Utah Supreme Court hears legal sanctions arguments
By JENNIFER DOBNER
Associated Press Writer
Utah's Supreme Court will decide whether a pair of attorneys representing a death row inmate should be sanctioned for violating a legal rule in a post-conviction appeal filing.
The Utah Attorney General's Office has asked for the sanctions, claiming that about a third of the 120 claims made by defense attorneys Edward K. Brass and Lynn Donaldson on behalf of Michael Anthony Archuleta were already decided by an earlier appeal or not supported by either factual evidence or law.
Assistant Attorney General Thomas Brunker said the misstep — a violation of Rule 11 — was pointed out to Brass and Donaldson in January 2004, but the attorneys failed to correct it within the 21-day time period allowed.
Sanctions could range from monetary fines to disciplinary action by the Utah State Bar. Brunker said he withdrew a request for monetary sanctions and only wants a declaration from the court that Brass and Donaldson violated the rule.
"We want to get the playing field defined," he said.
Brass and attorney Richard Mauro, who represents Donaldson, deny any impropriety or unethical behavior and contend that they only sought to preserve every possible avenue of appeal for Archuleta.
The issue was argued before the Utah Supreme Court on appeal Thursday. A 4th District Court judge already held a daylong hearing and ruled that Brass and Donaldson made no deliberate attempt to deceive the court.
Brass said he thought justices should give deference to the 17-page opinion from Judge Donald J. Eyre, who found "there was no deception, there was no unethical behavior that he wasn't deceived and there wasn't an effort to deceive him."
Brass also said no lawyer should get a "pass" for unethical behavior, but hoped the court would consider a rule that prohibits seeking sanctions when cases are still pending. The effect is like shoving "a stick into our bicycle spokes," Brass said.
"What that does is put us automatically, in the middle of litigation, at odds with our client," he said.
After the hearing, Mauro said the state's actions against Brass and Donaldson are part of an effort to dissuade defense attorneys from taking death penalty appeals cases.
"This is a personal attack on lawyers who do this work," Mauro said. "That's what our big concern is with this filing. The state now is not attacking the message (the appeal). They're attacking the messenger and that is the lawyer."
Mauro said the state's case against Brass and Donaldson has prompted other attorneys to refuse to take other death penalty appeals out of fear they'll face similar allegations. That could leave some wrongly-convicted death row inmates without a chance for exoneration, he said.
"A lot of guys get relief on claims of actual innocence and on all kinds of issue in post conviction," Mauro said. "If you don't have competent lawyers that are doing that work, some of this information is never discovered and there's a risk that you execute an innocent person."
Brunker doesn't deny the Brass/Donaldson case addresses a larger concern about post-conviction appeals that typically include the filing of massive petitions.
"We want to use it to curb abusive litigation and filing of these mega petitions, he said. It's just slowing it down and we're trying to stop that. That is our motive."
From a practical standpoint, the state's Rule 11 complaint shouldn't delay Archuleta's appeal, Brunker said.
Donaldson and Brass no longer represent Archuleta, who was recently appointed a new attorney.
Archuleta has been on death row since 1989. He was convicted of the 1988 rape, torture and death of a southern Utah college student in the mountains near Cedar City.
One of Archuleta's original defense attorneys was Ronald Nehring, who is now an Associate Utah Supreme Court justice. Nehring recused himself from Thursday's hearing. Third District Judge Paul Maughan sat on the panel instead.