Convicted Sex Offender Raises Constitutional Issues on Lawyer Competency
After an Arizona sex offender is sentenced to two consecutive life terms, many are questioning the competency of the defendant's public defender.

December 11, 2011 /24-7PressRelease/ -- Convicted Sex Offender Raises Constitutional Issues on Lawyer Competency

In our legal system, an innocent person accused of a crime risks conviction and punishment without the advocacy of a skilled criminal defense lawyer.

Normally the U.S. Constitution guarantees a criminal defendant the right to an effective defense attorney at trial and on direct appeal. A "post-conviction proceeding" -- sometimes called a "collateral review" or "collateral attack" -- is a later proceeding distinct from the direct appeal.

Each state's law dictates which trial issues are to be considered in the direct appeal and which are the proper subject of a separate post-conviction proceeding. What if a state does not allow the issue of a defense attorney's competence at trial to be raised on the direct appeal of the conviction, but rather only in a collateral review?

Handling this issue in a collateral review makes sense, since usually the lawyer on the direct appeal is the same one whose competence at trial is in question. Because there is no right to effective counsel in a collateral attack, ironically, a defendant challenging his or her trial lawyer's inadequate representation would not be guaranteed competent counsel in bringing that attack.

Should the defendant have the right to effective counsel at that post-conviction proceeding to present the issue of competent assistance of counsel at trial? It is, after all, a constitutional right that is being raised, and the first opportunity to do so.

This important constitutional issue is pending before the U.S. Supreme Court in Martinez v. Ryan, argued October 4, 2011. An Arizona jury convicted Luis Mariano Martinez of two counts of sexual conduct with a minor under 15 for alleged sexual behavior with his stepdaughter. He was sentenced under Arizona law to two consecutive life terms with no possibility of parole for 35 years.

Questions have been raised about whether Martinez' public defender competently handled certain evidentiary issues at trial. Martinez was represented instead by a private attorney on direct appeal and in his first post-conviction proceeding, at which that lawyer did not raise the issue of effective assistance of counsel at trial. The defendant's convictions were affirmed in the direct appeal.

Martinez' case was then taken by an Arizona State University law professor with the Arizona Justice Project. This attorney raised in a second collateral attack the issue of adequate legal assistance at trial, and whether the second lawyer had been incompetent not to raise the trial attorney's competency issue in the first collateral attack.

The court said Martinez could not raise his trial lawyer's competence because Martinez had not raised it in the first collateral review. Martinez took the constitutional issue to the federal court system all the way to the Supreme Court.

The federal government and 24 states oppose Martinez' position. In the interest of finality, opponents raise the specter (and the expense) of ever-expanding layers of successive collateral reviews at which a defendant has the right to challenge his or her lawyer's competency at the previous collateral-attack level.

Criminal defense lawyers and prosecutors await the outcome of Martinez with keen interest. After all, the right to challenge the trial counsel competency is a matter of life or death in a capital case.

If you face a criminal charge, or have been convicted of a crime and are considering whether an appeal or collateral review is possible, seek the advice of an experienced criminal defense attorney immediately to preserve your rights.

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