His other attorney, former Superior Court Judge Steve Allen, admits he misread the rule setting forth the time for filing. Smith gave the affidavit after he became overcome by depression and guilt over his actions. In Wednesday's hearing, Marquis urged Judge Ford to allow the execution to proceed. Marquis argued that Tucker has no constitutional right to counsel in post-conviction appeals. Consequently, she argued, the fact that his attorney was assisting the State in its efforts to execute his own client is immaterial.
State law requires the appointment of two attorneys in state post-conviction proceedings.
Smith was primarily responsible for preparing Tucker's appeal and is the only one who read the entire transcript. Consequently, Allen asked the court to reopen Tucker's appeal and appoint two new attorneys who could competently and devotedly work on Tucker's behalf. At the urging of the Attorney General's office, Judge Ford denied this request as well.