Daniel Cook was scheduled to die by lethal execution last Tuesday morning in Florence for murdering two men in 1987. Cleve Foster was scheduled for execution that same evening in Huntsville, Texas, for a 2004 murder. But in the eleventh hour, the U.S. Supreme Court stayed the executions of both men.

The issue: how to address claims that their convictions and death sentences arose out of bad lawyering.

Arizona Death Row

Cook represented himself at trial and failed to bring up serious issues from his childhood that might have influenced his sentence. Foster's attorney at trial failed to engage an expert who might have tipped a jury toward acquittal. Then, the lawyers who handled their appeals failed to present those claims adequately.

Last Monday, the U.S. Supreme Court issued an opinion in the case of a California man whose appellate attorneys tried to introduce new evidence into federal court. The high court batted him down, ruling that evidentiary matters must be restricted to state courts where guilt and innocence are decided.

And three weeks ago, the high court accepted yet another related case in which an Alabama court denied appeals to a death-row inmate who missed a procedural deadline because notice was sent to the wrong address.

The Supreme Court takes only cases it feels will answer legal questions that face the nation as a whole. Its decisions then set legal precedent. As for Cook and Foster, the Supreme Court stayed their executions until it decides whether it will consider hearing those cases. Or they could be resolved by a decision in the Alabama case. After a death sentence is imposed, it goes automatically to a state Supreme Court for review, and if it is affirmed there, it goes directly to the U.S. Supreme Court in what is called a direct appeal. All other appeals are voluntary.

The next stop is back to the trial court for "post-conviction relief." In Arizona and 22 other states, this is the first point at which questions can be raised about whether the lawyer did everything he or she could have done to represent the client in trial.

There is a dearth of lawyers to represent defendants in the initial post-conviction procedures.

"Isn't a defendant entitled to a competent lawyer?" asked Michael Meehan, a Tucson lawyer representing Cook.

Perhaps not: The Sixth Amendment guarantees the right to competent counsel in trials, but there is no right to an attorney while seeking post-conviction relief.

The flurry of cases before the Supreme Court may answer Meehan's question.

In an opinion released Monday, the high court ruled that charges of inefficient assistance of counsel have to be presented in state court, and that federal courts could consider only the record established in state court.

The ruling involved the case of Scott Pinholster, who killed two people during a burglary in California in 1982. His appeal argued that his trial attorney had not presented mitigating evidence that might have swayed the court to give a lesser sentence. When state appeals courts refused to reconsider, his appellate attorneys went to federal court for an evidentiary hearing. The high court said no.

Now the high court appears to be considering inefficient assistance of counsel during the initial post-conviction stage by reviewing several cases:

- Cory Maples was sentenced to death in 1997 for murdering two men in Alabama, and his defense lawyers may not have presented adequate mitigating evidence to avoid a death penalty. But Maples never got a chance to make that argument. The state court sent notice to his attorneys at the law firm where they worked at the time of trial. But both had left the firm, and the letter was returned to sender. The deadline came and went, and courts all the way up to the 11th U.S. Circuit Court of Appeals refused to reconsider. The U.S. Supreme Court finally decided to accept it in late March.

- Foster and another man were convicted of murdering a woman in 2002. She was found with a bullet in her head, and an autopsy showed both men had sex with her. The other man confessed four times to being the sole murderer, but prosecutors argued that she was shot elsewhere and dumped where her body was found. They did not believe the confessor was strong enough to move her body by himself, and so Foster must have helped. Appellate lawyers argued that a "blood spatter" expert should have been hired during trial to show she had been shot where she was found. But it was not brought up in post-conviction, either. In 2010, such an expert volunteered to do the analysis for free, but the new evidence could not be admitted. The Supreme Court declined to accept the case in January, but stayed Foster's execution Tuesday pending a decision on whether to reconsider.

- Cook and a roommate tortured, sodomized and killed two men in Lake Havasu City in 1987. Cook decided to defend himself, and during the sentencing stage of his trial, he failed to describe extensive sexual and emotional abuse he had suffered as a child and teen. His post-conviction counsel failed to raise the issue. In February, the Supreme Court refused to take the case, but issued a stay of execution Monday, pending a decision whether to hear it.

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