As he faced accusations in Missouri of murdering his cousin and her husband in 2006, the only thing that stood between Brian Joseph Dorsey and the death penalty were two state-appointed attorneys who were each paid a $12,000 flat fee to defend him at trial.

But that low-cost engagement meant doom for Dorsey, he now argues.

In a petition filed with the U.S. Supreme Court on April 1, Dorsey said that his lawyers, Scott T. McBride and Christopher A. Slusher, failed to investigate mitigating factors such as Dorsey's mental illness and drug abuse, and instead convinced him to plead guilty to first-degree murder charges without getting assurances from prosecutors that they wouldn't seek the death penalty.

Based on the quality of the legal representation he received and the flat-fee arrangement, Dorsey is urging the justices for a reprieve from his lethal injection, which is scheduled for April 9 at 6 p.m. CT. Meanwhile, Missouri Gov. Michael L. Parson is considering a separate petition for clemency Dorsey filed last month.

Federal public defenders representing Dorsey asked the justices to issue a stay and argued in a certiorari petition that the flat-fee structure created a conflict of interest — a financial incentive for his trial attorneys to provide constitutionally deficient representation.

"The way that Mr. Dorsey ended up on death row is particularly egregious," Assistant Federal Public Defender Arin Melissa Brenner told Law360. "It's an indictment of the criminal justice system to execute a man whose attorneys were clearly laboring under a conflict of interest ... It so clearly affected his representation. It's a travesty."

A former drug addict, Dorsey never disputed killing his cousin, Sarah Bonnie, and her husband Ben Bonnie, on the night of Dec. 23, 2006. The victims' bodies were found in their bed with gunshot wounds, indicating they were killed in their sleep. Sarah Bonnie was also found to have been sexually assaulted after her death, though DNA tests never identified Dorsey as the assailant. Dorsey walked into a police station to surrender three days later.

The Missouri State Public Defender System contracted Slusher to prepare mitigating evidence aimed at shielding Dorsey from the death penalty and tasked McBride with reviewing DNA evidence.

According to the federal public defenders, however, the attorneys did little to no mitigation work and even refused to work with the investigator that would have been paid for by the public defenders' office. The reason, the federal defenders say, is the $12,000 flat fee made it inconvenient to spend hours pouring through new evidence, even if it were useful to spare Dorsey's life.

"The flat-fee contract structure pitted their personal financial interests directly against Mr. Dorsey's fundamental rights to assistance of counsel and a fair trial," Dorsey's attorneys told the high court in his cert petition.

Janet Thompson, a former staff attorney for the Missouri State Public Defender System who specialized in capital defense, told Law360 she received a call from Slusher at the time he was handling Dorsey's defense. During the chat, Slusher asked for Thompson's opinion about pursuing a guilty plea for his client.

"Don't do this. This is a really bad idea," she recalled saying. "Why would you do it?"

Thompson said she later learned from the news that Dorsey's attorneys didn't follow her advice. Slusher and McBride declined to comment when reached by Law360 this week.

After Dorsey pled guilty, a jury ultimately agreed Dorsey should be put to death for the murders. While he appealed the sentence claiming ineffective assistance of counsel, the Missouri Supreme Court shot down his arguments in 2010 and again in 2014.

"No Missouri court has found that a flat fee arrangement creates a conflict of interest, and Mr. Dorsey does not demonstrate an actual conflict that adversely affected counsel's performance," the state high court ruled in 2014.

From there, Dorsey filed a federal habeas corpus petition, a process through which people can challenge their detention, conviction or sentence on constitutional grounds. But in 2019, the U.S. District Court for the Western District of Missouri denied Dorsey's claim of a conflict of interest related to his attorneys' flat-fee agreement, saying the Supreme Court had only recognized the existence of a conflict of interest in cases in which an attorney has represented more than one defendant.

The Eight Circuit and the U.S. Supreme Court both denied relief, paving the way for an execution date to be set by the state. Dorsey's subsequent attempts to get off death row through the state habeas process were unsuccessful.

The flat-fee arrangement deeply impacted Dorsey's defense, according to the federal defenders. He had no criminal history at the time of the killings. For many years, though, he had been suffering from severe depression, which he tried to tame by abusing alcohol and crack cocaine. On the night he shot the Bonnies using a shotgun he found at their house, Dorsey was heavily intoxicated and was experiencing drug-induced psychosis, his attorneys say.

But Slusher and McBride never had Dorsey evaluated by an expert who could have helped make the case that his actions didn't meet the legal threshold for first-degree murder, a crime that in Missouri can carry the death penalty, the attorneys say.

In 1980, the U.S. Supreme Court held in Cuyler v. Sullivan — a case involving an attorney who represented multiple defendants, poorly — that a defendant alleging ineffective assistance of counsel based on an attorney's conflict of interest need show only that an "actual conflict of interest adversely affected his lawyer's performance."

The high court never decided, however, whether the Sullivan ruling applies to attorneys appointed through flat-fee contracts. Since then, federal and state appellate courts have filled the void with contrasting interpretations.

The First, Second, Fourth, Ninth and Tenth circuits have held that Sullivan provides the right test to determine possible conflicts of interest of attorneys such as, for example, personal interests — an attorney writing a book about the client's trial — and financial conflicts, including those arising from flat-fee agreements. The Kansas and New Mexico state supreme courts adopted the Sullivan test specifically for conflicts of interest involving flat fees.

The Fifth, Sixth and Eleventh circuits, meanwhile, have adopted a narrower test spelled out in Strickland v. Washington , a U.S. Supreme Court ruling from 1984 that defined the standards for determining whether poor performance by an attorney violates a client's Sixth Amendment right to receive effective counsel.

"There is an absolute circuit split," Brenner said. "It is the Wild West out there, of what courts are doing with conflict of interest."

In 2003, years before the criminal case against Dorsey played out, the American Bar Association recommended that flat-fee arrangements be avoided in capital punishment cases, warning that they carried the potential to "discourage lawyers from doing more than what is minimally necessary to qualify for the flat payment."

Missouri has since abandoned the flat-fee model.

On March 5, Dorsey's legal team, which also includes lawyers with the Roderick & Solange MacArthur Justice Center, asked the Missouri governor to commute Dorsey's death sentence to life in prison without possibility of parole, saying Dorsey has rehabilitated.

A broad range of voices, including those of people who played a direct role in Dorsey's judicial proceedings, have embraced Dorsey's case for clemency.

Judge Michael A. Wolff, who was one of the justices of the Missouri Supreme Court who upheld Dorsey's sentence, said in an opinion piece published last month in the Missouri Times that executing Dorsey "will dishonor our system of justice" and urged clemency for him.

"When my colleagues and I upheld his conviction and death sentence in 2009, we were unaware of how compromised his defense lawyers were," Judge Wolff wrote. "No doubt the shoddy representation he received was a direct result of the conflict induced by the fee arrangement, and the outcome of the case flowed from counsel's errors."

Judge Wolff declined to comment when reached via email by Law360.

Similarly, five out of the twelve jurors who voted to sentence Dorsey to death — he needed only one of them to disagree to avoid the sentence — have since come out in support of Dorsey's bid for clemency, saying the legal system "got it wrong" in his case.

And in a rare move, a group of 72 current and former Missouri correctional officers who have interacted with Dorsey sent a letter asking the governor to commute his sentence.

They noted that Dorsey had never committed a violation during his time in prison and that he has worked for more than a decade as the staff barber in the correctional facility where he's incarcerated.

"Generally, we believe in the use of capital punishment. But we are in agreement that the death penalty is not the appropriate punishment for Brian Dorsey," the officers said, calling him a "good guy" and a "terrific barber."

"There isn't a nicer guy than Brian. He is one of the most pleasant people we know. He doesn't deserve to be executed," they added.

Some correctional officers also submitted individual letters. In one of them, an officer said it was evident Dorsey had accepted responsibility for his crime.

"It is my impression that he has spent his time since then trying to do his best by being a role model to other inmates and providing a valuable service to staff," said the officer, whose name was redacted in the clemency petition.

Members of Dorsey's family, who are also related to the victims, have also asked Parson to spare his life, and so have several Republican members of the Missouri Legislature.

Megan Crane, an attorney with the MacArthur Justice Center representing Dorsey, described him as "deeply remorseful."

"The shame and remorse he feels about this just dominates him every day," she said.

Crane said the number and diversity of people supporting Dorsey's case for clemency is unprecedented.

"It is really a case where people who are often law-and-order people, victims rights people, people who believe in the death penalty, they don't believe in it here for Brian," she said.

Elyse Max, the co-director of the advocacy group Missourians to Abolish the Death Penalty, told Law360 in an email that executing Dorsey "serves no purpose and only creates further harm."

"Executing Brian would devastate his family, friends, and the community of correctional officers and employees who have come to know him over the past two decades of incarceration in Potosi Correctional Center," she said.

Johnathan Shiflett, a spokesperson for Parson, who has authority to grant clemency with nonbinding advice of the state's Board of Pardons and Paroles, said the governor's office is reviewing Dorsey's petition and will render a decision prior to the scheduled execution date, "typically at least 24 hours in advance."

--Editing by Lakshna Mehta.

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