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The Arizona Execution Cases -- Abandonment

The Ninth Circuit issued three opinions in Arizona capital cases yesterday: Towery v. Ryan, Moormann v. Schriro, and Towery v. Brewer.

When the US Supreme Court first took up Maples v. Thomas, I was worried that if Maples won lawyers for capital inmates would start routinely shoehorning their garden-variety criticisms of the effectiveness of prior habeas counsel into "abandonment" claims and that some courts might actually buy that.  The first part of that concern has indeed come to pass.  The second hasn't, yet.  In Towery v. Ryan, Towery's prior counsel abandoned on habeas a weak claim that had been rejected by the Arizona Supreme Court.  That is entirely proper.  The US Supreme Court has expressly held in a capital case that winnowing out weak claims to focus on the stronger ones is not only permitted, it is quality advocacy.  The Ninth Circuit does not mention the latter point, but it does hold that leaving out the weak claim is not abandonment, which is sufficient to distinguish MaplesMoormann v. Schriro is similar on the abandonment issue.  Moormann further claimed that he is retarded now, even though he wasn't before.  The Ninth correctly rejects the claim, noting that onset before 18 is a standard condition for a retardation diagnosis, and Arizona is well within its rights to insist on that criterion.

Even though the abandonment claims were rejected, a lot of unnecessary time and resources went into rejecting them.  Congress's strict, and mostly successful, toughening of the successive petition rule is endangered by the creation of new issues to litigate.

I will address the lethal injection claim in the next post.

Moormann was executed 10:23 to 10:33 MST, Michael Kiefer reports for the Arizona Republic.

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