A death row inmate in Missouri is struggling to change his lawyers just hours before he is set to be executed, in a last-ditch effort to persuade the US supreme court to postpone the judicial killing on grounds that his previous attorneys were incompetent.
In a highly unusual 11th-hour exchange of briefs before the nation’s highest court, Mark Christeson, 35, has presented documents to the justices that suggest he wants to take on new legal representation and ditch his previous lawyers. The state of Missouri is resisting the move.
If the attempt fails, Christeson will almost certainly be put to death by lethal injection at one minute past midnight in one of two executions scheduled to take place in the US on Tuesday night. He was put on death row for the January 1998 murders of Susan Brouk, 36, her daughter, Adrian, 12, and her son, Kyle, nine. He was 18 at the time of the crimes.
In its final hours and minutes, the case is coming down to claims that Christeson was grossly let down and abandoned by his existing court-appointed lawyers who have represented him since 2004. Legal documents lodged with state and federal courts show that the two Missouri-based lawyers, Eric Butts and Philip Horwitz, failed to meet a crucial deadline for filing a petition that would have secured Christeson a federal review of his conviction.
As a result, Christeson was denied the review – and with it his final substantive hope of avoiding death – on grounds that his request had been “untimely”.
In recent days, 15 former federal and state judges have submitted a joint brief organised by the Constitution Project in which they say that Butts and Horwitz were “not up to the task before them” and accuse the lawyers of “apparent abandonment and misconduct”.
Horwitz and Butts have yet to respond to specific questions from the Guardian. Horwitz said that he was unable to answer as the case was still in litigation.
The record shows that Christeson has been trying to switch his legal representation from Butts and Horwitz to two new out-of-state lawyers, Joseph Perkovich and Jennifer Merrigan, who have been advising him on the case. But so far all courts that have dealt with the case have refused to allow Perkovich and Merrigan to officially take over as Christeson’s counsel.
As a result, Christeson has been left in a state of apparent legal limbo in which he is still represented by lawyers who allegedly failed him at a crucial stage in his case, setting up a conflict of interest in which all parties are trapped. In their submission the former judges wrote that “Cases, including this one are falling through the cracks of the system.”
On Tuesday morning Justice Samuel Alito of the US supreme court ordered both sides in the case to present briefs regarding whether or not Merrigan and Perkovich should be allowed to step in at this late stage as Christeson’s official lawyers. In their brief, Merrigan and Perkovich reproduce a letter typed for Christeson in prison by a fellow inmate in June.
In it Christeson related how his existing lawyers, Horowitz and Butt, apparently tried to persuade him that the new lawyers “did not have my best interest in mind and that I would be better off with attorneys from Missouri”.
But Christeson went on to say, “I respectfully disagree. I personally feel that attorneys Joe Perkovich and Jennifer Merrigan should be allowed to represent me. I truly believe that they do have my best interest in mind and more so then [sic] Horowitz and Butts.”
In another hand-written letter to Merrigan he said: “I really believe you and Joe were meant to represent me.”
In its brief, the state argues that there is no evidence that Christeson wishes to change lawyers. No retention letter authorising the appointment of the out-of-state attorneys had been put into the record.
Unless the supreme court allows the change of lawyers to go ahead, Christeson will have no chance of arguing before the justices that his incompetent legal representation denied him the right to a federal review. And without that, his chances of avoiding lethal injection are minutely slim.
