Legal Ethics

Lawyer's deficient capital murder defense requires sanction, ethics board says


A Kansas lawyer accused of “a cornucopia of … ineptness” by his capital murder client is fighting an ethics board’s recommendation that he be disciplined for his conduct in the case.

Lawyer Ira Dennis Hawver disputes the March 14 findings by the Kansas Board for Discipline of Attorneys, the Topeka Capital-Journal reports. Hawver had never defended a capital murder case when he represented Phillip Cheatham Jr., whose capital conviction was overturned because of ineffective assistance of counsel in a January 2013 Kansas Supreme Court opinion.

The Kansas Board for Discipline of Attorneys split on its recommended sanction, the story says. Two members recommended disbarment, and one recommended indefinite suspension.

Hawver says in his answer to the hearing board report that he did not violate ethics rules “to a degree requiring discipline,” the Capital-Journal says.

According to the Kansas Supreme Court opinion overturning Cheatham’s conviction, Hawver told jurors Cheatham had a previous voluntary manslaughter conviction and referred repeatedly to his client as a “professional drug dealer” and “shooter of people.” In the sentencing phase, he said that whoever committed the crime deserved to die.

Hawver had tried only three murder cases before representing Cheatham, and none were death penalty cases. Hawver said in an affidavit his $50,000 fee in the case would be paid only if there was an acquittal, but he later recanted and said the fee would be owed in any event. The court said the fee arrangement was a conflict of interest, even if it was a flat fee, because Cheatham had a disincentive to actively investigate the case.

Hawver was running for governor as he prepared for Cheatham’s case, sometimes appearing at political events dressed in costume as Thomas Jefferson to reflect his views about the original underpinnings to the U.S. Constitution, the supreme court said. He admitted spending only 40 to 60 hours on case preparation and said he couldn’t spend full time on the case because he “had to earn a living.” Nor did he hire an investigator to interview potential defense witnesses or pursue possible leads, the court said.

Hawver admitted to the ethics board that he didn’t meet ABA standards for counsel in death penalty cases “because I wasn’t even aware of ABA standards when I tried this case,” according to a prior story by the Topeka Capital-Journal.

The disciplinary board said Hawver’s representation caused actual injury to the administration of justice. According to the Capital-Journal account, the board found that Hawver wasn’t competent to represent Cheatham and he didn’t appreciate the difference between trying a murder case and a capital murder case. He also failed to track Cheatham’s cellphone location to support his alibi.

Cheatham “was exercising his rights to select counsel of his choice,” Hawver said in his answer to the board’s final hearing report. Hawver also maintains the state cannot “lawfully censor, punish, or deprive” him of a property right in the practice of law for his defense of Cheatham, the Capital-Journal says.

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