Three Idaho cases sent to high court

BOISE – For the first time in recent history, the Idaho attorney general’s office is asking the U.S. Supreme Court to hear three Idaho cases in one year, officials said.

That means a heavy workload and extra expense for the office, even if the high court declines to hear the cases.

“It’s a real long shot,” attorney general spokesman Bob Cooper said. “There were 8,521 filings in 2005, and only 87 cases were argued. That gives you an idea of the chances.”

But the stakes are high for each of the three cases. Two determine the fates of death row inmates Mark Lankford and Maxwell Hoffman, and the third, involving prison inmate Krispen Estrada, determines whether the state can make psychosexual evaluations mandatory before convicted sex offenders are sentenced.

The Supreme Court has already considered the Lankford and Estrada petitions, Cooper said, but hasn’t released its decisions on whether it will hear the cases. When the court reconvenes Monday, it will issue the list of cases that have been accepted for review by at least four of the nine justices.

If lawyers “haven’t heard anything positive by this Monday, the chances of these things being accepted becomes infinitesimal,” said James Macdonald, a professor at the University of Idaho’s College of Law.

“The attorney general’s office knows the stakes here. It’s almost a matter of statistics that it’s unlikely, given all the cases out there, that you’re going to get the court’s attention,” Macdonald said. “Given the time and the budgetary constraints, the attorney general’s office must feel that the issues are attractive enough.”

Deputy Attorney General Ken Jorgensen is handling the appeal on the Estrada case. For about two months, he spent 90 percent of his time at work preparing the petition, he said.

“On any given day we have 5,000 matters open in the office, with about 400 new criminal appeals in a year,” Jorgensen said. “Having three does tax the resources of the office. If we had a choice of spreading them out, we would, but we’re not given that choice.”

One of Idaho’s petitions concerns a 9th Circuit ruling ordering Lankford be released or retried. Lankford and his brother, Bryan Lankford, were convicted of murdering a Texas couple who had been camping in the North Idaho wilderness in 1983. Bryan Lankford avoided the death penalty by testifying against his brother, while Mark Lankford was sent to death row.

The 9th Circuit found that Idaho law forbade Bryan Lankford’s uncorroborated testimony against his brother, which meant that Mark Lankford’s trial lawyer, Gregory FitzMaurice, denied his client the right to effective counsel when he told jurors they could consider the testimony.

The attorney general’s office maintains that Mark Lankford would have been convicted of murder with or without his brother’s testimony, so the appellate ruling should be overturned.

The 9th Circuit also ordered the state to either release or offer a plea deal to Hoffman, who was sentenced in 1989 in the murder of Denise Williams, a police drug informant in an investigation of one of Hoffman’s associates.

Three men were charged in the murder. One pleaded guilty in exchange for life in prison. Another also avoided the death penalty, agreeing to tell authorities where Williams’ body was.

But Hoffman refused to plead guilty on advice of his attorneys, who told him that Idaho’s death penalty would soon be overturned anyway.

Hoffman was convicted and sentenced to death, and he appealed, claiming his attorneys were incompetent. In a separate appeal, he has claimed he is mentally retarded and so cannot be executed.

The Estrada case asks the high court to decide whether defendants can invoke their Fifth Amendment right against self-incrimination during the sentencing phase of a trial.

Estrada was convicted of choking, battering and raping his estranged wife in front of their five children in 2001 and engaging police in a seven-hour standoff in Twin Falls.

Estrada complained that the psychosexual evaluation he was forced to undergo before sentencing was unnecessary and violated his right against self-incrimination. The state is asking the high court to determine if those evaluations can be required.