The Texas inmate Robert Roberson’s death-penalty appeal could hinge on an argument that his court-appointed lawyers refuse to make. Photograph by Per-Anders Pettersson / Getty

Robert L. Roberson III was convicted in 2003, in Anderson County, Texas, of murdering his two-year-old daughter. In determining his punishment, the difference between a death sentence and one of life in prison hinged on the demonstration of what Texas law calls a “sufficient mitigating circumstance,” such as a mental illness or impairment. It’s likely that he suffered from both. But while the trial record is full of red flags, such as an I.Q. score of eighty-seven in junior high school, a history of organic brain damage from concussions and other traumas, and testimony that he was “very likely” abused as a child, his trial lawyer didn’t do much of an investigation into his mental-health record or his family history. The trial court didn’t do what it should have to document his mental-health history, either. He was sentenced to death.

As an indigent person—he had been in and out of prison during the previous dozen years, for burglary, passing bad checks, and violations of parole—Roberson had qualified for counsel paid for by the government and was appointed a new lawyer to represent him in appealing the case. That lawyer failed to make a claim in state court that the trial counsel was ineffective, and this failure is at the heart of a petition about the case that the Supreme Court is scheduled to consider on Friday. It would be a miscarriage of justice if the Court decided not to take the case and grant Roberson the hearing he seeks.

In 2012, in Martinez v. Ryan, the Court made a groundbreaking ruling that, in a case like this one, in which an inmate is seeking relief under a federal writ of habeas corpus, a federal court can allow the inmate to pursue a claim of ineffective counsel if the lawyer representing him on appeal in state court failed to make that claim. The problem for Roberson is that the lawyer appointed to represent him in the state appeal, James Volberding, was also appointed to represent him in the federal appeal—and failed to point out his earlier failure. As the petition now before the Supreme Court puts it, “Because lead counsel Mr. Volberding was Roberson’s state post-conviction lawyer, a Martinez argument required him to attack his own performance.”

Volberding told me that there was nothing to attack. “We looked for any compelling evidence about Roberson’s character or upbringing that would have led a jury not to give him a death sentence and there was nothing,” he said. But that seems to sidestep the issue, and perhaps to misrepresent it: Volberding’s position is that he refused to present a frivolous claim. But he presented in federal court the claim that he said he refused to present in state court—and the judge turned it away because he had forfeited it, by not raising it during the state proceeding.

In a crudely printed, hand-written note, Roberson asked the federal trial court to appoint him a different lawyer, but the court said no. Roberson then asked Volberding to request that the federal trial court review his claim about ineffective counsel, and made sure that the court knew about that request by sending the court a copy of his letter to Volberding. But neither Volberding nor his co-counsel, Seth Kretzer, asked the court for the review. (Kretzer told me, “The thing about a Martinez claim is that it has to begin with facts showing the deficiency of trial counsel and we didn’t find any.”) When a federal magistrate judge recommended that Roberson’s habeas bid be denied, as Roberson’s petition to the Supreme Court summarizes, the magistrate noted that Volberding and Kretzer did not argue “the inadequacy of state post-conviction representation necessary to excuse its default”—that is, necessary for the court to let Roberson pursue his claim under the Martinez precedent. The magistrate wrote, “The Court would note that Roberson’s federal counsel was also his state habeas counsel, and he had the opportunity to present the claim in the state habeas corpus proceedings; nonetheless, he failed to present the claim until the present proceeding.”

Volberding had an obvious conflict of interest. As the U.S. Court of Appeals for the Fourth Circuit wrote about a similar case, in 2013, it is “ethically untenable” and a violation of a client’s rights under federal law to require that his or her lawyer “assert claims of his or her own ineffectiveness in the state habeas proceedings.” The court found that when a “petitioner requests independent counsel in order to investigate and pursue claims under Martinez,” it is “ethically required”—the court put those words in italics—that he have “qualified and independent counsel.”

As for Kretzer, he had a conflict of interest because his job was to work effectively with Volberding. If Kretzer had brought up with the federal court Volberding’s failure to make the claim about his own ineffective counsel in state court, he would have undermined their business relationship—and, as lawyering goes, that relationship is close. Roberson’s petition to the Supreme Court identifies four cases on the docket of the U.S. Court of Appeals for the Fifth Circuit in the past thirty months in which Volberding and Kretzer have been co-counsels and a fifth case in which Kretzer replaced Volberding. Roberson’s petition notes, “According to that docket, during the past thirty months, Mr. Volberding has not co-counseled in a capital habeas appeal with any attorney other than Mr. Kretzer.”

Charles Herring, Jr., an expert in legal ethics who wrote a treatise on “Texas Legal Malpractice & Lawyer Discipline,” gave his opinion about this relationship and its bearing on the Roberson case, which the petition quotes: “Given that ongoing personal and professional relationship, Mr. Kretzer would appear to have a personal interest in avoiding taking a position that attacked Mr. Volberding or that was otherwise substantially adverse to Mr. Volberding.”

In May of this year, Volberding and Kretzer took a step beyond their failure to represent Roberson’s interests. When Roberson asked the Fifth Circuit to let him represent himself or to appoint him new and independent counsel—a lawyer without any conflict of interest—they actively opposed the motion, writing, “Simply put, he already has what he is asking for.” They claimed that Kretzer made a fresh review of the full case record and “found no claim or potential claim that was not raised, or raised incorrectly, by Mr. Volberding.” Relying on those inaccurate statements, the Fifth Circuit denied Roberson’s motion in June, calling Kretzer “conflict-free counsel” and saying that a “difference of opinion is not grounds for finding a conflict of interest or for appointing a third lawyer.”

If Roberson weren’t indigent, he could fire his lawyers and hire new ones. Because he can’t, Volberding and Kretzer remain “the longtime lawyers for Mr. Roberson,” as they put it in a fifteen-page letter to the Supreme Court, opposing his current appeal, which, as they also said, was filed “by a trio of lawyers who do not actually represent Mr. Roberson.” These lawyers, from The Texas Defender Service, are working on behalf of Roberson for free. Lee Kovarsky, the post-conviction director at the Defender Service, told me, “We helped Mr. Roberson move for an additional attorney because a seriously impaired inmate facing execution has a right, just like any client with money, to have his defenses litigated zealously by lawyers that are not subject to a conflict of interest. He does not lose his right to conflict-free representation just because he is indigent.”