DECLARATION OF DAVID ALAN DARBY

I, David Alan Darby, declare as follows:

1. I am an Arizona criminal defense attorney with 25 years of

experience in all aspects of Arizona capital, criminal, and civil litigation.

2. I am a member of the Arizona and Alaska bars. I am admitted to

practice in the U.S. District Court for the District of Arizona, the Ninth

Circuit Court of Appeals, and the United States Supreme Court.

3. My current practice focuses exclusively on Arizona Capital

Postconviction Relief (PCR) cases. I have been appointed to six such cases:

Scott Clabourne (appointed 09/04/01), Frank McCray (appointed 08/17/10),

Fabio Gomez (appointed 02/19/13), Juan Velazquez (appointed 07/30/2010),

James Cornell Harrod (appointed 08/04/2010), and Vincent Guarino

(appointed 10/13/2016).

4. My prior appellate experience consists of serving as attorney of

record in four death penalty direct appeals and numerous other felony

appeals.

5. I have also served as trial counsel of record in at least one hundred

major felony cases, including seven death penalty cases that went to trial and

twenty-five non-capital homicide cases.

6. I served as a Defender for the City of Tucson, Arizona, from

December 1989, through June 1992.

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 7. In 2009, I served as Special Deputy County Attorney for Apache

County, Arizona, on a contract basis representing the State of Arizona in

appellate and post-conviction relief matters.

8. My CV is attached to this declaration.

The Importance of Postconviction Experience

9. My first postconviction appointment was to represent Scott

Clabourne in Pima County. The Arizona Supreme Court appointed me to that

case in September 2001 pursuant to Rule 6.8(c), despite the fact that I did not

meet the competency requirements of the Rule. The Court acknowledged in

its appointment order that I did not have experience with a postconviction

evidentiary hearing, but found that I had compensating experience as counsel

in capital jury trials.

10. At the time, I had no postconviction experience. I only had trial

experience. Frankly, I did not know what I was doing as a postconviction

lawyer, and my prior experience with trial cases was woefully inadequate to

prepare me for the unique complexities of a capital postconviction proceeding.

As a result, I was significantly unprepared to identify, investigate, and

present possible meritorious claims in a petition for postconviction relief. In

retrospect, there are many things I would have done differently to conduct a

proper investigation and prepare the necessary claims. For instance, I would

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have tried to get second counsel, which I did not do. I would have also tried

to get a mitigation specialist, which I did not have.

11. I attempted to overcome my shortcomings in experience through

hard work and talking with other attorneys. But, evaluating my performance

with the benefit of hindsight, my lack of specific postconviction experience

significantly affected the quality of my representation.

12. In Mr. Clabourne's case, the court rejected the preliminary

petition for postconviction relief that I filed because it was incomplete and

failed to satisfy Arizona Rule of Criminal Procedure 32. I filed a new petition

on March 4, 2002. The court concluded that the petition was also incomplete,

but it granted me leave to amend. I filed further amended petitions that

failed to comply with Rule 32's procedural requirements.

13. After giving me numerous warnings and opportunities to amend

the petition, the superior court dismissed Mr. Clabourne's amended petition

for failure to comply with the rules governing postconviction proceedings. The

court also, in the alternative, denied the merits of the claims I had raised.

The court denied the extra-record claims I raised because they lacked

supporting evidence.

14. Based on that experience—and my many subsequent

appointments—I have a firm belief that postconviction experience is essential

to being able to provide competent representation in capital postconviction

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proceedings. Postconviction work requires an entirely different set of skills

from trial and appellate work—including conducting an extra-record

investigation, examining the effectiveness of counsel below, assembling a

team of experts, and becoming versed in a different body of procedural and

substantive law that governs postconviction petitions. Plus, an attorney must

review the case file, a file that can exceed 100,000 pages.

15. With experience, I have also come to appreciate that the primary

job of state postconviction counsel is to prepare a record for habeas review in

federal court. Even with the strongest case, prevailing in Arizona state court

is an almost impossible task, and a postconviction attorney must understand

the critical need to develop, federalize, and preserve all issues for habeas

proceedings.

16. The learning curve is simply too steep, and the stakes are too high,

for an attorney who has no postconviction experience to be appointed to a

capital postconviction proceeding.

The Appointment Process

17. I did not anticipate taking any additional capital postconviction

cases after representing Mr. Clabourne.

18. Arizona, however, experienced a prolonged shortage of qualified

attorneys who were willing to accept appointments to such cases. To help

alleviate the backlog of cases, I called the Arizona Supreme Court and spoke

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directly with Donna Hallam, the staff attorney responsible for administering

capital postconviction appointments. Ms. Hallam knew who I was. Even

though I had never handled a postconviction case apart from my

representation of Mr. Clabourne, I had extensive trial and appellate

experience.

19. I told Ms. Hallam that I was willing to handle additional capital

postconviction cases, and she expressed an interest and spoke with the Chief

Justice. She notified me that the Court would appoint me to cases on her list

of those awaiting appointment. Within a month in 2010, I was appointed to

represent Juan Velazquez, Frank McCray, and James Cornell Harrod. I was

counsel for Mr. Harrod for only about two weeks, until Mr. Harrod requested

a different attorney. I was counsel for Mr. Velazquez for two years and four

months, until I withdrew from that representation due to irreconcilable

differences.

20. Although I originally filled out an application for appointment

before my representation of Mr. Clabourne, I was never asked to update my

application or provide the Supreme Court with any further information about

my more recent experience or training. And to the best of my knowledge, the

Supreme Court never investigated my performance in Mr. Clabourne's case

before assigning me new cases. The Arizona Supreme Court was desperate

for lawyers to appoint, and I was a live body. That is just how it went for a

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time. There were 20-30 pending cases and Mr. McCray, for instance, had

waited two and a half years for an attorney.

21. Mr. McCray also suffered from serious mental illness. It took me

approximately 18 months to just get him to sit and have a rational

conversation with me, because he was so leery of lawyers after his experience

at trial with defense counsel. The only evidence the prosecution had at trial

was a cold DNA hit, but defense counsel did not retest any of the evidence and

did not scrutinize the forensics. Mr. McCray felt his lawyers had abandoned

him.

22. More than two years after accepting the McCray, Velazquez, and

Harrod appointments, I called Ms. Hallam and offered to take another case.

The Court then appointed me to represent Mr. Gomez. Again, I did not

update my application or my experience, and my qualifications or prior

performance were not independently vetted, to the best of my knowledge.

The Compensation of Appointed Postconviction Attorneys

23. By statute, Arizona limits compensation of appointed

postconviction attorneys to a maximum of $100 per hour.

24. That level of compensation is inadequate to maintain a law

practice. It is also much below what appointed attorneys are paid for capital

trials in Maricopa County, and for capital habeas work in federal court.

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 25. The only way I have. been able to continue to accept state

postconviction appointments is by having almost no overhead expenses in my

law practice. I have no physical office, and I have no administrative support.

26. In my experience, a single postconviction case can blow up a law

practice. It can take years to complete an adequate petition for postconviction

relief. For me, that represents about 3,500 hours of work. That's the amount

of investigation that's required.

27. If Arizona hopes to consistently attract qualified, competent

postconviction counsel, I believe that the state must set a level of

compensation that approximates the federal rate in habeas cases. At the very

least, the state must compensate postconviction lawyers at the same rate that

capital trial attorneys are being compensated by the counties.

Declared under penalty of perjury this / (..) day of December, 2017.

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 DAVID ALAN DARBY
10208 HERON WAY
JUNEAU, ALASKA 99801
520-444-4244
dadarbyAgmail.com

• APPELLATE & TRIAL ATTORNEY WITH 25 YEARS COMBINED EXPERIENCE & TRAINING IN ALL
ASPECTS OF ARIZONA CAPITAL, CRIMINAL AND CIVIL LITIGATION

• ADMITTED TO PRACTICE IN ARIZONA kALASKA

• U.S. DISTRICT COURT FOR THE DISTRICT OF ARIZONA

• NINTH CIRCUIT COURT OF APPEALS

• UNITED STATES SUPREME COURT

SPECIFIC EXPERTISE

APPELLATE & TRIAL LITIGATION

Specially qualifiedpursuant to Arkona Rules of Criminal Procedure, Ride 6,
to represent Arkona capital defendants at the trial, appellate and post conviction levels of litigation.

• TYPES OF APPELLATE AND TRIAL LEVEL CASES HANDLED: Capital crimes, all levels of homicide,
major felonies, and civil matters in urban, suburban, and rural environments. Current practice
emphasis centered on Arizona Capital Post Conviction Relief (PCR) cases.

LICENSES & ASSOCIATIONS

• BAR ADMISSIONS: Arizona (1989); Alaska (2010).

• PROFESSIONAL ASSOCIATIONS: Arizona Attorneys for Criminal Justice (AACJ).

EDUCATION & TRAINING

• JURIS DOCTOR (1989): California Western School of Law, San Diego, California.

• BACHELOR OF SCIENCE: Business Administration (1986), University of Phoenix.

David Alan Darby — Attorney at Law — (520) 444-4244 - [email protected] — 1 of 3

 EMPLOYMENT SUMMARY

LAW OFFICE OF DAVID ALAN DARBY, PLC.

JUNEAU, ALASKA
ATTORNEY AT LAW — 1992 TO PRESENT

Current practice devoted exclusively to representation of capital defendants in post conviction cases in the
State of Arizona. These duties require strong research, writing, communication, and time management skills,
as well as case team building and management of team members.

Prior appellate experience consists of serving as attorney of record in four death penalty appeals, numerous
other felony matters, and three civil appeals, including numerous interlocutory appeals (special actions). These
duties required strong research, writing, communication, and time management skills.

Prior trial experience includes serving as attorney of record in at least one hundred major felonies; seven
death penalty cases through jury trial, and twenty-five non-capital homicide cases in Pima, and other counties
within the State of Arizona.

Other relevant experience includes serving as Special Deputy County Attorney, Apache County, Arizona, on a
contract basis representing the State of Arizona in appellate and post-conviction relief matters in 2009; and,
part-time Magistrate Judge for the City of South Tucson, Arizona, from June, 2000, through May, 2001,
presiding over misdemeanors and other limited jurisdiction matters. Also served as an Assistant Public
Defender for the City of Tucson, Arizona, from December 1989, through June, 1992.

CRIMINAL APPELLATE EXPERIENCE (PUBLISHED OPINIONS)

• State v. Huerta, 223 Ariz. 424, 224 P.3d 240 (App. 2010); in a criminal drug case, trial court reversed for
suppressing evidence.
• State v. Rubio, 219 Ariz. 177, 195 P.3d 214 (App. 2008); in a criminal case, convictions and sentence
affirmed on issues of rejection of a plea agreement and jury selection.
• State A Nichols, 219 Ariz. 170, 195 P.3d 207 (2008); in a death penalty case resentencing, trial court's
decision allowing Nordstrom's alibi evidence affirmed.
• State v. 071Z, 218 Ariz. 149; 181 P.3d 196 (2008), in a death penalty case, convictions and sentence
affirmed.
• Nordstrom v. Leonardo, 214 Ariz. 545; 155 P.3d 1069 (2007); in a death penalty case resentencing, held
that presiding judge had no authority to rule on a Nordstrom's motion for change of judge.
• Nordstrom v. Cruikshank, 213 Ariz. 434; 142 P.3d 1247 (2006); in a death penalty resentencing case,
held that Nordstrom was entitled to a full aggravation phase hearing at resentencing, and that the trial
court had no authority to direct a verdict relative to the aggravating factors.
• Manic v. Dawes, 213 Ariz. 252; 141 P.3d 732 (App. 2006); in a criminal case, held that misdemeanor
Driving Under the Influence is a jury eligible offense in Arizona.

David Alan Darby — Attorney at Law — (520) 444-4244 — [email protected] — 2 of 3

• State v. Nordstrom, 206 Ariz. 242; 77 P.3d 40 (2003); in a death penalty case, convictions affirmed,
sentence reversed based on "Ring" error. See Ring v. Arkona, 536 U.S. 584, 133 L. Ed. 2d 556, 122
S.Ct 2428 (2002).
• State v. Ring, et al. 204 Ariz. 534, 65 P.3d 915 (2003); in consolidated death penalty cases, the
application of Ring v. Arkona, 536 U.S. 584, 133 L. Ed. 2d 556, 122 S.Ct 2428 (2002), to then pending
Arizona capital cases.
• State v. Nordstrom, 200 Ariz. 229, 25 P.3d 717 (2001); in a death penalty case, convictions and sentence
affirmed.
• State v. Rodriguez,192 Ariz. 58, 961 P.2d 1006 (1998); in a death penalty case, held that convictions and
sentence reversed for trial court's failure to-instruct the jury on alibi.
• State v. Spreiq„ 190 Ariz. 129, 945 P.2d 1260 (1997); in a death penalty case, convictions and sentence
affirmed.
• State v. SaeR, 197 Ariz. 487, 4 P.3d 1030 (App. 2000); in a homicide case, trial court reversed for
granting a new trial.
• State v. Villa, 179 Ariz. 486, 880 P.2d 706 (App. 1994); in a criminal case, conviction and sentence
affirmed.

CIVIL APPELLATE EXPERIENCE (PUBLISHED OPINIONS)

• Hounshell v White, et al., [Hounshell II], 220 Ariz. 1, 202 P.3d 466 (2008), resolved in favor of plaintiff
whether elected Sheriff was ultimate employee appointing authority for purposes of imposing
discipline.
• Hounshell v. White, et al, [Hounshell 1], 219 Ariz. 381, 199 P.3d 636 (2008), resolved in favor of plaintiff
whether County Board of Supervisors had authority to remove a duly elected Sheriff for failure to
post a surety bond.

OTHER APPELLATE EXPERIENCE

• Logan v. Walker, 2009 Ariz. App. Unpub. LEXIS 454, resolved in favor of Appellee Walker whether
the trial court's decision regarding allocation of parenting time was proper.
• Attorney of record in 28 criminal appeals in the Arizona Court of Appeals resulting in unpublished
opinions. (Per Lexis 2017).

REFERENCES

Michael B. Whiting Larry. A. Hammond, Esq. Jeffrey Sparks

Apache County Attorney Osborne - Maledon Asst. AZ. Atty. General
P.O. Box 637 2929 N. Central 21" Fl. 1275 W. Washington
St. Johns, AZ. 85936 Phoenix, AZ. 85012-2793 Phoenix, AZ. 85007
(928) 337-7560 (602) 640-9000 (602) 542-8583

Additional References Available Upon Request

David Alan Darby — Attorney at Law — (520) 444-4244 -. [email protected] — 3 of 3