When Jamale D. Townsell filed a petition from prison seeking postconviction relief, he argued his trial lawyer was constitutionally ineffective for failing to properly investigate DNA evidence that would have called his responsibility for a 2013 bank robbery into question.

The state’s Court of Appeals rejected his petition, reasoning Townsell had not shown how the uninvestigated DNA evidence would have changed the outcome of his criminal case, or if a DNA expert was “available and willing to testify.”

But during oral arguments to the Colorado Supreme Court on Tuesday, multiple justices expressed the same concern: Why should an incarcerated, self-represented defendant be turned away from the courthouse for failing to perform an investigation he could not possibly undertake himself?

“What would have been enough? What should Mr. Townsell have said here?” asked Justice Richard L. Gabriel.

“For somebody from prison, how do they do that?” added Justice Brian D. Boatright. “That’s where I’m concerned.”

In contrast with direct appeals of criminal convictions, defendants can also seek postconviction relief directly from the trial courts. That pathway, however, is only available for specific reasons, like ineffective assistance of counsel or newly discovered evidence — assertions that would require some investigation.

When a self-represented, or “pro se,” defendant files a petition, the Supreme Court has previously explained that trial judges must deny the request outright if the defendant is not entitled to relief. But if there is at least one claim with “arguable merit,” the judge must forward the petition to the public defender’s office so that an attorney can investigate and potentially refine the defendant’s assertions. After all of that happens, there is an opportunity for the defendant to receive a hearing.

An Arapahoe County jury convicted Townsell of entering a bank in June 2013 wearing a mask, demanding money at gunpoint and fleeing with $1,100 in cash in less than 30 seconds. He is serving 32 years in prison. 

After the Court of Appeals upheld his convictions, Townsell filed a petition on his own arguing his defense lawyer failed to diligently investigate the possibility that DNA evidence would exonerate Townsell and point to an alternate suspect.

A three-judge panel for the Court of Appeals sided against Townsell by 2-1. The majority concluded a trial judge was not obligated to appoint counsel to represent Townsell because even if he had credibly alleged his original lawyer was ineffective, he failed to show the lack of DNA investigation harmed him.

“Townsell also does not specify how further investigation by defense counsel of the DNA evidence would have changed ‘the result of the proceeding,’ or allege that a DNA expert would even have been available and willing to testify consistent with his allegations that his DNA may not have been on the other items recovered by the police,” wrote Judge Sueanna P. Johnson for herself and Judge Jerry N. Jones.

Judge Timothy J. Schutz disagreed with the majority’s conclusion that Townsell neglected to explain how his attorney’s actions compromised his defense. Schutz believed Townsell had sufficiently done so under the circumstances. Specifically, he argued it is unreasonable to expect an incarcerated person to essentially perform the DNA investigation their trial lawyer allegedly failed to do.

“Townsell is, by all appearances, indigent, and he is in prison,” Schutz wrote. “The net effect of such reasoning is to deprive a defendant of an evidentiary hearing because of the failure to present the evidence that he claims trial counsel failed to procure in the first instance.”

To the Supreme Court, Townsell maintained Schutz’s assessment was correct.

“The minute you start rationing (appointments of postconviction counsel) based on what the defendant can write on the paper, you’re screening out cases that may have incredible arguable merit, like this one,” said Hollis A. Whitson, representing Townsell.

In support of Townsell, Ramsey Lama, a former trial judge who now specializes in postconviction work, submitted a brief arguing that wealthy defendants who can hire their own lawyers will always have a better chance of success, while people like Townsell are “forced to fend for themselves.”

However, the justices asked Whitson repeatedly about how much clarity even a self-represented defendant needs to provide when alleging a lawyer’s deficient performance swung the outcome.

“Is this enough? Maybe it is. But I’m just trying to think about a framework for evaluating how much is enough,” said Justice William W. Hood III.

At the same time, the justices pressed the government to give a clear answer about why Townsell’s allegations were insufficient. Hood read aloud from the part of Townsell’s petition where he alleged a follow-up investigation by his trial lawyer “would have discovered substantial evidence of defendant’s exclusion” from the DNA profile.

“He’s got enough here, arguably, to raise the specter of the alternate suspect’s DNA turning up,” said Hood.

“What would he had to have said in this petition — guy from prison, no lawyer, no file — what would he had to have said in that motion to make it at least be referred to the PD?” said Boatright.

First Assistant Attorney General John T. Lee responded that a petition has to convey “not just that my attorney was ineffective … there needs to be facts asserted that, on its face, if proven true, would entitle a defendant to postconviction relief.”

“He has at least said, ‘Here’s what I think counsel did wrong. And I do think it would have made a difference,'” said Chief Justice Monica M. Márquez. “I’m worried that we’re asking him to drill down on alternate suspect theories and how the DNA evidence would tie to that. I’m struggling to see how pro se, incarcerated defendants are able to do all that on their own.”

Justice Melissa Hart was not present for the arguments, but Márquez said it is her “intent to participate in the decision.” A spokesperson for the judicial branch said Hart is attending to personal matters.

The case is Townsell v. People.