Death by Deadline: How bad lawyering and an unforgiving law cost condemned men their last appeal

Ken Armstrong, Death by Deadline: How bad lawyering and an unforgiving law cost condemned men their last appeal, Part One. The Marshall Project, 15 November 2014. And Death by Deadline: When lawyers stumble, only their clients fall, Part Two, The Marshall Project, 16 November 2014. Published in partnership with The Washington Post. “[In 1996] President Bill Clinton endorsed a Republican plan to limit death-penalty appeals by setting a one-year deadline for the filing of habeas corpus petitions. Those federal appeals, which typically come after claims in state courts have been exhausted, allow inmates to seek a final review of their convictions on grounds ranging from juror misconduct to the suppression of evidence by prosecutors. Yet an investigation by The Marshall Project has found that in at least 80 capital cases in which lawyers have missed the deadline – sometimes through remarkable incompetence or neglect – it is almost always the prisoner alone who suffers the consequences.

Among the dozens of attorneys who have borne some responsibility for those mistakes, only one has been sanctioned for missing the deadline by a professional disciplinary body, the investigation found. And that attorney was given a simple censure, one of the profession’s lowest forms of punishment. The lack of oversight or accountability has left many of the lawyers who missed the habeas deadlines free to seek appointment by the federal courts to new death-penalty appeals.

By missing the filing deadline…inmates have usually lost access to habeas corpus, arguably the most critical safeguard in the United States’ system of capital punishment. “The Great Writ,” as it is often called (in Latin it means “you have the body”), habeas corpus allows prisoners to argue in federal court that the conviction or sentence they received in a state court violates federal law.

The 80 death-penalty cases reviewed here were largely culled from databases of federal court opinions, but they also include other, unpublished rulings that were known to capital defense attorneys and advocates interviewed around the country. They represent just a fraction of the habeas appeals foreclosed by the 1996 law, which also applies to non-capital cases….

Some of the lawyers’ mistakes can be traced to their misunderstandings of federal habeas law and the notoriously complex procedures that have grown up around it. Just as often, though, the errors have exposed the lack of care and resources that have long plagued the patchwork system by which indigent death-row prisoners are provided with legal help….

Some of the same federal judges who are responsible for appointing habeas counsel have later traced the failure of such attorneys to meet the filing deadline to their inexperience, indifference, ineptitude or illness – and to myriad combinations thereof….

On April 17, 1996, as then-Sen. Daniel Patrick Moynihan argued against any weakening of habeas corpus protections in the pending antiterrorism bill, the New York Democrat reminded his colleagues that the matters at hand were more profound than mere legal procedures. “We are dealing here, sir, with a fundamental provision of law, one of those essential civil liberties which precede and are the basis of political liberties,” Moynihan said.

Quoting from a letter that several former attorneys general had written to President Clinton, he cast the federal courts’ ability to review state-court decisions under habeas corpus as an essential guarantee: “It has a proud history of guarding against injustices born of racial prejudice and intolerance, of saving the innocent from imprisonment or execution, and in the process, ensuring the rights of all law-abiding citizens.”…

While the American public often complains about criminal defendants winning their legal cases on technicalities, the opposite is often true, says Gretchen Engel, a habeas expert who had advised Rouse’s defense team and provided the correct filing date: “What they don’t realize is how often people lose on technicalities, or in ways that would offend most people’s sense of justice.”…

The absence of any systematic monitoring or punishment for mistakes on which their clients’ lives might depend underscores the uneven quality of publicly funded legal aid to death-row prisoners who turn to the federal courts….

The rash of missed deadlines has become a source of frustration for some federal judges, and a subject of some concern in the Justice Department.

In an interview, the outgoing United States attorney general, Eric H. Holder Jr., said that before he relinquishes his post, he will deliver a report to President Obama on problems with the death penalty around the country, and that the department will consider the issue of missed deadlines in the filing of habeas petitions.