PROVO An attorney who argues he's incompetent to defend a death row inmate has been let off the case but not because he's not qualified, the judge ruled.
"Should a trial court judge allow counsel of record to remain in the case who repeatedly, candidly and unabashedly represents on the record that he is incompetent and cannot effectively assist his client?" asked 4th District Judge Lynn Davis in a ruling released Wednesday afternoon.
Two paragraphs later, Davis wrote that his decision to release attorney Mark Moffat from the death-row case of Douglas Carter is clear it's not because of Moffat's self-proclaimed faults and failings; Davis actually praised Moffat's eloquent arguments and keen answers.
But rather, it's because Moffat's statements were "so global and outrageously candid that they potentially affect the attorney-client relationship," Davis wrote.
Moffat, who said he appreciates Davis' comments, is grateful that Carter will still get a qualified attorney. Carter was convicted and sentenced to death for the 1986 murder of Eva Olesen of Provo.
That qualified attorney is Moffat's co-counsel, Leo Griffard of Idaho, who's been somewhat in the shadows. He will remain as Carter's attorney, despite his requests to also be released.
Griffard has the background for complicated death-row appeals that Moffat argued he lacked.
When contacted by the Deseret Morning News Thursday, Griffard said he didn't want to comment. However, during argument on Moffat and Griffard's motion to withdraw in October 2007, Griffard said it was never his intention to take a lead role in the case but to serve as consultant to Moffat.
Plus, like Moffat, he argued the case was a financial burden, especially when it required out-of-pocket travel expenses from Utah to Idaho.
"I'm not here making this request for any reason other than it's the right thing to do for Mr. Carter, but it's also for me," Griffard told Davis last October. "It's a matter of grave and serious hardship that this causes me to continue to work on the case."
Moffat, whose feelings about the ruling are mixed, said he had already promised to help a future attorney get up to speed on the case.
"I suppose it's a win for Mr. Carter," Moffat said. "He needs qualified counsel to represent him, so in that sense, I think that Judge Davis did the right thing in trying to get somebody on board that knows this area of the law to represent Mr. Carter's interest."
But before the case can proceed, Griffard, who's a licensed attorney in Idaho, must have a sponsoring Utah attorney. That sponsoring attorney doesn't have to be a specialist in death-row cases.
Thomas Brunker, deputy Utah attorney general, said he will argue before Davis that if another attorney cannot be found in 60 days, Carter's case must be dismissed, or he must proceed on his own, according to a new bill passed in Utah's 2007 legislative session.
"The bottom line is that this ... removes another one of the roadblocks to the case going forward," Brunker said. "I'm hoping this gets it back on track."
Carter, 52, has been on death row for more than 20 years, after being convicted and sentenced and denied on several appeals.The case before Provo's 4th District Court, and the one Moffat was just removed from, is essentially a lawsuit against the court, alleging there was something wrong with his original trials more than 20 years ago.