# Amicus Curiae Brief — Stewart v. Martinez-Villareal

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1998
- **Citation:** 523 U.S. 637

## Text

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.

A-10

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

A-11

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

A-12

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

A-13

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.

A-14

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

B-!

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

B-2

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

B-3

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0115%3A16. Public record. Not legal advice.