This report, written when Howard’s public defenders sought to withdraw from his case, is updated as new documents are presented
A motion filed last week by federal public defenders is unusual in itself. It also places several attorneys and a federal judge in an unusual situation.
On Oct. 1, I posted the article below, titled “Tug of War,” about the battle that arose after Howard asked his federal public defenders to add Little Rock attorney Patrick Benca to his team. The article chronicled Howard’s attorneys’ successful legal fight to keep that from happening.
But on Oct. 2, the day after that article appeared, the federal public defenders sent Howard a letter notifying him that they were asking to be removed from his case. They cited what they deemed to be Howard’s loss of “trust” in them and his belief that they had “violated the canons of professional ethics.” Included with the letter, as evidence of their claim, were copies of my article and a letter that Howard had written to U.S. District Judge Brian Miller concerning the situation.
That same day, they filed a motion in federal court, seeking to be removed as Howard’s attorneys. The motion, signed by Jenniffer Horan, Scott W. Braden and Josh Lee of the Arkansas Federal Public Defenders Office, was unusual in several ways.
First, it was unprecedented in this area. As a footnote to the motion noted, “the Federal Defender Office has never encountered a situation like this, and therefore, has never filed a motion to withdraw such as this one.”
The motion also was vague, indicating only that ”events” that had caused the “dissolution of the attorney-client relationship” the attorneys had with Howard. “Specifically,” it said, “the interference of third parties in this matter has resulted in an irreconcilable conflict” between the federal public defenders and Howard, making it “impossible” for them to continue working with him.
It stated that a conflict of interest had arisen with regard to Howard because there now existed “a significant risk” that the office’s representation of him would be “materially limited,” but the motion was silent as to what had created the risk. Rather, it suggested that, ”Undue specificity regarding the nature of the conflict should not be required because disclosing specific details about the nature of the conflict herein places appointed counsel at ‘risk of violating, by more disclosure, [their] duty of confidentiality” to Howard.
The motion to withdraw was also unusual in that it followed by less than two weeks an order by Judge Miller in which he acceded to the appointed attorneys’ requests to keep Benca off Howard’s case. After Miller issued that ruling, Benca filed a motion asking that he reconsider it. However, as of this posting, Miller had not responded either to Benca’s request to reconsider or to the federal public defenders’ subsequent request to withdraw.
The motion to withdraw places all parties in an unusual situation. The federal public defenders, who recently won an Arkansas Supreme Court ruling that may lead to a new trial for Howard and who have a petition on Howard’s behalf pending before the U.S. Supreme Court, are asking to withdraw from his case at a critical hour.
Benca, who agreed to represent Howard without fee at a new state trial if he is granted one, has been rebuffed by both the federal public defenders and the federal judge. At Howard’s request, Benca had asked to enter the case at this stage in order to avoid further delays if a new trial is ordered.
Judge Miller, who just agreed to keep Benca off the case, must now rule on whether he should honor the federal public defenders’ request to let them off the case.
And Howard, who has maintained his innocence for the 13 years he’s been on death row, now has appointed lawyers who don’t want to represent him and an attorney he sought as an addition to his team barred from representing him.
Miller may hold a hearing to determine Howard’s legal future. For now, it hangs, like his life, in limbo.
I believe this situation will have far-reaching effects on the practice of law in Arkansas. For anyone interested in the documents that underlie this recent series of events, I’ve posted them below.
All documents here are either public record and/or were provided by Benca to Howard, who sent them to me. These records supplement the chronology I outlined in the “Tug of War” article posted here last week (Item 17 below).
Background: Posted below are an advocacy statement on behalf of Howard, two articles I’ve written about his case for the Arkansas Times, this year’s Arkansas Supreme Court order, and Howard’s pending petition before the U.S. Supreme Court.