Ron Lafferty motion to stay appeals in federal court

8/20/2019 Ron Lafferty motion to stay appeals in federal court

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Jon M. Sands

Federal Public Defender

Therese Michelle Day (Georgia Bar No. 213810)David Christensen (Utah Bar No. 13506)

Assistant Federal Public Defenders

850 West Adams Street, Suite 201

Phoenix, Arizona 85007

(602) 382-2816 (telephone)

(602) 889-3960 (facsimile)

[email protected]

[email protected]

Richard P. Mauro (Utah Bar No. 5402)Local Counsel for Ronald Lafferty

43 East 400 South

Salt Lake City, Utah 84111

(801) 363-9500

(801) 364-3232 (facsimile)

Attorneys for Petitioner

IN THE UNITED STATES DISTRICT COURT

DISTRICT OF UTAH, CENTRAL DIVISION

RONALD WATSON LAFFERTY,

Petitioner,

v.

SCOTT CROWTHER, Warden,

Respondent.

Case No. 2:07-CV-322 DB

Amended Motion and Memorandum

in Support of Motion to Stay and Hold

Habeas Proceedings in Abeyance

Judge Dee Benson

Death Penalty Case

Case 2:07-cv-00322-DB Document 373 Filed 07/10/15 Page 1 of 37


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Petitioner Ronald Watson Lafferty respectfully requests this Court to stay

his federal habeas case and hold it in abeyance while he exhausts certain of his

claims in state court proceedings. Lafferty makes this motion pursuant to Rhines v.

Weber , 544 U.S. 269 (2005), which acknowledges this Court’s authority to enter

such an order as a proper use of discretion.

I. Stay and Abeyance under Rhines v. Weber.

The Antiterrorism and Effective Death Penalty Act (“AEDPA”) required

Lafferty to exhaust all of his federal constitutional claims in state court (18 U.S.C.

§ 2254(b)(1)(A)) and to file his petition for writ of habeas corpus within a one-year

statute of limitations (18 U.S.C. § 2244(d)). This combination of the total

exhaustion requirement and the statute of limitations, however, created the risk of

petitioners who filed “mixed” petition—containing both exhausted and

unexhausted claims—“forever losing their opportunity for any federal review of

their unexhausted claims.” Rhines, 544 U.S. at 275. The Court acknowledged “the

gravity of this problem and the difficulty it has posed for petitioners and federal

district courts alike.” Id .

To resolve the concern, the Court endorsed a procedure in which district

courts may stay a federal petitioner’s habeas case and hold it in abeyance while the

petitioner exhausted his claims in state court. Id . at 275-77; see also Pace v.



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DiGuglielmo, 544 U.S. 408, 416 (2005) (petitioners with potentially untimely state

petitions should file federal petitions as a means to preserve their rights to federal

review, and then seek stays of federal habeas proceedings pending exhaustion

under Rhines); Fairchild v. Workman, 579 F.3d 1134, 1151 (10th Cir. 2009)

(holding that a court should not address the merits of claims before the defendant

has exhausted all available state-court remedies). This practice is rooted in a

district court’s traditional authority to stay cases, when appropriate, as a proper

exercise of its discretion. Rhines, 544 U.S. at 276 (citing Landis v. North

American Co., 299 U.S. 248, 254 (1936), and Clinton v. Jones, 520 U.S. 681, 706

(1997)).

In cases subject to the AEDPA, it is proper for a district court to stay a case

and hold it in abeyance if a petitioner can meet certain conditions. First, there must

be “good cause for the petitioner’s failure to exhaust his claims first in state court.”

Rhines, 544 U.S. at 277. Second, the claims must not be “plainly meritless.” Id .

And third, the petitioner must not “deliberately engage dilatory tactics.” Id . If a

petitioner meets these conditions, a stay of his case does not frustrate the AEDPA’s

purpose “to ‘reduce delays in the execution of state and federal criminal sentences,

particularly in capital cases.’” Id . at 276 (quoting Woodford v. Garceau, 538 U.S.



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202, 206 (2003)). Lafferty’s unexhausted claims meet these conditions, as is

established below.

II. Lafferty Has Good Cause for the Failure to Exhaust His Claims.

Lafferty has several unexhausted claims that he seeks to exhaust in state

court. “[S]tay and abeyance is only appropriate when the district court determines

that there was good cause for the petitioner’s failure to exhaust his claims first in

state court.” Rhines, 544 U.S. at 277. These claims are based on the State’s failure

to preserve and disclose material exculpatory evidence (Claims Three and Four);

the state court not having preserved a complete record of his proceedings (Claims

Five and Thirty-Three); the ineffective assistance of trial and post-conviction

counsel (Claims Seven and Thirty-Three); the ineffective assistance of direct

appeal and post-conviction counsel (Claim Ten and Twenty-Six); and the

ineffective assistance of post-conviction counsel (Claim Eleven).

A. Lafferty May Show Good Cause for His Failure to Exhaust

Because the State Withheld and Destroyed Material Exculpatory

Evidence.

As established in Claims Three and Four (Dist. Ct. Dkt. 39 at 55-70), the

State committed several errors with regard to the testimony and evidence it

presented at Lafferty’s trial. See Brady v. Maryland , 373 U.S. 83 (1963); see also

Arizona v. Youngblood , 488 U.S. 51 (1988). The State failed to disclose the prison



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disciplinary history of, and an agreement to provide benefits to, prosecution

witness Charles Carnes, resulting in Carnes’s false testimony at trial. The State

also altered, failed to preserve, and destroyed forensic evidence.

1.

Carnes’s False Testimony.

The Brady Court held that a defendant’s due process rights include the right

to learn of, before trial, evidence that is “material either to guilt or to punishment,

irrespective of the good faith or bad faith of the prosecution.” 373 U.S. at 87

(emphasis added). Later, the Court added that “[w]hen the ‘reliability of a given

witness may well be determinative of guilt or innocence,’ non-disclosure of

evidence affecting credibility falls within this general rule.” Giglio v. United

States, 405 U.S. 150, 154 (1972) (quoting Napue v. Illinois, 360 U.S. 264, 269

(1959)).

As detailed in Claim Three, Charles “Chip” Carnes testified against Lafferty,

claiming that Lafferty bragged about killing Brenda Lafferty. (Dist. Ct. Dkt. 39 at

63-67.) Carnes also testified that he was “not a problem inmate.” (TR ROA1 5446

at 106.) In fact, Carnes had been charged in prison with twenty-six separate

infractions and had been convicted of fifteen of those charges. (Dist. Ct. Dkt. 39 at

63.) Despite available records that existed to impeach Carnes about his claim of

11 “TR ROA” represents the Record on Appeal for Lafferty’s second trial.



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good behavior, the State stood silent and allowed Carnes’s false testimony to go

uncorrected.

Additionally, less than three months after he testified, Carnes was assigned

to a new prison agent, the first assigned to him since his incarceration in 1984.

(Dist. Ct. Dkt. 39 at 63-64.) And, approximately five weeks later, Carnes entered a

“Day Reporting” program, which allowed inmates to leave the prison. (Dist. Ct.

Dkt. 39 at 64.) The State never disclosed any agreement to provide a benefit to

Carnes in exchange for his testimony.

Carnes’s false testimony was material to the issue of guilt as the State relied

on it to establish that Lafferty killed Brenda Lafferty. Had the State fulfilled its

duty and disclosed Carnes’s disciplinary record and its agreement to assist him in

modifying the conditions of his confinement, Lafferty could have undermined his

credibility and reduced the impact of his testimony on the determination of

Lafferty’s guilt and sentence.

2.

The Alteration, Mishandling and Destruction of the Drape,

and the Loss of Logbooks.

The State must preserve “evidence that might be expected to play a

significant role in the suspect’s defense.” California v. Trombetta, 467 U.S. 479,

488 (1984); see also Brady, 373 U.S. 83. The loss or destruction of material

exculpatory evidence always amounts to a denial of due process. Illinois v. Fisher ,



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540 U.S. 544, 547 (2004) (citing Brady, 373 U.S. 83 and United States v. Agurs,

427 U.S. 97 (1976)). Evidence is material if it possesses an exculpatory value that

was apparent before it was destroyed, and if it is of such a nature that the defendant

cannot obtain comparable evidence by another readily available means. See

Trombetta, 467 U.S. at 489.

As detailed in the amended petition, the drape from Brenda Lafferty’s

kitchen was recognized by the State as evidence of forensic value and was

subjected to examination and testing. (Dist. Ct. Dkt. 39 at 60-70.) Notes from the

forensic examiner, Martha Kerr, indicate that “suspect poss. wiped hands or

weapon on” the drape and that it was “covered w blood.” (Dist. Ct. Dkt. 39 at 61.)

The drape was used as evidence in both of Lafferty’s trials. Between the two trials,

however, the condition of the drape was altered, portions of the drape were

removed and either lost or destroyed, and it was mishandled in a way that

compromised its evidentiary value.

Kerr, who was not employed by the Utah crime lab at the time of the second

trial, made statements that between the trials the stains on the drape appeared to

have been altered and that the drape was mishandled. (Dist. Ct. Dkt. 39 at 62-63.)

She said it appeared that a stain, which was originally present, had been removed

and a second stain had been added to the drape. (Dist. Ct. Dkt. 39 at 63.) She also



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stated that the drape was being stored for a period of time at the office of an

assistant attorney general, where she observed it when being prepared for her

testimony at the second trial. (Dist. Ct. Dkt. 39 at 62.) According to Kerr, the

assistant attorney general and personnel at the crime lab were aware of the

alterations to, and possible destruction of, evidence from the drape. (Dist. Ct. Dkt.

39 at 63.) Prior to the second trial, Kerr recommended that additional testing be

done on the drape, which never occurred. (Dist. Ct. Dkt. 39 at 63.)

Additionally, Kerr stated that her evidence logbooks had been lost, requiring

her to recreate her logs. (Dist. Ct. Dkt. 39 at 63.) Kerr has been subpoenaed to

testify in at least one other case regarding claims of evidence destruction,

tampering or misrepresentation. (Dist. Ct. Dkt. 39 at 63.) And she has said she

believes certain documents, reports, logbooks and evidence have been forged,

falsified, manipulated, or destroyed in other criminal cases. (Dist. Ct. Dkt. 39 at

62.)

The drape meets both prongs of the Trombetta test for materiality. First, its

exculpatory value was evident as soon as the drape was observed by crime lab

personnel, as it was noted to have stains that were attributed to the perpetrator who

had wiped his hands or the weapon on it. Evaluation of the evidence could reveal

information about the identity or characteristics of the perpetrator.



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Second, Lafferty cannot obtain comparable evidence through any other

reasonable means. This kind of forensic evidence is unique. Any change to the

evidence will fundamentally alter it, and its evidentiary value is lost forever.

Additionally, mishandling the evidence either through a break in the chain of

custody or deviation from proper storage and handling procedures will

compromise the integrity of the evidence, rending it unreliable for any possible

inferences of fact. Regardless of this, the State proceeded to present evidence from

the drape, despite its knowledge of its loss of value as a reliable source. (Dist. Ct.

Dkt. 39 at 63.) And the State relied on this evidence in its argument for convicting

Lafferty of the offense. All of this was done in violation of Lafferty’s right to due

process.

The State’s failure to disclose material exculpatory evidence provides “good

cause” to excuse Lafferty’s failure to fully exhaust his Brady, Youngblood , and

related claims in state court. Lafferty cannot be faulted for failing to present

evidence which the State improperly concealed. See Banks, 540 U.S. at 691-95

(cause is established to overcome procedural default when a state suppresses

material exculpatory evidence). And while counsel for Respondent notified

Lafferty’s post-conviction counsel of potential problems with forensic evidence, he

did not do so until after the post-conviction appeal had been submitted to the state



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supreme court for decision. (Dist. Ct. Dkt. 69, Exh. E.) Lafferty’s post-conviction

counsel could have notified the court of this significant evidentiary change in the

case. Their failure to do so, however, excuses any potential default of this claim.

See Martinez v. Ryan, 132 S.Ct. 1309 (2012), and Trevino v. Thaler , 133 S.Ct.

1911 (2013)2. Lafferty’s post-conviction counsel has admitted that they failed to

follow up on this notification in any way, and that they had “no strategic reason for

not doing this.” (Attachment A) (Declaration of Aric Cramer, November 19, 2014,

¶16.)

B. Lafferty May Show Good Cause for His Failure to Exhaust

Because the State Courts Failed to Preserve a Complete Record of

His Jury Selection.

Issues surrounding jury selection are of great importance to capital cases.

Lafferty has potentially meritorious issues alleging that his constitutional rights

were violated due to the exclusion of at least one juror in violation of Witherspoon

v. Illinois, 391 U.S. 510 (1968), and due to the improper selection of biased jurors

who should have been stricken for cause pursuant to Wainwright v. Witt , 469 U.S.

412 (1985), and Morgan v. Illinois, 504 U.S. 719 (1992). (Dist. Ct. Dkt. 39 at 250-

2 The cases of Martinez and Trevino, and their impact on overcoming the default

of ineffective assistance of trial counsel claims have been discussed more

extensively in Lafferty’s prior pleadings. (Dist. Ct. Dkt. 349 at 11-13; Dist. Ct.

Dkt. 366 at 10-13.)



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58.) Because the voir dire proceeding on March 19, 1996, was never made part of

the record, and may never have been prepared or filed, Lafferty is unable to fully

address his claims related to jury selection until a complete record is compiled.

This gap in the trial court record impacts Lafferty’s ability to adequately plead the

factual bases for his jury-related claims, including Claim Thirty-Two, regarding

the trial court’s erroneous denial of a motion for change of venue (Dist. Ct. Dkt. 39

at 243-49); Claim Thirty-Three, regarding the seating of biased jurors (Dist. Ct.

Dkt. 39 at 250-53), discussed further in the next section; and Claim Thirty-Four,

regarding the trial court erroneously granting the State’s challenges for cause.

(Dist. Ct. Dkt. 39 at 250-58.)

C. Lafferty May Show Good Cause for His Failure to Exhaust

Because of Ineffective Assistance of His Prior Counsel.

Neither trial counsel, who was also direct appeal counsel, nor state post-

conviction counsel, effectively represented Lafferty at any stage of his

proceedings. The overall effect of their deficiencies was the denial of his

constitutional right to challenge the State’s case against him. These failures by

trial, appellate, and state post-conviction counsel establish good cause to stay the

federal habeas proceedings to exhaust his claims.



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Claims Seven & Thirty-Three

In Claim Seven of his amended petition, Lafferty alleges his trial counsel,

operating under an impermissible conflict, failed to bring Lafferty’s intent to

exercise his right to self-representation to the trial court. (Dist. Ct. Dkt. 39 at 81-

86.) This failure by trial counsel resulted in Lafferty being denied a hearing on the

issue, as required by the Sixth Amendment. See Faretta v. California, 422 U.S.

806, 819, 835 (1975). Additionally, this failure resulted in Lafferty being

represented throughout his trial by conflicted counsel. As described in Claim

Eight, Lafferty’s trial counsel had previously represented Dan Lafferty in his trial

based on the same facts, and put Dan on the stand to testify as to his own version

of the circumstances of the offense. (Dist. Ct. Dkt. 39 at 87-103; Dist. Ct. Dkt. 349

at 21-28.)

In Claim Thirty-Three, Lafferty alleges how his trial counsel failed to

adequately subject potential jurors who had exhibited bias on their questionnaires

to voir dire so that the trial court could properly exclude them from jury service.

(Dist. Ct. Dkt. 39 at 250-53; Dist. Ct. Dkt. 349 at 119-21.) The result of this

failure was that Lafferty was convicted and sentenced by four jurors, accounting

for a full one-third of those on his panel, who appeared to have religious biases,

preconceived opinions about Lafferty’s guilt, or both. “Among the most essential



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responsibilities of defense counsel is to protect his client’s constitutional right to a

fair and impartial jury by using voir dire to identify and ferret out jurors who are

biased against the defense.” Miller v. Francis, 269 F.3d 609, 615 (6th Cir. 2001);

see also Mu’Min v. Virginia, 500 U.S. 415, 431 (1991) (stating that voir dire

“serves the dual purposes of enabling the court to select an impartial jury and

assisting counsel in exercising peremptory challenges”). As discussed above, this

prejudicially deficient conduct by trial counsel deprived Lafferty of his right to an

impartial jury. See Morgan v. Illinois, 504 U.S. 719, 727 (1992).

These substantial claims of ineffective assistance of trial counsel are

unexhausted because Lafferty’s post-conviction counsel unreasonably failed to

raise them to the state court. The failings of post-conviction counsel can establish

cause to overcome default under both federal and state law. The United States

Supreme Court has recognized that ineffective assistance in an initial-review

collateral proceeding can establish cause for the default of a meritorious ineffective

assistance of trial counsel claim. See Martinez, 132 S.Ct. at 1320; see also

Trevino, 133 S.Ct. at 1921. Lafferty’s post-conviction counsel has admitted that

there was no strategic purpose for their failure to investigate claims related to the

jurors and their biases. (Attachment A, ¶¶11-12.)



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Also, Lafferty had a state statutory right to the effective assistance of post-

conviction counsel. See Menzies v. Galetka, 150 P.3d 480, 510 (Utah 2006). This

right, which cannot be retroactively denied by the subsequent amendments to the

post-conviction statues, see Julian v. State, 52 P.3d 1168, 1171 (Utah 2002), gives

Lafferty cause before the state court to overcome any default in post-conviction

review of his claims of ineffective assistance of trial counsel. Therefore, Lafferty

has good cause to excuse the failure to exhaust these claims.

Claim Ten

In Claim Ten, Lafferty argues that he received ineffective assistance of

counsel during his direct appeal proceedings because his counsel failed to meet the

ABA Guidelines for the Appointment and Performance of Defense Counsel in

Death Penalty Cases (2003), and failed to preserve grounds for relief that were

apparent from the record. (Dist. Ct. Dkt. 39 at 118-23.) This Court ruled that

several aspects of this claim (“examples 2, 6, 7, and 9”) were unexhausted because

post-conviction counsel failed properly to plead the claims as ineffective assistance

of counsel claims in Lafferty’s post-conviction petition3. (Dist. Ct. Dkt. 370 at 15-

3 This Court addressed Lafferty’s allegation that “direct appeal counsel was

deficient for failing to argue that executing someone who was mentally ill when

the crime was committed or who will be mentally ill when executed is

unconstitutional[,]” (“example 14”). (Dist. Ct. Dkt. 370 at 17 (emphasis in

original).) The Court appears to find that the manner in which post-conviction



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17.) This Court also ruled that Lafferty’s allegation that direct appeal counsel was

deficient for failing adequately to appeal the general methods of execution by

firing squad or lethal injection (“example 12”) was defaulted during post-

conviction proceedings because post-conviction counsel failed to raise the claim in

Lafferty’s post-conviction appeal. (Dist. Ct. Dkt. 370 at 17.)

These aspects of this claim are as follows:

2) Direct appeal counsel performed deficiently when theyfailed to appeal the denial of the motion regarding death

qualification of the jury venire, failed to appeal the

selection process and jurors selected, and failed to ensure

that the Supreme Court had a complete and full record

and transcripts of the jury selection on direct appeal.

6) Direct appeal counsel performed deficiently when they

failed to challenge penalty phase instructions, including

but not limited to Instruction No. 2, which prevented the jurors from considering residual doubt as a mitigating

factor.

counsel pleaded this issue was deficient because they confused mental retardation

with mental illness. Id. at 18. Moreover, post-conviction counsel waived the issue

in the post-conviction appeal. Id. Despite this, the Court found that direct appeal

counsel properly preserved the aspect of the claim addressing “the constitutionality

of sentencing someone who was mentally ill when the crime was committed[.]”

Id. In light of this, the underlying issue, which is presented in Lafferty’s habeas petition as Claim Twenty-Nine is exhausted and ripe for federal review. The court

also found that the future aspect of the claim related to executing Lafferty while he

is mentally ill is an issue that is not yet ripe for review. Id. at 20 (citing Ford v.

Wainwright , 477 U.S. 399 (1986)). Therefore, this aspect of the claim is not the

subject of this amended motion.



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failed to challenge the court’s failure to instruct the jurors

that they did not need to unanimously find the mitigatingfactors.


failed to challenge the fact that the jurors were not

required to submit a special verdict form.


failed adequately to appeal the method of execution,

death by firing squad, or death by lethal injection.

As Lafferty demonstrated in his amended habeas petition and Reply II, his

claim of ineffective assistance of appellate counsel is substantial. (Dist. Ct. Dkt.

39 at 118-23; Dist. Ct. Dkt. 349 at 50-86.) In addition to his discussion below,

Lafferty relies on the merits discussion of these aspects of the claim in his federal

habeas petition and in his Reply (Legal Issues): “example 6” is addressed under

Claim Eighteen; “example 7” is addressed under Claim Nineteen; “example 9” is

addressed under Claim Thirteen; and “example 12” is addressed under Claim

Twenty-Six. (Dist. Ct. Dkt. 39 at 143-45, 164-70, 194-200); Dist. Ct. Dkt. 173 at

28-30, 39-47, 51-52.) As to “example 2”, Lafferty cannot adequately address this

claim until there is a complete record of the transcripts of the voir dire

proceedings. Lafferty raised this concern in his federal habeas petition as Claim 5

and further addressed this issue under that enumeration in his Reply II. (Dist. Ct.

Dkt. 39 at 71-76; Dist. Ct. Dkt. 349 at 8-10.)



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Claim Ten: Example Two

As Lafferty notes above, this aspect of Claim Ten cannot be properly raised

until there is a complete record of the voir dire in Lafferty’s case. In support of

this aspect of the claim, Lafferty obtained a recent declaration from Michael

Esplin, who served as his trial and appellate counsel. (Attachment B) (Declaration

of Michael D. Esplin, February 26, 2015.) In his declaration, Esplin

acknowledges:

During voir dire it became clear that a large percentage of the jury

pool had prior knowledge of Mr. Lafferty and the case and had

already determined that he was guilty of the crimes. The juror

questionnaires demonstrated that approximately 80% of the jury pool

had prior knowledge of the case and that 60% of those with prior

knowledge of the case had formed an opinion that [Mr.] Lafferty was

guilty. While the trial judge initially granted all of our challenges for

cause based on prior knowledge of the case and bias, once it becameclear that we were running out of prospective jurors, the judge denied

our motions for cause and we were required to exhaust our

peremptory challenges to exclude biased jurors from the venire.

. . .

I believe that this resulted in biased jurors being seated in Mr.

Lafferty’s case; and I should have raised this as a claim in his direct

appeal. I had no strategic reason for not raising this as a claim of error

in Mr. Lafferty’s appeal following his second trial.

(Attachment B, ¶¶ 7-8.)

Lafferty will fully develop this aspect of Claim Ten once he has obtained a

complete record of the voir dire in his case.



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Claim Ten: Example Six

Direct appeal counsel was ineffective for failing to challenge penalty-phase

Instruction 2, which prevented the jurors from considering residual or lingering

doubt that Lafferty was responsible for the murders as mitigating evidence. During

the penalty phase of Lafferty’s trial, the jurors were instructed, “[I]t is improper for

you to again debate or reconsider the question of the defendant’s guilt or

innocence.” (TR ROA 5096 (Instruction No. 2).) The effect of this instruction

was to prevent the jurors from considering compelling mitigating evidence

presented through the testimony of Lafferty’s brother, Dan Lafferty (“Dan”),

during the penalty phase in violation of federal constitutional law which requires

the sentencer to be able to consider “any aspect of the defendant’s character or

record and any of the circumstances of the offense that the defendant proffers as a

basis for a sentence less than death.” Lockett v. Ohio, 438 U.S. 586, 604 (1978)

(emphasis added); see also Eddings v. Oklahoma, 455 U.S. 104, 110 (1982).

During the penalty phase, Dan testified that at the scene, while the victims

were still alive, he “could tell [that Ron] was very very frightened. . . . [a]nd Ron

turned to me and said, ‘Let’s get out of here.’” (TR ROA 5449 at 76.) Dan told

Lafferty to leave if he had to but that he had things he had “to do first[,] [a]nd I’m

going to take care of these things now.” Id. Dan testified, “Ron was kind of



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frozen in place.” Id. Dan then went on to testify that Ron was unable to

participate in the murders and that he alone was responsible for the murders of

Brenda and Erica Lafferty. Id. at 79-81.

This testimony made it clear that Lafferty was not the actual killer of either

victim. Under Utah law, the following statutory mitigating circumstance would

have been directly applicable to the circumstances of these offenses: “the

defendant was an accomplice in the homicide committed by another person and the

defendant’s participation was relatively minor[.]” U.C.A. § 76-3-207(4)(f). The

court instructed the jurors on this mitigating circumstance (TR ROA 5090

(Instruction No. 7)), but then also instructed them that they could not consider the

testimony of Dan because they were not allowed “to again debate or reconsider the

question of the defendant’s guilt or innocence.” (TR ROA 5096 (Instruction No.

2).) The court’s actions prevented the jurors from considering compelling

mitigating evidence that Lafferty was not the actual killer of either victim in

violation of the Eighth and Fourteenth Amendments to the United States

Constitution. By limiting the jurors’ consideration of this important mitigating

circumstance, Lafferty was denied a reliable individualized sentencing

determination. See Lockett , 438 U.S. at 604; see also Eddings, 455 U.S. at 110.



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Direct appeal counsel was ineffective for failing to raise this claim in state

court. See Strickland v. Washington, 466 U.S. 668, 685-87 (1984); see also Lucey,

469 U.S. at 396-97. Lafferty was prejudiced when this claim was not preserved in

his direct appeal because the jurors were prevented from considering evidence that

could have resulted in a sentence other than the death penalty.

Claim Ten: Example Seven

Direct appeal counsel was ineffective for failing to challenge the court’s

refusal to instruct the jurors regarding unanimity. The penalty-phase instructions

failed to inform the jurors that mitigating circumstances did not need to be found

unanimously in order to be given weight in the decision whether to impose the

death penalty. Such an instruction was particularly important in light of the other

instructions which treated the consideration of both aggravating and mitigating

circumstances the same and failed to explain that aggravating circumstances must

be found unanimously.

In penalty-phase Instruction No. 6, the jurors were instructed that they must

weigh the totality of the aggravating circumstances against the totality of the

mitigating circumstances. (TR ROA 5092 (Instruction No. 6).) There is nothing in

this instruction that explains to the jurors that they must find aggravating

circumstances unanimously, or that they do not need to be unanimous in their



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findings of mitigating circumstances. Therefore, the jurors had no guidance that

the findings of aggravating circumstances were to be treated any differently than

the findings of mitigating circumstances. Similarly, the instructions related to

mitigating circumstances (Instruction No. 7) and aggravating circumstances

(Instruction No. 8) do not include any language related to unanimity. (TR ROA

5090-5088.) Penalty-phase Instruction No. 9 also instructs the jurors that they

must weigh aggravating circumstances against mitigating circumstances, but fails

to inform the jurors that only aggravating circumstances must be found

unanimously by the jurors. (TR ROA 5087.) There is nothing in any of these

instructions that informs the jurors that they are required to be unanimous in their

findings of aggravating circumstances, or that they are not required to find

mitigating circumstances unanimously. From the face of these instructions, it

appears the jurors are required to treat all sentencing evidence exactly the same.

Further confusing the treatment of these sentencing factors is penalty-phase

Instruction No. 12, which states: “In order to return a sentence of death, the jury’s

verdict must be unanimous in favor of death.” (TR ROA 5084 (Instruction No.

12).) This instruction, like all of the other instructions related to sentencing

factors, fails to instruct the jurors that they do not have to be unanimous in their

finding of mitigating circumstances. If anything, this instruction, the only



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instruction mentioning unanimity, instructs the jurors that they must find all

aggravating and mitigating circumstances unanimously before deciding on a

sentence.

In order to clarify the distinction between the jurors’ consideration of

aggravating circumstances and mitigating circumstances, trial counsel requested

the following instruction: “Your finding as to any aggravating factor must be

unanimous. If any one of you does not believe that a particular aggravating factor

should be considered in this case, then none of you should consider that factor in

reaching your ultimate decision.” (TR ROA 4973 (Defendant’s Proposed

Instruction No. 13).) The trial court denied the request for this instruction. Id.

During the penalty-phase charge conference, trial counsel attempted to correct this

error by taking exception to the court’s refusal to instruct the jury that only

aggravating circumstances must be found unanimously. (TR ROA 5456 at 6.) The

court did not change its ruling as to this proposed instruction. Id. Because the

only instruction addressing unanimity, Instruction No. 12, instructed the jurors that

they must be unanimous if they decide to return a death sentence, and because the

other instructions treated both aggravating and mitigating circumstances the same

with regard to weighing, the jurors were ineluctably led to believe that all



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circumstances, both aggravating and mitigating, must be found unanimously before

reaching a sentencing decision, in violation of Lafferty’s constitutional rights.

As Lafferty argues in his habeas petition, the circumstances in his case are

similar to those in the case of McKoy v. North Carolina, 494 U.S. 433 (1990).

(Dist. Ct. Dkt. 39 at 169-70.) In McKoy, the United States Supreme Court held

that North Carolina’s sentencing scheme, allowing jurors to consider only those

mitigating circumstances they found unanimously when determining whether

aggravating circumstances were sufficient to justify imposing the death penalty,

impermissibly restricted the jurors consideration of mitigating evidence, in

violation of the Eight Amendment. McCoy, 494 U.S. at 444; see also Mills v.

Maryland , 486 U.S. 367, 375 n.7 (1988).

The penalty-phase jury instructions in Lafferty’s case failed properly to

guide the jurors in their consideration of aggravating and mitigating evidence,

resulting in a sentencing process that was fundamentally unfair. See Furman v.

Georgia, 408 U.S. 238 (1972); see also Hicks v. Oklahoma, 447 U.S. 343, 346

(1980); Estelle v. McGuire, 502 U.S. 62, 72 (1991) (finding that “[i]t is well

established that the instruction ‘may not be judged in artificial isolation,’ but must

be considered in the context of the instructions as a whole and the trial record.”)



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Direct appeal counsel was ineffective for failing to raise this claim in state

court. See Strickland , 466 U.S. at 685-87; see also Lucey, 469 U.S. at 396-97.

Lafferty was prejudiced when this claim was not preserved in his direct appeal

because the jurors were not properly instructed on how to consider aggravating and

mitigating circumstances, which likely prevented them from considering mitigating

evidence that could have weighed against imposing the death penalty.

Claim Ten: Example Nine

Direct appeal counsel performed deficiently when they failed to challenge

the fact that the jurors were not required to submit a special verdict form when

rendering their sentencing decision. The Penalty Phase Verdict Form is comprised

of the following two findings by the jurors:

Count I: Verdict Form “A”. We, the jury in the above case, unanimously

render a verdict of death.

Count II: Verdict Form “A”. We, the jury in the above case, unanimously

render a verdict of death.

(TR ROA 5102, 5100). The jurors’ sentencing verdict provides no information

about which aggravating circumstance they found beyond a reasonable doubt in

order to make Lafferty eligible for the death penalty. It also provides no

information about what mitigating evidence they found, if any.



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Under Utah law, Lafferty was entitled to have the Utah Supreme Court

automatically review his sentence of death to determine whether the sentence

resulted from error, prejudice or arbitrariness, or whether it was disproportionate.

U.C.A. § 76-3-206(2); see also State v. Wood , 648 P.2d 71 (Utah 1981); State v.

Pierre, 572 P.2d 1338 (Utah 1977). Appellate review of death sentences was a key

feature of capital sentencing statutes that were modified following Furman v.

Georgia, 408 U.S. 238 (1972), to make the imposition of capital sentences

constitutionally permissible. See Gregg v. Georgia, 428 U.S. 153, 204-05 (1976)

(finding “[t]he provision for appellate review . . . [of a] capital-sentencing system

serves as a check against the random or arbitrary imposition of the death penalty.”)

In Utah, automatic review of death sentences is an integral aspect of Utah’s overall

capital sentencing scheme that makes its capital sentencing statute constitutionally

compliant. Because the jurors in Lafferty’s case made no findings with regard to

aggravating and mitigating circumstances, there was no possible way for the Utah

Supreme Court to review the sentencing evidence to ensure that the sentence

imposed was not constitutionally offensive. This is particularly problematic in

Lafferty’s case where the jurors were not specifically instructed that they must find

at least one aggravating circumstance unanimously, and where they were not

informed that they did not have to find mitigating evidence unanimously. This



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problem was exacerbated by other instructions that made the jurors’ consideration

of sentencing evidence unclear.

Because the provision for automatic review of death sentences is an integral

part of Utah’s capital sentencing process, the verdict form in Lafferty’s case

prevented the Utah Supreme Court from properly reviewing his death sentence,

undermining the constitutionality of Lafferty’s death sentence. It was impossible

for the Utah Supreme Court to fulfill its independent duty to ensure the

constitutionality of Lafferty’s death sentence without having this relevant evidence

available to it.

Direct appeal counsel was ineffective for failing to challenge the failure to

use a special verdict form, listing the aggravating and mitigating evidence the

jurors used in their sentencing calculus. See Strickland , 466 U.S. at 685-87; see

also Lucey, 469 U.S. at 396-97. Lafferty was prejudiced when this claim was not

preserved in his direct appeal because he was denied the full benefit of the capital

sentencing scheme where there was no available evidence related to his sentence

for the Utah Supreme Court to review to ensure that his sentence was not imposed

in violation of the Eighth Amendment.



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Claim Ten: Example Twelve

Direct appeal counsel performed deficiently when they failed adequately to

appeal the constitutionality of Lafferty’s death sentence in light of available

methods of execution under Utah law. See Strickland , 466 U.S. at 685-87; see also

Lucey, 469 U.S. at 396-97. Lafferty was prejudiced when this claim was not

preserved in his direct appeal because all available methods of execution violate

the Eighth Amendment prohibition against cruel and unusual punishments.

Glossip v. Gross, 576 U.S. _____ (2015), 2015 U.S. LEXIS 4255, at *75-76

(Breyer, J., dissenting).

Lafferty relies on the arguments he made in his federal habeas petition and

replies, addressing Claims 10 and 26 (Dist. Ct. Dkt. 39; Dist. Ct. Dkt. 173; Dist.

Ct. Dkt. 349), as well as his argument addressing the underlying issue in Claim 26

below.

Conclusion

Claim Ten is a meritorious claim that addresses issues that were clear from

the trial record and should have been framed in the PCR petition as ineffective-

assistance-of-appellate-counsel claims in the first instance. As this Court ruled, the

only reason this claim was not properly preserved in state court was the

ineffectiveness of post-conviction counsel. (Dist. Ct. Dkt. 370 at 15-17.) Because



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Lafferty had a state statutory right to the effective assistance of post-conviction

counsel, Lafferty has good cause to excuse the failure to exhaust this claim.

Menzies, 150 P.3d at 510.

Claim Eleven

In Claim Eleven, Lafferty argued that his post-conviction counsel were

ineffective when they failed to: meet the ABA Guidelines for the Appointment

and Performance of Defense Counsel in Death Penalty Cases (“ABA Guidelines”);

identify preserved grounds for relief; adequately allege claims of ineffective

assistance of trial and appellate counsel to preserve other grounds for relief; raise

instances of fundamental and structural error apparent from the record; and allege

claims that would have otherwise provided the court with an opportunity to review

other claims on the merits. (Dist. Ct. Dkt. 39 at 130.)

This Court found that the only aspect of this claim that has been exhausted is

the first allegation that due to time and money constraints, post-conviction counsel

were rendered ineffective and were not able to comply with the ABA Guidelines.

(Dist. Ct. Dkt. 370 at 19.) To the extent that this Court has found this claim is

unexhausted, it is because Lafferty could not have raised a claim against his post-

conviction counsel while they still represented him in his post-conviction

proceedings. (Dist. Ct. Dkt. 39 at 124.) (citing Rudolph v. Galetka, 43 P.3d 467,



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468-69 (Utah 2002)).) Moreover, because Utah provided a statutory right to post-

conviction counsel for capital defendants at the time of Lafferty’s post-conviction

proceedings and established standards to ensure they would perform competently,

Lafferty should now be allowed to return to state court to present these claims for

consideration. (Dist. Ct. Dkt. 39 at 125-27 (citing Menzies, 150 P.3d at 510-11;

U.C.A. §§ 78-35a-201-202).)

In a recently obtained declaration, Aric Cramer, Lafferty’s post-conviction

counsel, admitted that he performed deficiently with respect to Lafferty’s state

capital post-conviction case (“PCR”). Cramer stated that Lafferty’s was the first

PCR case he had ever worked on and that he was unprepared for the size of the

record and complexity of the issues. (Attachment A, ¶ 6.) Cramer also stated that

at the time he represented Lafferty he was in private practice and had “an

extremely heavy caseload” that prevented him from devoting “the time required to

properly investigate and prepare Lafferty’s case prior to filing his PCR petition.”

Id. at ¶¶ 7-8.

Cramer stated that at the time they filed the PCR petition, “there was much

investigation that still needed to be completed to adequately develop and present

his claims[,]” and that the file “was too large for us to review” prior to filing the

PCR petition. Id. at ¶¶ 8-9. Cramer acknowledged that while they had raised



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several claims related to juror bias, they “never attempted to interview the jurors in

Mr. Lafferty’s case, which would have been necessary to develop these claims.”

Id. at ¶ 12. Cramer also acknowledged that while they raised a claim challenging

the credibility of one of the State’s experts at trial, Stephen Golding, Ph.D., they

“never attempted to obtain the transcripts of Dr. Golding’s testimony . . . [nor did

they] attempt to interview Dr. Golding and get a declaration from him . . . .” Id. at

¶¶ 14-15. Therefore, Lafferty’s state post-conviction petition was filed without

counsel first reviewing the record and performing investigation that was necessary

to develop the claims.

The state post-conviction mitigation investigator, Marissa Sandall-Barrus,

also recently provided a declaration about her work on Lafferty’s case. Sandall-

Barrus states that due to limited funding and the actions of post-conviction counsel,

“[t]he mitigation investigation I conducted in this case was ended prematurely and

was incomplete.” (Attachment C) (Declaration of Marissa Sandall-Barrus, June

24, 2014 at ¶ 8.) Sandall-Barrus provides a lengthy list of investigation that was

necessary but never completed. Id. at ¶ 9. Sandall-Barrus also states that the

limitations on her investigation prevented her from conducting interviews with

family members and others in the preparation of her social history. Id. at ¶¶ 10-11.



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Because the State of Utah provided Lafferty with a state statutory right to

effective counsel during his post-conviction proceedings, it was required to

implement this right in a manner that comported with federal due process. (Dist.

Ct. Dkt. 39 at 125-126 (citing Menzies, 150 P.3d at 510-11 and Lucey, 469 U.S. at

396.) The appointment of incompetent post-conviction counsel in Lafferty’s case

rendered his post-conviction proceeding a “meaningless ritual.” (Dist. Ct. Dkt. 39

at 127 (citing Lucey, 469 U.S. at 394 (quoting Douglas v. California, 372 U.S. 353,

358 (1963)).) This right, which cannot be retroactively denied by the subsequent

amendments to the post-conviction statues, see Julian, 52 P.3d at 1171, gives

Lafferty cause before the state court to overcome any default of his claims of

ineffective assistance of trial and appellate counsel during his post-conviction

proceedings. Therefore, Lafferty has good cause to excuse the failure to exhaust

these claims.

Claim Twenty-Six

In Claim Twenty-six of his amended petition, Lafferty argues that the

methods of execution currently available in Utah, lethal injection and firing squad,

will cause “unnecessary pain, torture, and lingering death[,]” in violation of the

Eighth Amendment to the United States Constitution. (Dist. Ct. Dkt. 39 at 194-95

(citing Furman v. Georgia, 408 U.S. 238, 241 (1972), Estelle v. Gamble, 429 U.S.



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97, 102 (1976), Louisiana ex rel. Francis v. Resweber , 329 U.S. 459, 463 (1947),

and In re Kemmler , 136 U.S. 436, 447 (1890)).) Lafferty further argues that he

was incompetent to make a choice between lethal injection and firing squad as the

method of execution that would be employed on him. (Dist. Ct. Dkt. 39 at 196-

97.)

In the recent case of Glossip, 576 U.S. _____ (2015), the constitutionality of

the use of lethal injection as a method of execution was again challenged as

“creating an unacceptable risk of severe pain[ ]” in violation of the Eighth

Amendment to the United States Constitution. 2015 U.S. LEXIS 4255, at *7.

Four out of five United States Supreme Court justices found that lethal injection, as

presently administered, violates the Eighth Amendment. Id. In a dissenting

opinion Justice Breyer, joined by Justice Ginsburg, found:

Today’s administration of the death penalty involves three

fundamental constitutional defects: (1) serious unreliability, (2)

arbitrariness in application, and (3) unconscionably long delays that

undermine the death penalty’s penological purpose. Perhaps as a

result, (4) most places within the United States have abandoned its

use.

I shall describe each of these considerations, emphasizing changesthat have occurred during the past four decades. For it is these

changes, taken together with my own 20 years of experience on this

Court, that lead me to believe that the death penalty, in and of itself,

now likely constitutes a legally prohibited ‘cruel and unusual

punishmen[t].’



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Id. at *75-76 (Breyer, J., dissenting). Justice Breyer stated that if the Court ordered

“full briefing on [the] more basic question: whether the death penalty violates the

Constitution[,]” then it would be “highly likely” that the Court would find “that the

death penalty violates the Eighth Amendment.” Id. at *74, *132. The Court’s

treatment of this issue in Glossip provides support for Lafferty’s argument that the

imposition of the death penalty by any available method of execution violates the

strictures of the Eighth and Fourteenth Amendments, rendering his death sentence

is unconstitutional4.

This Court ruled that Lafferty failed to exhaust this claim during his direct

appeal proceedings. (Dist. Ct. Dkt. 370 at 21.) Because this is a claim of

constitutional magnitude, Lafferty’s direct appeal counsel was ineffective for

failing properly to raise this claim in Lafferty’s direct appeal. Moreover, post-

conviction counsel’s failure to raise this as a claim of ineffective assistance of

direct appeal counsel during Lafferty’s post-conviction proceedings amounted to

ineffective assistance of post-conviction counsel. Because Utah provided a

statutory right to post-conviction counsel for capital defendants at the time of

4 This claim raises a general challenge to the constitutionality of the methods of

execution currently available under Utah law. This claim is not intended to be a

challenge to the specific protocols employed by Utah in administering either lethal

injection or the firing squad. Lafferty reserves the right to challenge the specific

execution protocol in place at the time his execution becomes eminent. See Hill v.

McDonough, 547 U.S. 573 (2006).



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Lafferty’s post-conviction proceedings, and established standards to ensure they

would perform competently, Lafferty has demonstrated cause for his failure to

exhaust this claim and should now be allowed to return to state court to present this

claim for consideration. See Menzies, 150 P.3d at 510-11; see also U.C.A. §§ 78-

35a-201-202.

III. Lafferty’s Claims are Not Plainly Meritless.

A petitioner must also show that his claims are not without merit. “[E]ven if

a petitioner had good cause for [his] failure [to exhaust], the district court would

abuse its discretion if it were to grant him a stay when his unexhausted claims are

plainly meritless.” Rhines, 544 U.S. at 277.

Lafferty has asserted unexhausted claims that are potentially meritorious.

Examination of these unexhausted claims contained in his amended petition (Claim

Three, Dist. Ct. Dkt. 39 at 55-67; Claim Four, Dist. Ct. Dkt. 39 at 68-70; Claim

Five, Dist. Ct. Dkt. 39 at 71-76; Claim Seven, Dist. Ct. Dkt. 39 at 81-86; Claim

Ten, Dist. Ct. Dkt. 39 at 118-23; Claim Eleven, Dist. Ct. Dkt. 39 at 124-35; Claim

Twenty-Six, Dist. Ct. Dkt. 39 at 194-200; and Claim Thirty-Three, Dist. Ct. Dkt.

39 at 250-53); in his Reply (Legal Issues), Claim Twenty-Six, Dist. Ct. Dkt. 173 at

51-52; and in his Reply II, Claims Three and Four, Dist. Ct. Dkt. 349 at 2-7; Claim

Five, Dist. Ct. Dkt. 349 at 8-10; Claim Seven, Dist. Ct. Dkt. 349 at 10-16; Claim



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Ten, Dist. Ct. Dkt. 349 at 50-85; Claim Eleven, Dist. Ct. Dkt. 349 at 86-90; Claim

Thirty-Three, Dist. Ct. Dkt. 349 at 117-24), show that they are not plainly meritless

and that a stay cannot be denied on that basis.

IV.

Lafferty is Not Deliberately Delaying His Proceedings.

Finally, any stay of a mixed petition should not be indefinite. In Rhines, the

United States Supreme Court recommended that “district courts should place

reasonable time limits on a petitioner’s trip to state court and back.” 544 U.S. at

278. Lafferty would agree to file any successive petition for post-conviction relief

in the state court and amend his federal habeas petition pursuant to this Court’s

future order.

Additionally, Lafferty has not engaged in intentionally dilatory litigation

tactics that would justify denial of a stay. He filed his federal habeas petition, the

amendment, and his replies within the time allowed under federal statutes and this

Court’s scheduling orders. He also complied with this Court’s scheduling orders

throughout the process of his competency determination. Under these

circumstances, petitioner has not acted to delay the litigation of his habeas claims.

As noted above, any delay in the resolution of petitioner’s habeas claims is

attributable to failure by the State to meet its Brady and Youngblood obligations, to



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errors of the state courts, and to the ineffective representation he received through

the course of his state trial, appellate and post-conviction proceedings.

V. Conclusion.

For the good cause shown herein, Lafferty respectfully requests this Court

grant his motion to stay this case and hold it in abeyance while he exhausts his

claims in state court.

Respectfully submitted this 10th day of July, 2015.

Jon M. Sands

Federal Public Defender

Therese Michelle Day

David Christensen

Office of the Federal Public Defender

for the District of Arizona

/s/ Therese Michelle Day



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CERTIFICATE SERVICE

I hereby certify that on this 10th day of July, 2015, I electronically filed the

foregoing document to the Clerk’s Office using the CM/ECF system which sent

notification of such filing to the following registrants:

Thomas B. Brunker

Andrew F. Peterson

Assistant Attorneys General160 East 300 South, Sixth Floor

P.O. Box 140854


Richard P. Mauro

43 East 400 South


Local Counsel for Mr. Lafferty

/s/Robin Stoltze

Legal Assistant



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Index of Attachments

Lafferty v. Crowther

2:07-CV-322 DB

Amended Motion and Memorandum in Support

Of Motion to Stay and Hold Habeas Proceedings in Abeyance

Item

1. Attachment A, Declaration of Aric Cramer

2. Attachment B, Declaration of Michael D. Esplin

3. Attachment C, Declaration of Marissa Sandall-Barrus

Case 2:07-cv-00322-DB Document 373-1 Filed 07/10/15 Page 1 of 5


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Attachment A


2:07-CV-322 DB



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DECLARATION OF ARIC CRAMER

I, Arie Cramer, do declare under penalty of perjury under the laws of the United

States

of

America that the following statements are true to the best

of

my knowledge,

information, and belief:

1 I am currently in private practice in the city

of

St. George, Utah.

2 I was appointed on November 13, 2003 to represent Ronald Lafferty in his state

post-conviction ( PCR ) proceedings, following his second trial and direct appeal.

Grant W.P. Morrison was appointed on the same day. Prior to our appointment,

Ronald Yengich had been appointed as Mr. Lafferty's PCR attorney; however, Mr.

Yengich was required to withdraw from the case


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full months exclusively to the preparation and trial of two cases: State v.

Le

Due

and State v Mark Anthony

Ott

a capital

murder

case. Aelelitionally, shortly after

our appointment to Mr. Lafferty s case, both Mr. Morrison and I were appointed to

represent Troy Kell in his PCR proceedings.

8 Given my demanding caseload, I did not have the time required to properly

investigate and prepare Mr. Lafferty s case prior to filing his PCR petition. At the

time we filed Mr. Lafferty s PCR petition, there was much investigation that still

needed to be completed to adequately develop and present his claims.

9. Additionally, at the time we filed the PCR petition, we had not yet been able to

obtain Mr. Lafferty s complete file or a complete record

of

his case despite our

attempts to do so. The file and record we did have amounted to twenty banker s

boxes and approximately 15 ,000 pages

of

documents, which was too large for us

to review in the time we had to prepare prior to filing the PCR petition.

10

In light of these factors, I should have requested another extension

of

time so that

we could have completed gathering and reviewing the record and completed our

investigation of the issues. There was no strategic reason for not requesting more

time in which to file Mr. Lafferty s PCR petition.

11

Upon my recent review ofmy work on Mr. Lafferty s case, I realize that I

overlooked some important aspects

of

investigation that would have been

necessary to properly present certain

of

Mr. Lafferty s claims.

12. While we raised several constitutional claims related to juror bias

in

the PCR

petition, we never attempted to interview the jurors in Mr. Lafferty s case, which

would have been necessary to develop these claims. I realize now that without

evidence supporting these claims, it was not possible for Mr. Lafferty to get post-

conviction relief on these claims. There was no strategic reason for not

conducting juror interviews in Mr. Lafferty s case.

13. Mr. Morrison and I met with Mr. Lafferty s trial and direct appeal lawyer, Michael

Esplin, on one occasion to pick up Mr. Lafferty s file. I also spoke with Mr.

Esplin

on

the phone on one or two occasions in an attempt to obtain the remainder

of

Mr. Lafferty s file. However, I did not spend any significant amount

of

time

with Mr. Esplin, and never attempted to obtain an affidavit from him about his

work on the case, which would have been necessary to develop several of the

claims we raised in our petition, including claims of ineffective assistance of

counsel at trial and direct appeal. There was no strategic reason for not obtaining

an affidavit from Mr. Esplin about his work on Mr. Lafferty s case.



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14. Additionally,

in

the midst o Mr. Lafferty's PCR proceedings, we discovered that

one

o

the State's experts in Mr. Lafferty's case, Stephen Golding, Ph.D., had

recently changed his position on his diagnosis of situational competence. Dr.

Golding testified during Mr. Lafferty's case that Mr. Lafferty was situationally

competent because he was able to work well with his attorney, making him, in

Dr. Golding's opinion, competent to stand trial. However, Dr. Golding repudiated

the validity o this diagnosis during his testimony in the case o State v. Brian

David Mitchell (Case No. 031901884).

15. While we raised this

as

an issue in the PCR petition, we never attempted to obtain

the transcripts

o

Dr. Golding's testimony in the Mitchell case nor did we ever

attempt to interview Dr. Golding and get a declaration from him stating the change

in his position. I realize now that this would have been necessary to properly

develop this claim. There was no strategic reason for not attempting to get the

transcripts o Dr. Golding's testimony in the Mitchell case and for not attempting

to interview Dr. Golding and getting a declaration from him to submit to the court.

16

Finally, while Mr. Lafferty's PCR appeal was still pending, Mr. Morrison and I

received a letter from Thomas Brunker,

an

assistant attorney general, informing us

that a former employee o the state crime lab, Martha Kerr, had made allegations

that the state crime lab may have tampered with the evidence in Mr. Lafferty's

case. Despite having raised a claim about missing evidence and/or evidence that

had been tampered with, I never followed up on this letter by interviewing Ms.

Kerr or investigating the matter. I also failed to alert the court to the allegation

and request the opportunity to pursue this matter prior to the court ruling on the

appeal. There was no strategic reason for not doing this.

I declare under penalty o perjury under the laws o the United

foregoing is true and correct.

ic Cramer

Executed this

J

day

o

J ' ~

14

in St. George, Utah.



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Attachment B


2:07-CV-322 DB



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DECLARATION OF MICHAEL D. ESPLIN

I Michael Esplin, do declare under penalty

of

pe1jury under the laws

of

the

United States ofAmerica that the following statements are true to the best ofmy

knowledge, information, and belief:

1. I am currently in private practice in the city

of

Provo, Utah, and own my

own law firm in partnership with Gary Weight.

2. I was initially appointed as standby counsel to Ronald Lafferty and his co

defendant, Dan Lafferty, from September through December of 1984. I was

later appointed on September 12, 1985, to represent Ronald Lafferty in his

direct appeal from the conviction of first degree murder and sentence of

death related to his first trial. I subsequently represented

Mr.

Lafferty in his

first federal habeas proceeding and appeal to the Tenth Circuit, which

resulted in his conviction and sentence being vacated.

3.

Upon remand, I was appointed to represent Mr. Lafferty at his second trial as

lead counsel, with Linda Anderson serving co-counsel. I then represented _

Mr.

Lafferty in his second direct appeal, along with Margaret Lindsay.

4. I recently reviewed the record in

Mr.

Lafferty s case. Upon review, I

realized that I overlooked an important constitutional claim that I should

have raised in the direct appeal following

Mr.

Lafferty s second trial. Due to

the high-profile nature ofMr. Lafferty s case, there was pervasive negative

press coverage about Mr. Lafferty and his case that was highly inflammatory

and prejudicial. I filed a Motion for Change ofVenue, prior to Mr.

Lafferty s second trial on June 30, 1994, because I did not think that he

-------could-have a-fair trial iftried-in BtahGounty-given-theextensive-coverage-of------

case that occurred both in the years leading up to the second trial, as well

as at the time of the second trial.

5.

While the trial judge denied our motion, he recognized the possibility

of

prospective jurors being biased against Mr. Lafferty and ordered that a larger

jury pool be drawn. Therefore, the jury venire was comprised of

approximately 200 prospective jurors, instead

of

the normal number of 90

prospective jurors.

6.

During voir dire it became clear that a large percentage of the

jury

pool had

prior knowledge

ofMr.

Lafferty and the case and had already determined



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that he was guilty of the crimes. The juror questionnaires demonstrated that

approximately 80

of

the jury pool had prior knowledge

of

the case and that

60 of those with prior knowledge of the case had formed an opinion that

Lafferty was guilty. While the trial judge initially granted all

of

our

challenges for cause based on prior knowledge

of

the case and bias, once it

became clear that we were running out ofprospective jurors, the judge

deri ied

our motions for cause and we were required to exhaust our

peremptory challenges to exclude biased jurors from the venire.

7. I believe that this resulted in biased jurors being seated in Mr. Lafferty' s

case; and I should have raised this

as

a claim in his direct appeal. I had no

strategic reason for not raising this as a claim

of

error in Mr. Lafferty's

appeal following his second trial.

8 I have also reviewed the transcripts of the penalty phase presentation in Mr.

Lafferty' s case and believe that it was constitutional error not to call at least

one

of

the mental health witnesses we presented during the merits phase of

trial

as

a witness during the penalty phase of the trial. Having at least one

testifying expert during the penalty phase was necessary to explain to the

jurors that they could consider evidence

of

Mr. Lafferty's extensive mental

health issues as mitigating evidence during sentencing even though they had

rejected this evidence as a defense to the crime during the merits phase of

the trial.

9.

n

expert witness also could have offered the jurors a clear explanation

of

what mitigating evidence was and how Mr. Lafferty's mental health issues

were relevant evidence that could serve to mitigate against the imposition of

the death penalty.

10. This would have been especially important because the prosecutor told the

jurors during the penalty phase that while mental health evidence could be

considered mitigating, the jurors had already rejected this during the merits

phase. The prosecutor's statement was misleading because he failed to

explain that even though the jurors rejected the mental health evidence as a

defense during the merits phase, the jurors could still consider it as

mitigating evidence during sentencing.

11.An expert witness could have explained this important distinction to the

jurors. Without an adequate explanation of the concept ofmitigation and



46/50

how Mr. Lafferty s mental health issues could be considered as compelling

mitigation, the jurors could not have given proper effect to this evidence.

12.· I believed that it was error to fail to call at least one o our retained experts

to testify during the penalty phase about the mitigating effect

o

Mr.

Lafferty s mental health issues. There was no strategic reason for failing to

call one

o

our existing experts as a witness during the penalty phasE .

13. I was never contacted by Mr. Lafferty s post-conviction counsel to discuss

either

Mr.

Lafferty or the case following his second direct appeal.

I declare under penalty o perjury under the law o the United States that the

foregoing is true and correct. -

-;',,.'/ ,

Michael D.

:E-splin

Executed this ,/.cr12- day o ~ - - - 2 0 1 5 in Provo, Utah.



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Attachment C


2:07-CV-322 DB



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DECLARATION OF MARISSA

I , Marissa Sandall-Barrus, do declare under penalty of perjury under the laws ofthe United States of America that the following statements are true to the best of my

knowledge, information, and belief:

1. I was first appointed as a mitigation investigator in Ron Lafferty's case inApril 2004, during his state post-conviction proceedings. I was retained byattorneys Aric Cramer and William "Bill" Morrison.

2. When I began the mitigation investigation in Mr. Lafferty's case I wasnotified there was a financial cap of $20,000 for investigative expenses.

3. I was initially informed that I would have with which to work; andthe fact investigator, Karl Hurst, would have the other $10,000 for his

budget. I informed the attorneys that $10,000 was not enough money tocomplete a social history background. Ultimately, I was given a budget of$15,000, leaving $5,000 for the fact investigator.

4. Several months later, Mr. Lafferty refused to work with Mr. Hurst.According to Mr. Lafferty, his visits with Mr. Hurst were spent arguing

over the principles of the Mormon Church.

5. Mr. Lafferty had also Mr. Hurst to check into some specific problemswith the evidence in his case, including the "knife pattern" on the curtainand the possibility that state agents had tampered with the evidence in his

case. To my knowledge, Mr. Hurst never investigated any of these claims,and stopped working on Mr. Lafferty's case by mid-2004.

6. To my knowledge, the attorneys never hired another fact investigator toreplace Mr. Hurst, nor did they consult with another fact investigator aboutMr. Lafferty's case.

7. At the time, I was not a licensed investigator and was only able to assistwith the mitigation investigation.

8. There were many other tasks that I would have accomplished i f I would

have had access to additional funding. I felt it was my responsibility tocomplete the following tasks for his investigation; however, additionalfunding was not requested by the attorneys. I had no other choice but towrite a social history report and complete the investigation based on what Ihad accomplished to that point. The mitigation investigation I conducted inthis case was ended prematurely and was incomplete.



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9. The remaining tasks I would have attempted to accomplish include thefollowing:

• Write a complete timeline of events from the beginning of Mr.Lafferty's life through the present; including all pre-incident eventsand post-incident events.

• Interview Mr. Lafferty's family members, including his mother,children, ex-spouse, siblings, and extended family members, about hisfamily history and personal and family background, and to obtain

information with regard to his significant relationships, including

marriages, children, and the nature and quality of these relationships.Interview Mr. Lafferty's second wife, "Becky."

• Interview Mr. Lafferty's friends and LDS Church acquaintances who

were present in his life before and after his excommunication from the

Church.

• Interview Mr. Lafferty's newly affiliated religious acquaintances from

the School of the Prophets, including Robert Crossfield (The ProphetOnias), Barry Crowther, David and David Coronado.

Locate any and all doctrine available that pertained to the teachings ofthe School of the Prophets.

• Attempt to locate all birth, marriage, death, medical, mental health,

employment, school, military, social security, and criminal records forMr. Lafferty, his parents, siblings, children, and extended familymembers.

•

Spend more time in personal interviews with Mr. Lafferty to gainfurther information about his family history and background.

• Interview the mental health professionals who evaluated and worked

with Mr. Lafferty after his incarceration.

Obtain vital records information regarding his deceased familymembers.Obtain personal items, such as, family photographs, craft work,

certificates, badges, awards, etc.

Research further into Mr. Lafferty's religious beliefs and the religious

beliefs of his parents, including forms of discipline, general rules,

punishments, and the nature of Mr. Lafferty's relationship with his

mother, father, and siblings.Further investigate Mr. Lafferty's relationship with his other relatives.

Locate someone with knowledge of Mr. Lafferty's "minor" alcohol

and drug use.



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As the mitigation specialist, I was responsible for conducting collateralinterviews with family members and others to supplement and corroboratethe information obtained from Mr. Lafferty. Due to the lack of funding,none of these collateral interviews were accomplished.

prepared a social history report based on information obtained from Mr.Lafferty, the legal discovery, news articles, and mental health reports.

I declare, under penalty of perjury under the laws of the United States that the

foregoing is true and correct.

Executed this day of June in Dillon, Montana.


Ron Lafferty motion to stay appeals in federal court

Documents

Transcript of Ron Lafferty motion to stay appeals in federal court