Jose Portillo was one of three people convicted in a 2008 double homicide in Northwest Washington. Two years after he was sentenced to serve 137 years in prison, however, his case will go back before a trial judge for an investigation into Portillo's pre-trial concerns with his legal representation, the District of Columbia Court of Appeals ruled today.
A three-judge panel found that District of Columbia Superior Court Judge Michael Rankin made a "legally insufficient" inquiry into Portillo's claims that his lawyers weren't communicating with him and that he didn't understand what was going on because he wasn't getting materials in Spanish, his native language.
Judge Anna Blackburne-Rigsby, writing for the court, said Rankin's exchange with Portillo and his lawyer at the time that Portillo expressed his concerns could have been perceived as dismissive and made Portillo "feel less than comfortable voicing legitimate concerns about his legal representation."
The appeals court remanded the case for a full inquiry into Portillo's claims, known as a Monroe-Farrell inquiry. Depending on the outcome of that hearing, Portillo could be entitled to a new trial if the judge finds that his Sixth Amendment right to counsel was violated.
Portillo's lawyer on appeal, Jeffrey O'Toole of Washington's O'Toole Rothwell, could not immediately be reached for comment. A spokesman for the U.S. attorney's office, Matthew Jones, declined to comment. The two lawyers who represented Portillo before and during trial, solo practitioner John Machado and Ferris Bond of Bond & Norman, declined to comment, citing the pending Monroe-Farrell hearing.
Portillo and his two co-defendants, Peiro Hernandez and Angela Hernandez-Rivera, were accused of forcing their way into the home of Virginia and Michael Spevak, who were in their late 60s, in November 2008. After threatening the Spevaks with guns and tying them up as they searched the house for valuables, the trio was convicted of beating and stabbing the couple to death in the hopes of not being identified and caught.
Hernandez-Rivera and Hernandez, who are not related, pleaded guilty in 2009 and were sentenced to 40 years in prison. A District of Columbia Superior Court jury convicted Portillo in late 2010.
According to the appellate opinion, Bond was first appointed as Portillo's lawyer in March 2009, but because he wasn't fluent in Spanish, the court also appointed Machado, who is fluent, several months later. Several weeks before the trial was scheduled to begin, Rankin held a hearing to address a letter he received from Portillo.
In the letter, which was quoted in the opinion, Portillo said that he had made "numerous attempts" to contact his lawyer but hadn't heard back in seven months. "This defendant does not feel safe going to trial with said Attorney 'F. Bonds,' and therefore request [sic] new counsel," he wrote, with "F. Bonds" a reference to his lawyer Ferris Bond.
In an excerpted transcript of the hearing included in the opinion, Bond was quoted as telling the judge that he had discussed the issues with Portillo and they had "straightened them out."
Portillo was quoted as saying – it's unclear whether it was through an interpreter – that he wasn't given papers translated into Spanish so that he could understand them and that he felt he had an attorney "who's very busy and he's not trying hard regarding my case." He also told Rankin that Machado wouldn’t visit him at the jail. Rankin told Portillo that he did have effective representation and he needed to listen to his lawyers as he approached the trial.
"Lawyers who are very busy tend to be the ones who know what they're doing. Lawyers who don't have any business, well, you don't want them. So you need to spend the next hours and days trying to work with these people getting ready for trial," Rankin told Portillo, according to the transcript.
The appeals court hasn't specified questions that a judge has to ask as part of a Monroe-Farrell inquiry, instead noting that it depends on the circumstances of the case. It does, however, have to " be sufficiently specific and thorough to elucidate counsel's degree of compliance with the suggested criteria of professional competence," according to the case law cited by the appeals court.
Rankin failed to ask questions to follow up on Portillo's concerns about the lack of communication with his lawyers, Blackburne-Rigsby wrote. The judge should have asked more questions to gauge whether Bond was taking steps to make sure Portillo understood what was going on in his case, she said.
"The record in this case is silent as to counsel's legal preparation and underdeveloped as to counsel's communication with their client," Blackburne-Rigsby wrote. "Therefore, remand is appropriate."
Judges Stephen Glickman and Kathryn Oberly also heard the case.