprived

presentations." R.T. June 23, 1994 at 30. In response to

whether Petitioner's demeanor at the habeas hearing was

evidence of a catatonic type of schizophrenia, Dr. Gopalan

stated:

"it doesn't rule it in or rule it out. | mean,

he's just sitting there with his eyes closed with

very little affect shown, which should be

consistent with a schizophrenic and a catatonic

schizophrenic but would also be consistent with

several other conditions, too.

** *

He can be very depressed, not interested

in what's going on. He could be not

understanding what is going on, or he could be

feigning.

Id. at 36. Dr. Gopalan conceded that Martinez-Villareal's

lack of sophistication casts "some doubt" on a diagnosis of

malingering. /d.

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Petitioner's medical records reflect that Dr. Gopalan

first saw Martinez-Villareal July 24, 1986 when Petitioner

reported hearing voices. Exhibit 2B at 247. Dr. Gopalan was

not sure whether Petitioner was experiencing auditory

hallucinations and wrote in the file "beginning stages of

schizophrenic form disorder." /d. Martinez-Villareal was

prescribed Navane and Artane and stated that he felt better

and heard no voices. R.T. June 23, 1994 at 50. Artane is

given to control the side effects of the Navane and has no

bearing on whether a person hears voices. Jd. Dr. Gopalan

testified that he believed Martinez-Villareal wanted Artane

either for its euphoric effect or to give to other inmates and

not for the control of any hallucinations.

Dr. Gopalan's diagnosis of malingering is based, in

part, on an April, 1990 blood test that showed Martinez-

Villareal was not taking the Navane. However, the medical

records reflect that on May 14 and 15, 1990, Martinez-

Villareal was refusing both the Navane and the Artane. On

June 26, 1990, the medical records reflect:

[Martinez-Villareal] was complaining of

auditory and visual hallucinations, hears his

name called and sees snakes, has thoughts of

cutting himself, verbal contact obtained to not

harm himself. . .

Exhibit 2B at 300. At the time, Dr. Gopalan questioned

whether this "decompensation" was manipulative because

Martinez-Villareal had not been taking his Navane with no

complaints. Nonetheless, Dr. Gopalan prescribed Navane but

with Cogentin, a drug which does not provide the euphoric

effect found in Artane. Subsequent periodic blood tests

established that Martinez- Villareal was taking his medication

since the Navane levels in his blood were within a therapeutic

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range. This course of treatment continued until Martinez-

Villareal complained that he felt the medication was no

longer effective. He was then prescribed Prolixin-D which is

an antipsychotic drug administered intravenously. Dr. Brim

discontinued Prolixin-D in November, 1993, based on his

opinion that the treatment was of no benefit to Martinez-

Villareal. Exhibit 2B at 358. At that same time, the medical

records reflect that Dr. Brim characterized Petitioner's

behavior as "factitious mental disorder." /d. At the habeas

hearing, however, Dr. Brim characterized that that diagnosis

as a "slip of the pen." R.T. June 23, 1994 at 203. Dr. Brim

testified that he should have written "malingering” rather than

"factitious mental disorder." /d.

While the State's experts and medical records raise

questions of whether Martinez- Villareal is feigning his

present mental state, it is not conclusive either way as to

whether Martinez-Villareal was incompetent at sentencing.

His medical records do establish that the treating DOC

psychiatrists felt at one time that it was medically appropriate

to prescribe Martinez-Villareal antipsychotic drugs.

The Court is well aware that Petitioner's statements to

Dr. Garcia-Bufiuel could be considered self-serving under

normal conditions. It was Dr. Garcia-Bufiuel's professional

opinion, however, that Martinez-Villareal was being truthful

and was not feigning his mental state. According to Dr.

Garcia-Bufiuel a diagnosis of schizophrenia does not mean

that Martinez-Villareal was unaware of the significance of the

murders. As discussed previously, that retroactive

determination cannot be made. Dr. Garcia-Bufiuel was a

credible witness with his testimony and conclusions

persuasive. Thus, it is this Court's finding that Dr. Garcia-

Bufiuel's testimony undermines the reliability and fairness of

Martinez-Villareal's mitigation hearing. The proper course of

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conduct at sentencing should have been to have all of this

information available for the sentencing court's consideration.

Of course, it is acceptable trial strategy to choose not

to call psychiatrists at sentencing where the experts would be

subjected to cross-examination based on equally persuasive

psychiatric opinions that reach a different conclusion. Harris

v. Vasquez, 949 F.2d 1497, 1525 (9th Cir. 1990). In this case,

however, Rothstein made no inquiry into Martinez-Villareal's

sanity and thus, no tactical evaluation occurred. No risk

would have been incurred by presenting evidence of

Petitioner's mental capacity. There is no evidence that

Rothstein committed these acts as part of a scheme to build in

constitutional error. Instead, trial counsel's failure to

investigate was a mistake, not a strategic decision. See

Ronnie Seidel, Criminal Procedure--Right to Effective

Assistance of Counsel at Capital Sentencing -- Frey v.

Fulcomer, 974 F.2d 348 (3d Cir. 1992, cert. denied. 113 S.Ct.

1368 (1993), 66 Temp. L. Rev. 1107 (1993). Thus, absent

tactical purpose or risk, failure to investigate the defendant's

mental state and request a Rule 11 evaluation was ineffective

assistance of counsel within the meaning of Strickland Mak

v. Blodgett, 970 F.2d at 619.

Rothstein admitted at the habeas hearing that if he had

presented evidence of Martinez-Villareal's mental problems,

it would have made a difference:

... | messed up. I mean I did, you

know, and I feel bad about it, and I have for all

these years. Because if I had done that and

presented -- done more at the sentencing, then |

think maybe he would have given him -- he

would have probably given him consecutive

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terms but he wouldn't have given him the death

penalty. That's just my opinion. That's all.

Id. at 11.

At sentencing, Rothstein essentially abandoned his

role as Martinez-Villareal's advocate. The errors and

omissions of Rothstein contributed to Martinez- Villareal

receiving a death sentence. Taking into consideration any

evidence the State might have conceivably produced in

rebuttal, the Court is convinced that there is a reasonable

probability that, but for Rothstein's errors and omissions, the

result of the sentencing outcome would have been different.

Evans v. Lewis, 855 F.2d 631, 637 (9th Cir. 1988); Strickland

v. Washington, 104 S.Ct. at 2068. Martinez-Villareal has met

both prongs of the Strickland test. The Court concludes that

the writ must be granted insofar as the penalty phase of death

is concerned.3

* Had Rothstein stepped aside and allowed new counsel to

assert this challenge at the first state post-conviction

proceeding, Martinez- Villareal might have received a new

sentencing hearing eight years ago. In capital cases, allowing

the trial attorney to represent the defendant at all stages of the

litigation especially where mental capacity is in doubt

frustrates the legal process and hinders justice.

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IN THE SUPREME COURT

Real Party in Interest.

STATE OF ARIZONA

RAMON MARTINEZ- )

VILLAREAL, )

) No. CV 97-0206-SA

Petitioner, )

)

vs. ) PINAL County

) Superior Court

PINAL COUNTY SUPERIOR ) No. CR970-22291

COURT, HONORALBE BOYD )

T. JOHNSON, JUDGE OF THE ) ORDER

SUPERIOR COURT OF THE )

STATE OF ARIZONA, in and for )

the County of Pinal, )

)

Respondents. )

)

)

STATE OF ARIZONA, )

)

)

)

Petitioner has filed a request for special action relief

from the Order of the Superior Court dated May 9, 1997 on

the matter of the Petitioner's competency to be executed

pursuant to the conviction and death sentence heretofore

imposed upon him. The petition has been addressed by the

full court.

Having considered the briefs filed on behalf of the

Petitioner and the office of the Attorney General, the

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arguments and authorities cited therein, the full transcript of

the Superior Court proceedings to determine competency

held April 7, May 6, May 7, and May 8, 1997, and having

independently reviewed the testimony and medical evidence

introduced at the hearing, and in light of the findings of the

trial court, this court concludes that the trial judge correctly

found that Petitioner failed to prove incompetency by clear

and convincing evidence or even by the lesser standard

requiring proof by a preponderance of the evidence.

IT IS THEREFORE ORDERED accepting

jurisdiction of the special action petition herein.

IT IS FURTHER ORDERED denying the relief

requested by Petitioner.

IT IS FURTHER ORDERED denying Petitioner's

request for stay of execution.

DATED this 16" day of May, 1997.

/s/

CHARLES E. JONES

Vice Chief Justice

Separate statement by Chief Justice Zlaket and Justice

Feldman:

We join in the Court's order accepting jurisdiction and

denying relief. Defendant has not carried the difficult burden

of proving by clear and convincing evidence that he is

incompetent to be executed. The definition of incompetence

for that purpose is quite narrow. However, the evidence

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makes it clear that Defendant is mildly retarded and seriously

mentally ill. He may well have been in that condition at the

time of the crime. At the mitigation hearing, his lawyer did

not present evidence of his mental condition or problems. In

subsequent federal habeas corpus proceedings, the district

judge concluded that the failure to present such evidence was

ineffective assistance of counsel. This finding was reversed

by the Ninth Circuit Court of Appeals, not because it was

erroneous but, the court said, because the issue was precluded

because the same lawyer who performed ineffectively failed

to raise his own lack of effective representation as a ground

for relief.

In short, this is a case that raises serious doubts about

the propriety of the death sentence. For that reason, we

commend this matter to review by the Board of Executive

Clemency and to commutation by the Governor to

imprisonment for life, consecutive to all other terms imposed.

We suggest also that the Board and the Governor consider the

comments of the district judge who presided at the federal

habeas corpus proceedings. A copy of his May 16, 1997

order is attached.

_/s/

THOMAS A. ZLAKET, Chief Justice

—/s/_

STANLEY G. FELDMAN, Justice

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