Aubrey C. Trail v. Nebraska

Mr. Trail was an indigent, death sentenced individual who diligently pursued the appointment of conflict-free counsel to raise credible claims related to the ineffective assistance of trial counsel, who had remained on as his direct appeal counsel. A postconviction court imposed indigency hurdle after indigency hurdle not required by Nebraska law or procedure–and then bootstrapped that lost time as a basis to decline to even consider the verified postconviction petition once non-conflicted counsel was appointed. Nebraska’s deprivation of the entirety of the post-conviction remedy when an individual pursues the appointment of conflict-free counsel presents the following questions:

1. Does a state violate this Court’s precedent and the Due Process clause when it penalizes the request for the appointment of conflict-free counsel?

2. Does the Due Process clause endorse a theory of a client’s abandonment of an attorney?

3. Is the timely and unencumbered appointment of conflict-free counsel a requirement of an adequate and corrective process where the statute requires effective and meaningful counsel?