Joseph Gamboa, marked for execution in Texas, is petitioning the U.S. Supreme Court to save his life. His argument is that a court-appointed lawyer was so inept that he killed his chance to challenge his murder conviction in federal court. The Supreme Court is will examine this week whether justice was done in Gamboa’s case even though his attorney made one botch after another. Indeed, he could hardly have done worse if he had the Ghostbusters’ lawyer (Rick Moranis) from “Ghostbusters 2.”
Gamboa was convicted and sentenced to death in 2007 for two murders during a robbery, but he swears that he is innocent. His court-appointed lawyer, John J. Ritenour Jr., met with Gamboa only once, the condemned man argues in his SCOTUS brief, then filed a habeas petition. At that single meeting, Gamboa says he brought documents that indicated prosecutors withheld potentially exculpatory evidence (a Brady violation!) that another man had committed the killings. Ritenour did not take the documents, Gamboa’s brief says. In a sworn statement, Gamboa stated that “Mr. Ritenour told me that he had read the state court record in my case and believed I was guilty.”
It took Ritenour almost a year to filed the habeus corpus petition, and it was a hack job. The petition was cut-and-pasted from an earlier one for another client, even repeating the same typos and grammatical errors. It even featured the name of the other client, Obie Weather, where the lawyer hadn’t quite finished proof-reading. Nor was the document signed by Gamboa, a requirement. Gamboa says that the petition did not include any of the arguments they had discussed…understandable, since the document was basically copied from a different case.
After the petition was opposed by the state, Ritenour filed a reply brief stating, “After considerable review and reflection, petitioner concedes that his argument regarding each of his claims has been foreclosed under currently existing, adversely decided, precedent.” This kind of capitulation is not exactly in the legal tradition of zealous representation.
There is little controversy over the caliber of legal representation Gamboa recieved: lousy. The question before the Supreme Court is whether incompetent representation mandates a new trial. The Supreme Court brief filed by Texas attorney general Ken Paxton argues that a client must “bear the cost of his federal attorney’s negligence,” which is the general rule. But had Gamboa’s attorney lawyer filed nothing at all, a new trial with a different lawyer would have would probably have been the result. In 2010 and 2012, the Supreme Court allowed death row inmates whose lawyers had missed deadlines entirely to pursue attempts to file belated petitions.
For his part, Ritenour seems to acknowledge that he blew it. In a sworn statement in 2016, he stated,
“I did not consult with Mr. Gamboa concerning the issues I did and did not include in the petition, nor about the contents of the reply brief. Because I could find no nonfrivolous way to raise issues potentially requiring evidentiary support, I made another judgment call not to involve a second attorney, or to engage an investigator or other expert. Again, I understand others can and may take issue with that judgment call.”
As an aside, this is why I abandoned my original career goal of being a prosecutor. The likes of O.J. Simpson get a “dream team,” and nobodies like Joseph Gamboa get represented by someone from the grab-bag of court appointed lawyers. They might be good, dedicated and motivated lawyers on their way up the professional ladder, or they might be like this bozo. The difference between life and death lies in the balance. I don’t know how to fix the problem, but it is one I didn’t want to spend a lifetime fighting.
The records show that Ritenour had to deal with personal problems while he was sort of representing Gamboa, including being hospitalized himself and and caring for a wife who was battling cancer. In that sworn statement, the lawyer conceded that not hiring an investigator, not finding expert witnesses and not handing the case off to more able lawyers violated “the standards for federal habeas counsel in a death penalty case.”
But a prisoner of death row, as Justice Kagan wrote in 2020 for seven members of the Supreme Court, only gets “one fair opportunity to seek federal habeas relief from his conviction.” The new lawyers representing Gamboa asked for permission to file another petition due to the fiasco of the first one, but were turned down by the trial judge and an appeals court.
“Troubling though Gamboa’s allegations of attorney abandonment may be,” a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit wrote in an unsigned opinion, Ritenour’s ineptitude wasted his client’s sole “bite of the apple” in federal court.
Based on what appear to be the facts of the case, it certainly appears that Gamboa’s sole “bite” was rotten and wormy through no fault of his own. As Gamboa’s current lawyers argue in their brief, “In the United States life should not be so cheap that a man may be executed because his court-appointed attorney abandoned him.”
AG Paxton, meanwhile, asserts in his brief that Ritenour “continuously and ably represented Gamboa.”
Riiiiight.
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Source: New York Times
Ethics Alarms 
I always wondered if we had an attorney system sort of like an episcopal system. What if all attorneys were required to be in the ‘attorney grab bag’? If the state wanted to prosecute someone, they got them from the ‘attorney grab bag’ (random) and the defendant was assigned an attorney from the ‘attorney grab bag’. In lawsuits as well, attorneys would be assigned from the ‘attorney grab bag’. In this system, it would be strictly forbidden for anyone to act as legal counsel outside the ‘attorney grab bag’ system.
I wonder how many complaints against wealthy corporations would be settled quickly because they couldn’t count on expensive, accomplished attorneys to represent them? In this system, criminal cases (both sides) would be paid for by the state (equal funding for each) and on the civil side, a flat fee would be paid by each party. It might be disastrous, but it would be much fairer than the current system.
Now, where we really need a system like this is in drug approval. Instead of drug companies hiring a team to do a clinical trial, the drug companies need to pay the FDA a flat fee for the clinical trial and the trial be given to the next group on the list. Since the clinical trial is paid by the FDA, not the drug company, there isn’t as much of a conflict of interest requiring a positive outcome for the drug trial. Eligible research groups should be able to add themselves to the list and be put in the rotation. The order of rotation should be alphabetical based on the last name of the PI (to minimize gaming of the system).
“But a prisoner of death row, as Justice Kagan wrote in 2020 for seven members of the Supreme Court, only gets “one fair opportunity to seek federal habeas relief from his conviction.””
If Justice Kagan’s statement is true, then what is the legal definition of “one fair opportunity”? Given the principle duty of the trial and lower appellate courts concerns the impartial function of the court to fully and fairly adjudge cases (one “fair” bite at the apple), then actual “findings” of attorney abandonment of the kind describe above demonstrates the Supreme’s should uphold the rule of law as to the constitutional rights of Joseph Gamboa and afford the man (whose life is set to end without any true fair opportunity) a new trial. If he is guilty or innocent, as the trial record demonstrates that no one is actually certain about, then let a new trial make such a determination.
Is the United States Federal Judicial System so exacting and in a hurry that a life can end with so much uncertainty, turmoil, or even a full and fair day in Court?
I am reminded of having read about (and written about) Shinn v. Ramirez from a year and a half ago, and the Troy Davis case from a dozen or so years before that. When the latter reached SCOTUS, Justice Scalia argued that “actual innocence” (his term, his quotation marks) was insufficient reason to overturn a death sentence.
There’s a considerable rift between the law and justice; especially when a flagitious ass like Ken Paxton gets involved.
Though in the case at hand (Gamboa), (and I have not read the Troy Davis record), the Question Presented is not asking to overturn a death sentence but “Whether a Rule 30(b) motion alleging attorney abandonment must always be recharacterized as a second or successive habeas petition under Gonzalez v. Crosby, 545 U.S. 524 ((2005).”
In reading the BRIEF OR HABEAS LAW SCHOLARS AS AMICI CURIAE SUPPORTING PETITIONER (GAMBOA), I am persuaded Joseph Gamboa is entitled to a SCOTUS decision that affords him fair due process on the grounds of attorney abandonment.
It will be interesting to see how this Supreme Court will rule on this issue. Disclosure: I have a somewhat arms-length dog in the fight on this one, so I am pulling for Mr. Gamboa.
As am I, Ian. Egregious facts, which also describe your case, are sometime hard for the system to handle.
“Actual innocence” is a legal issue that preceded Scalia by a long span. The issue can be summarized as that there had to be a legal reason to get someone a new trial or exonerated, and procedural requirements can foil factual reality: if you have used up your appeals, just being innocent might not be enough. This is where pardons come in handy. It’s always been a weird and frustrating area for me….another law vs ethics problem.
I very much appreciate this explanation. I have a very difficult time believing that a person wrongly convicted of a crime actually runs out of opportunities to prove innocence. But I can see how the system would get bogged down with endless appeals, most of them coming from those who are truly guilty. I’m thankful for the possibility of the pardon when it’s necessary.
I have much respect for Scalia’s mind and his time on the high Court, but how on God’s green earth is “actual innocence” NOT sufficient to overturn a death penalty? If there is exculpatory evidence for one convicted of a crime and sentenced, doesn’t it make sense to look at that evidence again?!?
Obviously, Scalia and Paxton and a host of other judges and AGs have never been wrongly accused and convicted of a crime. And I realize that the vast majority of cases are judged correctly and the right person is punished, but that’s small consolation for one not deserving of it.
Scalia’s was actually a minority opinion; the case was remanded to a lower court to investigate. They found the new evidence insufficiently exculpatory (the burden of proof had, quite reasonably, shifted), and Davis was executed. In Shinn, the evidence didn’t merely suggest that Barry Jones not only might be innocent, but that he was innocent. He was finally released after serving 29 years on death row. Here’s hoping that Gamboa fares as well, despite having to convince an incompetent AG.
Yes, but Scalia at least included a remedy for the situation, it is just that no one paid any attention to it. As Scalia pointed out, the Justice System is a system, a perfect bureaucracy. The legal system only hears appeals when the bureaucracy has broken down, not when the ‘wrong’ decision has been reached. His point was that executive pardons exist, partially, to fix such problems as ‘actual innocence’ but still found guilty without any process impropriety. If there is evidence that points to your guilt, a jury finds you guilty, but there is no new evidence, no evidence was suppressed or invented, no rights were violated, the justice system doesn’t deal with that. Scalia’s argument pointed to a need for an expanded pardoning system imho.
In the Davis case, seven of the nine witnesses against Davis not merely recanted their testimony but claimed they were coerced by police into testifying against Davis. I’d say there’s a significant chance of “impropriety” there. Scalia knew all this. He just didn’t care.
Can’t weigh in on the (complex) legal issues, but it just seems that 2007 was along time ago.