Free Motion for Reconsideration - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I, SCOTT F. ALLEN, do state and declare as follows: 1. 2. 3. 4. 5. I am a licensed attorney in the State of Arizona. My primary area of practice is criminal law. I have been an attorney since 1985. I have served as a representative of criminal defendants in over 1,000 cases. I have served as a legal representative for people accused of crimes in which v. DECLARATION OF SCOTT F. ALLEN DORA SCHRIRO, et al., (Assigned to the Hon. David G. Campbell) Respondents. JAMES ERIN McKINNEY, Petitioner, DEATH PENALTY CASE NO. CV 03-774-PHX- DGC UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA MATHEW & MATHEW, P.C. IVAN K. MATHEW, ESQ. (SBN: 011610) SUSAN T. MATHEW, ESQ. (SBN: 012916) 1850 N. Central Ave., Suite 1910 Phoenix, Arizona 85004 Tel: (602) 254-8088 / Fax: (602) 254-2204 e-mail: [email protected] [email protected] Attorneys for Petitioner, JAMES ERIN McKINNEY

the death penalty may be imposed as punishment. 6. During 1991 through 1993, I served as attorney for James Erin McKinney, in

the capital case of State v. McKinney.

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7. During the course of my representation, I sought a severance in the case from

the co-defendant, Michael Hedlund, (State v. Hedlund) as I believed my client, James McKinney, could not have a fair trial. 8. Over my objections, the trial judge in the case ordered my client to trial with

the co-defendant, Mr. Hedlund, utilizing a dual jury. 9. 10. I appealed this decision to the Court of Appeals, State of Arizona. The Court of Appeals agreed with me and ordered the Defendants not to be

tried together. Hedlund v. Superior Court, 171 Ariz. 566; 832 P.2d 219. (App.Div. I 1992.). 11. The decision of the Court of Appeals was overturned by the Arizona Supreme

Court, Hedlund v. Sheldon, 173 Ariz. 143; 840 P.2d 1008 (Ariz. 1992.). 12. Had I been informed that Mr. McKinney had not planned the murder of Mr.

Jim McClain, I would have been able to argue to the Supreme Court that my client would be available to testify in his defense regarding the McClain case at trial. 13. In addition, had I known that my client, James McKinney, did not participate

in the act of killing Mr. McClain, I would have been able to present this information during the sentencing phase. 14. Based upon my experience as a criminal lawyer having served as counsel in

capital cases, this would have allowed me to present information to the judge for evaluation during the sentencing phase. 15. I believe the fact that my client was not involved in the murder of Mr.

McClain. This is extremely important information which could have made a difference in the sentence received by Mr. McKinney. 16. I was unable to present this important information because I did not have this

information during the trial or at the time of sentencing.

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Scott F. Allen 17. I was unable to place my client on the stand to testify in his own defense based

upon the dual jury dual murder format to explain his innocence. 18. I was also unable to place my client on the stand to testify in his own defense

during sentencing. I declare the above to be true and correct to the best of my knowledge. Executed this ____ day of February, 2006 at Phoenix, Arizona.

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