Frivolous Pleadings for Murderers at Taxpayer Expense

Raymond Mata is very justly sentenced to death for the murder of 3-year-old Adam Gomez. (I have reserved the stomach-turning facts for the end of the post.) He has the right to government-paid counsel to make his defense, but shouldn’t the government insist on some kind of threshold of non-frivolousness before it forks over taxpayers dollars? Do we really need to pay for complete garbage? That is exactly what Nebraskans have paid for in Mata’s latest petition to the U.S. Supreme Court.

Like far too many children, little Adam was the target of his mother’s violent boyfriend.  Mata murdered him 21 years ago this month.

Proceedings to Date

Under Nebraska law at the time, Mata was convicted by a jury and sentenced by a panel of judges. The U.S. Supreme Court had reviewed and approved this method of capital sentencing in multiple cases, including Walton v. Arizona (1990). Between the sentence and the appeal, the high court changed its mind and overruled Walton in part in Ring v. Arizona (2002). The Nebraska Supreme Court affirmed the conviction but vacated the sentence the next year and remanded for a new sentencing proceeding complying with Ring.

In its most recent decision on the case, 304 Neb. 326, the Nebraska Supreme Court notes that “[o]n remand, a jury unanimously found the existence of the aggravating circumstance of exceptional depravity” — the finding needed to make Mata eligible to be considered for the death penalty. Indeed, the case is a textbook example of that circumstance if ever there was one. See the end of the post. In accordance with Nebraska’s amended post-Ring law, “a three-judge panel then heard evidence on mitigating circumstances and sentencing disproportionality. The panel found no statutory mitigating circumstances, considered five nonstatutory mitigating circumstances, and concluded the mitigating factors did not approach or exceed the weight of the exceptional depravity finding.” Mata was resentenced to death.

In 2008, the Nebraska Supreme Court affirmed the sentence but held electrocution to be an unconstitutional method of execution. The legislature adopted lethal injection as the method the next year. Mata then filed a motion for post-conviction relief, and the Nebraska Supreme Court in 2011 ordered the trial court to appoint counsel and hear the petition.

In 2015, the Nebraska Legislature passed a bill to repeal the death penalty over the Governor’s veto. See this post.

Nebraska has the referendum, and supporters of justice had 90 days before the law took effect to gather about 57,000 signatures to put it on the ballot. They made it by four days. See this post and this post. The voters rejected the repeal bill in a landslide. See this post.

Mata amended his post-conviction review petition to add claims against the referendum. The petition was rejected by the trial court, and the Nebraska Supreme Court unanimously affirmed.

Nebraska Supreme Court Decision

Mata was represented in the Nebraska Supreme Court by the Scotts Bluff County Public Defender at the time. The PD made four claims in that court.

The first claim related to the venire seeing Mata in shackles briefly during jury selection, a claim already rejected in the direct appeal. Mata claimed that the subsequent Supreme Court decision in Deck v. Missouri required reconsideration, but it does not.

The second claim related to Nebraska’s choice to maintain sentencing by a panel of judges after a jury makes the eligibility determination. That was a reasonable issue to brief at the time, given the erroneous acceptance of such a misinterpretation of Hurst v. Florida by the Florida and Delaware Supreme Courts. The Nebraska court rejected the argument, though, and after McKinney v. Arizona we know that is correct. See this post.

The third claim involves the referendum:

Mata assigns that his constitutional rights against cruel and unusual punishment were violated and that he was deprived due process of law by L.B. 268 and its repeal by public referendum, which constituted an impermissible bill of attainder. Central to all three constitutional claims is the proposition that L.B. 268 changed his sentence to life imprisonment and the public referendum changed it back to death.

Contrary to this proposition, however, L.B. 268 never went into effect. L.B. 268 was passed in May 2015 and was set to take effect on August 30.

In other words, the constitutional claims, whether based on the federal or state constitutions, have a premise in state law, and the Nebraska Supreme Court decided against the state-law premise. Its decision is the final word on state law. Federal courts, even the U.S. Supreme Court, are bound by it.

The fourth claim is a separation of powers claim which is purely state law. The court rejected it.

All of these claims are well within the bounds of vigorous advocacy that we expect defense counsel to provide. I have no criticism of the defense at this stage. It is what comes next that prompts me to write this post.

The Certiorari Petition

Scotts Bluff County now has a different Public Defender, Harry A. Moore. On March 16, 2020, he filed a certiorari petition in the U.S. Supreme Court in Mata v. Nebraska, No. 19-8045.

Mr. Moore at least had the sense not to assert the Sixth Amendment theory repudiated by McKinney. He asserts instead a confused and poorly explained claim of a due process violation based on a theory that “LB 268, the death penalty repeal bill, was not an ‘act of the Legislature’ subject to repeal by referendum.” The reason it was not, he says, is that it was passed over the governor’s veto rather than being signed by him or allowed by him to become law without his signature. The notion that a bill passed over the governor’s veto is not an “act of the Legislature” is based solely on a out-of-context quote of language from a 54-year-old case where that question was not at issue.

This remarkable theory of purely state law is then bootstrapped into a federal due process violation by a bare citation to Hicks v. Oklahoma, 447 U.S. 343 (1980) without even a point page, much less an explanation.

In Hicks, the defendant had an undisputed state-law right to have a jury determine his sentence in a range with a 10-year floor. His jury had been incorrectly instructed that 40 years was the minimum under a statute subsequently declared unconstitutional. The U.S. Supreme Court held that the state courts had denied him due process of law by not allowing the jury to choose in the range that state law indisputably provided.

Exactly how Hicks applies to a claim where the defendant’s state-law argument is not only disputed but far-fetched and was never presented to the state court at all requires considerable explanation. The petition contains none. Does Hicks open every dispute of state law to review by the U.S. Supreme Court? Of course not.

But wait, there’s more. Not only was the state-law premise of the argument never presented to the state courts, but the federal constitutional claim that Mata’s present counsel wants the U.S. Supreme Court to decide was never presented to the state courts. He admits this.

It appears to current counsel (different from previous counsel below) that the U.S. Constitutional violations raised herein were not presented to or ruled upon by either the postconviction court of the Nebraska Supreme Court (although neither court had jurisdiction to “recognize” the death penalty).

Of course the state courts had jurisdiction. The issue he now seeks to raise is not jurisdictional. What is jurisdictional is the defect he admits. “Final judgments or decrees rendered by the highest court of a State in which a decision could be had, may be reviewed by the Supreme Court by writ of certiorari … where any title, right, privilege, or immunity is specially set up or claimed under the Constitution … of … the United States.” 28 U.S.C. §1257(a) (emphasis added). Making the claim in the lower court is an essential requirement for the U.S. Supreme Court to have jurisdiction to consider it. See Howell v. Mississippi, 543 U.S. 440, 443-444 (2005).

How does defense counsel claim to get around this? “Previous counsel’s failure to address and preserve these issues has deprived Petitioner of his right to constitutionally effective counsel under the Sixth and Fourteenth Amendment to the U.S. Constitution.” How many ways is this dead, flat wrong?

First, Petitioner has no constitutional right to counsel on postconviction review. See Pennsylvania v. Finley, 481 U.S. 551, 555 (1987).

Second, failure to make a far-fetched claim is not ineffective assistance. Quite the contrary, ” ‘winnowing out weaker arguments on appeal and focusing on’ those more likely to prevail, far from being evidence of incompetence, is the hallmark of effective appellate advocacy.” Smith v. Murray, 477 U.S. 527, 536 (1986). Defense counsel in the Nebraska Supreme Court quite appropriately focused on arguments much stronger than the one present counsel is asserting, even though they were unsuccessful. The ease with which defense lawyers accuse each other of ineffective assistance these days is truly appalling.

Third, ineffective assistance of counsel can make an exception to the procedural default rule in habeas corpus in some cases, but the jurisdictional prerequisite of §1257 is a different matter. The Supreme Court has no authority to expand its appellate jurisdiction by making exceptions to the limits Congress has imposed.

This petition is more than just meritless. It is so obviously deficient in so many ways as to be nothing but a waste of time and resources for everyone concerned.

The defense bar is constantly griping about being insufficiently funded. How can they complain about having insufficient resources to do their jobs when they squander resources on garbage like this?

In any legislative consideration of indigent defense, we need some serious thought given to a mechanism to place effective controls on frivolous or abusive pleadings by government-funded defense lawyers. The system now in place is not doing the job.

The Justice of the Case

If you are squeamish, stop reading here.

But what really burns me is the last sentence of the petition. “If not corrected, an egregious miscarriage of justice will be allowed to persist.”

Raymond Mata’s sentence of death is “an egregious miscarriage of justice”? Here is what he actually did to little Adam, from the first appeal, 266 Neb. 668, 675-676:

Police searching Monica’s residence found human remains in the basement room occupied by Mata. Hidden in the ceiling was a package wrapped in plastic and duct tape, which contained a crushed human skull. The skull was fractured in several places by blunt force trauma that had occurred at or near the time of death. The head had been severed from the body by a sharp object, at or near the time of death. No evidence of strangulation could be found, although strangulation, smothering, and blunt force trauma could be neither ruled in nor ruled out as the cause of death.

In the kitchen refrigerator of the residence, police found a foil-wrapped package of human flesh. Mata’s fingerprint was found on the foil. Human remains were also found on a toilet plunger and were found to be clogging the sewerline from the residence. Human flesh, both cooked and raw, was found in the dogfood bowl and in a bag of dogfood. Human bone fragments were recovered from the dog’s digestive tract.

All of the recovered remains were later identified, by DNA analysis, as those of Adam. Adam’s blood was also found on Mata’s boots.

The only miscarriage of justice in this case is that this monster is still alive.