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Bar News - April 20, 2016


NH Appoints First-Ever Death Penalty Post-Conviction Defense

By:

Michael Wiseman

Michael Wiseman, a solo attorney from Swarthmore, Pennsylvania, has been selected by the New Hampshire Judicial Council for appointment to represent death row inmate Michael Addison in post-conviction proceedings in both state and federal courts.

Wiseman, the former chief of the Philadelphia-based Capital Habeas Corpus Unit for the federal defender office in Pennsylvania, has more than two decades of experience in representing post-conviction capital defendants, a specialized area of law that has never existed in New Hampshire, where Addison is the first death row inmate in more than 75 years.

Reached by telephone last month, Wiseman called the representation he is about to undertake “a very, very labor-intensive and resource-intensive endeavor.”

“In any post-conviction case, it’s the obligation of the post-conviction lawyer to review the entire record and conduct reasonable reinvestigation of the case,” he said.

On Jan. 11, 2016, when the US Supreme Court denied the petition for certiorari in Addison’s direct appeal, the clock started ticking on the one-year statute of limitations for filing a federal habeas corpus petition in the US District Court for the District of New Hampshire. Before the federal filing, however, Wiseman, with the assistance of local counsel, plans to file a state habeas corpus petition in NH Superior Court, which will toll the statute of limitations. Wiseman has enlisted former NH Federal Defender Behzad Mirhashem, now a professor at UNH Law, as local counsel; second-chair counsel has not yet been named.

There is no money allocated for Addison’s post-conviction defense in the current state budget, but based on similar litigation in other states, it could cost upwards of $500,000, according to Chris Keating, the outgoing executive director of the NH Judicial Council.

“When I talked with people who have done this work in other jurisdictions, their estimates to me are that this could run between $250,000 and $500,000 by the time it’s all over,” Keating said. “The trial court will be responsible for deciding the scope and scale of ancillary resources that are available for this case... and the Judicial Council will have to closely watch this litigation, so we can anticipate what these expenditures will be.”

“We’ll have to go back and request additional funds, depending on what the court approves for additional resources, and on the invoices submitted by counsel,” Keating adds.

The fee for post-conviction counsel in a capital case is currently set at $100 per hour by NH Supreme Court Rule. Wiseman has asked for a status conference with the state court judge who will preside over the case, to discuss resource issues and, he hopes, to get some kind of upfront agreement about the costs of the litigation and establish a payment schedule.

As those details are still being ironed out, Wiseman has entered a conditional appearance on Addison’s behalf and hopes to be admitted pro hac vice to practice in New Hampshire, once he is officially appointed to the case.

The most common claim in post-conviction capital litigation is ineffective assistance of counsel. Wiseman and his team will be scouring the record in the Addison cases – a record that fills about 100 banker’s boxes and includes the capital murder trial and the trials on other felony charges that preceded the fatal shooting of Manchester police officer Michael Briggs on Oct. 16, 2006. They’ll be looking for legal issues or procedural matters related to either the guilt or penalty phase verdicts, that Addison’s previous defense attorneys, David Rothstein and Richard Guerriero, overlooked.

“Obviously, it’s a very sensitive subject when you go and see a lawyer and say, ‘Oh, you may have messed something up,’” he says. “Usually you go with some very specific questions and issues that you’re investigating.”

Wiseman explains that, because claims not raised during the initial trial are waived, and post-conviction counsel can’t present previously litigated claims, the ineffective assistance of counsel claim acts as a procedural mechanism by which post-conviction counsel can bring claims before the court. Making clear that he had no sense yet of what issues might exist in Addison’s case, he added that so-called Brady claims, which involve allegations that the prosecution improperly suppressed exculpatory evidence, or that due process was otherwise violated, are often raised in post-conviction litigation.

“Even good criminal lawyers who don’t practice in this area would have a very difficult time knowing what to look for and where to look for it,” says Wiseman.

Any claims that the defendant’s federal constitutional rights were violated must first be presented in the state habeas corpus petition, he explains, to give the state court “first crack” at them, also known as “exhausting the claim.”

If the claims are unsuccessful in state court, post-conviction counsel can still file a habeas corpus petition in federal court, provided there’s still time under the statute of limitations.

“From the moment I’ve been involved in this litigation, I’ve been stressing to everyone involved that time is of the essence, and I guess we’ll do the best we can in the time we have allotted,” Wiseman said. “I am stressed about it. Even a year is not a lot of time.”

That statute of limitations was introduced in 1996 under the federal Antiterrorism and Effective Death Penalty Act, in the wake of Oklahoma City bombings. Wiseman describes it as “a hastily drafted statute that even many judges have described as a nightmare in terms of the way it was put together.”

“We’re still litigating what sections of it mean even 20 years later,” he says.

Asked to describe the most shocking aspect of capital litigation to the uninitiated, Wiseman said: “The thing that’s most shocking, I think, to people who look at death penalty cases for the first time... is the way the system is so skewed against having issues heard on the merits… Merits review is more limited than it was before AEDPA.”

Wiseman further explained that prior to AEDPA, relief was available to a prisoner who demonstrated a federal constitutional violation. Now, relief is not permitted unless the state court ruling on the constitutional claim was an unreasonable application of United States Supreme Court precedent. “It is no longer sufficient that the state court is wrong; it has to be ‘unreasonable’ in being wrong,” he said.

Wiseman says he’s personally opposed to the death penalty and believes that, even for those who support the death penalty, it is not worth the cost. More than 100 death sentences have been reversed in Pennsylvania, “an extraordinary waste of money,” he says. “Even if you believe in the death penalty, there are not many executions, so you’re not really getting what you pay for.”

The challenge and importance of representing death row inmates in post-conviction proceedings drives Wiseman to continue taking these cases in various states. He says he also enjoys the opportunity to present to the court the other side of the story – the troubled lives and past problems that often contribute to the murders involved in these cases.

Wiseman was one of two attorneys who applied to be post-conviction counsel for Addison. The other attorney was from Ohio and had significantly less experience representing death row inmates, according to documents on file at the NH Judicial Council.

Supreme Court Rule 42(9) requires all NH admitted attorneys to notify the Bar Association of any address change, home or office.

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