2013 Opinion No. 128
Appeal from the District Court of the Fourth Judicial District of the State of Idaho, Ada County. Hon. Thomas F. Neville, District Judge.
The district court's order appointing Keith Roark as independent conflict counsel and ordering the State Appellate Public Defender to pay for Roark's services is vacated.
Sara B. Thomas, State Appellate Public Defender, Boise, for petitioner. Ian Hall Thomson argued.
Hon. Lawrence G. Wasden, Attorney General, Boise, for respondent. LaMont Anderson argued.
This is a permissive appeal arising from two interlocutory orders entered by the district court in Erik Virgil Hall's case seeking post-conviction relief from his death sentence for the murder of Cheryl Hanlon, in which Hall alleges ineffective assistance of trial counsel.
I. FACTUAL AND PROCEDURAL BACKGROUND
Hall has been convicted and sentenced to death twice. First, for kidnapping, murdering, and raping Lynn Henneman (Hall I) and, second, for the rape and murder of Cheryl Hanlon (Hall II). At the time Hall's petition for post-conviction relief was pending in Hall I, his trial in Hall II was underway. During the overlap of Hall I and Hall II, there were numerous communications between Hall's trial attorneys, Rob Chastain and Deborah Kristal, representing him in Hall II, and Mark Ackley and Paula Swensen from the State Appellate Public Defender's (SAPD) office, handling Hall's post-conviction proceedings in Hall I. It is the communications between Ackley, Swensen, and Hall's trial counsel that forms the basis for a potential conflict of interest in this case, given that Hall alleges ineffective assistance of trial counsel in his second petition for post-conviction relief. 
On February 14, 2008, Hall filed a petition for post-conviction relief under I.C. §§ 19-2719 and 19-4901 in connection with his Hall II conviction. On June 29, 2010, the SAPD, Hall's post-conviction counsel, filed an Ex Parte Notice of Possible Conflict of Interest with the district court.
The Ex Parte Notice stated that the SAPD had "cooperated with trial counsel in Hall II by sharing testing and expert information obtained in Hall I." Additionally, the Ex Parte Notice stated "[a]fter an internal review, it was determined that independent counsel should be hired to independently evaluate the conflict. Dennis Benjamin has been contacted and has agreed to evaluate the conflict and advise Mr. Hall whether or not the conflict should be waived."
With no knowledge of the SAPD's Ex Parte Notice, the State filed a Motion for Inquiry into Possible SAPD Conflict on July 30, 2010. The district court heard oral argument on the State's Motion on August 26, 2010. At the hearing, the court requested that the SAPD supplement its original Ex Parte Notice to include a more detailed factual basis of the SAPD's possible conflict. In response, the SAPD filed an amended Ex Parte Notice on August 30, 2010.
The Affidavit of Dennis Benjamin was filed with the district court on August 30, 2010. Benjamin's affidavit provides, "I have been hired by the [SAPD] to determine whether they have a conflict of interest in representing Erick Hall and to advise Mr. Hall of my findings. In this matter, my client is Mr. Hall." Benjamin concluded that the contacts between the SAPD and Hall's trial counsel did not create a conflict of interest. Benjamin stated, "While it is clear that the lawyers communicated with one another about Mr. Hall and shared case related information, all four lawyers and investigators state that the SAPD did not give trial counsel advice on how to proceed in Hall II."
Although Benjamin conducted an extensive inquiry into whether the SAPD was conflicted, the district court did not question Benjamin about his findings. Rather, the court believed that Benjamin was too closely aligned with the SAPD to be truly independent, stating that "[a]lthough the court holds Mr. Benjamin in high regard, he is not the Court's choice of independent counsel and would not have been this ...