Death Penalty Upheld for Homer Roseberry Despite Ineffective Counsel

The Arizona Supreme Court upheld a 2003 death-penalty decision for Homer Ray Roseberry, an Arizona resident convicted of first-degree murder in the death of Fred Fottler. (In October, 2000, Roseberry agreed to transport about 1,000 pounds of marijuana in his motor home for a drug cartel, while secretly planning to steal the drugs and resell them. But before the trip he was instructed by the cartel to bring along Fottler. This clearly didn't comport with the plan, so he killed Fottler as he slept in the motor home and dumped his body by the highway.)

The opinion, filed this morning, threw out Roseberry's claim that his previous lawyers did a poor job representing him, and instead concluded that Roseberry “suffered no prejudice from any deficient performance by appellate counsel.”

After Roseberry's initial trial ended in a guilty verdict and a death sentence, his case went to the state Appellate Court. “The appellate attorney realized after he filed his initial brief that he had left out an incredibly important legal point, and the court refused to let him amend it,” says Matthew Newman, Roseberry's current attorney. That important point, he goes on to explain, was no small detail.

Here's what happened: In 2002, right before Roseberry went to trial: The U.S. Supreme Court decided in Ring v. Arizona that a person could be sentenced to death by a jury only, not a judge. According to Newman, Roseberry's case was the first one the assigned judge had presided over during this new era of law, and he gave the jurors faulty instructions for how to consider evidence. Instead of telling them to consider all mitigating evidence — which, as Newman explains, “is anything whatsoever that might make a juror decide this guy doesn't deserve the death penalty” — the judge told them to only consider mitigating evidence that had a direct link to the case. (The legal term for this is causal nexus.)

To be clear, Roseberry was not barred from presenting his mitigating evidence, but the jury was instructed not to consider it unless it had a direct effect on the case.

The detail Roseberry's appellate attorney forgot to point out is that a year after the jury returned a death verdict, but two months before his case went to the appellate court, the decision in a different case, Tennard v. Dretke, found that instructing a jury to only consider some evidence violates the Eighth Amendment. Hence the basis for Roseberry's most recent appeal was that his appellate attorney messed up big time by not pointing this out and that Roseberry should be entitled to a new penalty phase hearing.

The Supreme Court “agreed with my argument that [jurors] have to be told that they need to consider all mitigating evidence,” Newman says, but then the court claimed it performed its "own independent review of the case" and maintained that Roseberry deserved the death penalty.

“Our independent review of Roseberry's death sentence considered all the mitigation evidence presented, without requiring a causal connection to the crime, and we found it not sufficiently substantial to call for leniency,” the court writes in today's decision.

So, to summarize, the Arizona Supreme Court said that even though Roseberry's previous attorney had made a mistake, the court independently looked over the entire case and decided capital punishment still was appropriate. “Any error in juror instruction was cured when this court considered all mitigation evidence [and] independent review serves as a constitutional means to cure sentencing errors,” the judges write.

During Roseberry's initial trial, he presented 10 mitigating factors, five of which were considered causally connected to the case — that he could not “appreciate the wrongfulness of his conduct or...conform his conduct to the requirements of the law;” that at the time of the crime, he was “under unusual and substantial duress;” that he “was only a minor participant in the murder;” and that he couldn't have “reasonably” known beforehand “that his conduct [shooting a sleeping person three times at close range] would [kill the person;] and that he was 56 at the time of the crime.

The other five mitigating factors, which the jury was told not to consider, include “his love of family and his good character; his medical conditions, including diabetes, hypertension, sleep apnea, asbestosis, depression, and two prior comas; mental impairment; the death of his two young children; and his lack of criminal history.”

“In this case, the evidence was overwhelming that Roseberry killed Fottler so that he could steal the load of marijuana,” the court writes today. “We therefore conclude that the [previous] court did not abuse its discretion in denying relief [to Roseberry's appeal] because any deficiency in appellate counsel's performance was cured by this court's independent review.”

There is currently no date set for Roseberry's execution, and if it does advance in court, which Newman thinks is likely, the defense will file a stay of execution for the duration of the proceedings.

“If your lawyers do something wrong, the decision should be overturned [and the evidence reconsidered],” Newman says. 
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Miriam is a staff writer at Phoenix New Times.
Contact: Miriam Wasser