Monday, June 14, 2010

Negligence - With Cooties

So you're sitting in prison.  You're on death row.  You shouldn't be there. 
You wouldn't be there, probably wouldn't have been convicted at all, except that the government hid the evidence that, before he died, the guy you supposedly killed described his killer - and the description doesn't come close to looking like you.  If you'd had that information at trial, you'd probably have been found not guilty.  Even if you were convicted, the jury's doubt would likely have been enough to spare you the death penalty.
The state courts don't care though.  Close enough for government work.  The jury could have convicted you and sentenced you to die, anyway.  "Strap him down and bring out the needles," they say.
But you're not done.  There's habeas corpus.  You can ask the federal courts to intercede.  After all, you had a federal constitutional right to evidence favorable to your case.  The government had a federal constitutional obligation to turn it over to you.  The Constitution, Magna Carta, almost 800 years of Anglo-American legal system, practice, and law are on your side.
And it's a death penalty case.  Your life is on the line.  Literally.  This is your last chance.
Your lawyer blows the deadline.  There was one year from the date state proceedings against you were over for the lawyer to file a petition for a writ of habeas corpus in federal court.  The year comes and goes without a filing.  Six weeks later, the lawyer files.
"Sorry," says the federal court.  "Your lawyer blew the deadline.  You must die."
But wait, you cry (now through a new lawyer, or maybe doing it yourself), how is that fair?  I'm not the lawyer. I didn't blow the deadline.  I didn't even pick the lawyer.
Tough.  The lawyer's error is yours because the lawyer is your agent.
If that seems harsh - well, it is.
If that seems stupid - well, it is.
If that seems evil - well, it is.
And if that seems a recipe for disaster - well (all together now) it is.
Welcome to the world of habeas corpus.
In your civil case, if the lawyer screws up, you sue the lawyer.  If you can prove that the lawyer cost you, the lawyer (or the lawyer's malpractice carrier) is supposed to pay what you lost.
In your ordinary criminal case, if the lawyer screws up, you may be screwed, but you can sue the lawyer and maybe get some cash out of it.
In your death penalty case, if the lawyer screws up, you get killed.
That's not entirely true.  Lots of people, in fact, get off death row because they were able to show that their lawyers were incompetent and screwed up in majestically awful ways.  But that requires that the later lawyers did everything right.
The hopeless problem mostly comes at the end of the line, in federal habeas corpus.  That's the place where all the I's need to be dotted and the T's crossed.  That's the place where a misstep at any time - in federal court or earlier - means the client dies.
One of those places for a misstep is in getting the petition filed on time.  Under the clumsily named Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), the defendant has one year from the end of direct appeal to file a petition for writ of habeas corpus.  Various things can stop the clock, so calculating the due date is sometimes tricky, but it's rarely all that hard. And if there's a doubt, and the client's life is on the line, the sensible lawyer files early rather than take a chance.
Still, lawyers blow that 1-year deadline with remarkable frequency.
You'd think basic fairness would kick in to save the client.  Sometimes it does, in the form of something lawyers call "equitable tolling."  Roughly, the idea is that when the habeas deadline rule would be too harsh, fairness should toll the habeas clock.  The problem is that AEDPA doesn't say there is such a thing as equitable tolling.  And while the courts have generally found it can occur, they've been . . . .  
Well, it's really the story of Albert Holland.  Here's the plot as Kate Wevers laid it out on the scotuswiki.
In 1996, petitioner Albert Holland was convicted of murder and sentenced to death in a Florida state court. His direct appeals were unsuccessful: the Supreme Court denied certiorari, thereby triggering the start of Section 2244(d)’s one-year limitations period, on October 1, 2001. Approximately one month later, Bradley Collins was appointed to represent Holland in his post-conviction proceedings. Collins filed a motion for post-conviction relief in state court in September 2002, thereby tolling the limitations period and leaving Holland with approximately two weeks to file his federal habeas petition if his motion for state post-conviction relief was denied. The Florida Supreme Court did deny relief, and issued its mandate affirming the denial on December 1, 2005 – at which point the limitations period continued to run.
Although Holland had repeatedly written to Collins asking about the state court proceedings and the AEDPA limitations period, and had instructed him to file his federal petition before the limitation period expired, Collins nonetheless failed to file a timely federal habeas petition and failed to even tell Holland that the Florida Supreme Court had released its decision affirming the denial of Holland’s motion. In January 2006, after the one-year limitations period had expired, Holland eventually learned that the Florida Supreme Court had denied post-conviction relief. One day later, he filed a pro se federal habeas petition.
The district court dismissed Holland’s federal habeas petition as untimely, holding that Holland was not entitled to equitable tolling because he had not been diligent in pursuing his rights. On appeal, the Eleventh Circuit affirmed. It assumed without deciding that Collins had been “grossly negligent,” but, in its view, “no allegation of lawyer negligence . . . can rise to the level of egregious attorney misconduct that would entitle [Holland] to equitable tolling” unless there are allegations of affirmative misrepresentations, bad faith, dishonesty, divided loyalty, or mental impairment on the part of the attorney. 
Norm Pattis has a less dispassionate summary.
So Mr. Holland sat on death row, in the eye of the needle, if you will. His lawyer ignored him. A filing deadline for post-conviction relief loomed. The client pleaded with the lawyer to file something on time. The lawyer ignored the client. The deadline passed. By application of the Antiterrorism and Effective Death Penalty Act of 1996, the client was supposed simply to die at this point. His agent, the lawyer, had erred after all.
Well, yeah.  And as Norm adds
Of course such a result is unconscionable. A lawyer's mistake costing a client his life? Analogies to medicine break down here. It is not simply the case that some clients, like some patients, die regardless of what a doctor does. Whereas medical errors often cannot be corrected, legal errors can. When a lawyer fails to meet something as basic as a filing deadline it simply makes no sense to hold the client accountable for the error. I'd like to think that even a moral imbecile understands that.
Holland asked the Supreme Court to hear the case, and they agreed.  Oral argument was held March 1.  The case is Holland v. Florida, and this morning the Court issued a decision.  By a vote of 7-2 they reversed the court of appeals and almost gave Holland the right to have the federal district court decide whether Holland actually suffered some harm that would take away (at least temporarily) his death sentence.
Yeah, I did say "almost."
To understand why, you need to get just what the Court did and did not do.  And that means you need to understand that while equitable tolling is about fairness, the courts don't think it should be about real fairness, certainly not the sort of thing Norm was talking about.
Here's Scalia, in dissent (joined in most of the dissent, including this part, by Clarence Thomas), explaining (pretty much accurately) the state of the law.
Even if [AEDPA] left room for equitable tolling in some situations, tolling surely should not excuse the delay here. Where equitable tolling is available, we have held that a litigant is entitled to it only if he has diligently pursued his rights and—the requirement relevant here—if “‘some extraordinary circumstance stood in his way.’” Lawrence v. Florida, 549 U. S. 327, 336 (2007) (quoting Pace v. DiGuglielmo, 544 U. S. 408, 418 (2005)). Because the attorney is the litigant’s agent, the attorney’s acts (or failures to act) within the scope of the representation are treated as those of his client, see Link v. Wabash R. Co., 370 U. S. 626, 633–634, and n. 10 (1962), and thus such acts (or failures to act) are necessarily not extraordinary circumstances.
Get that?  If the lawyer screws up, it's treated as the client screwing up, and if it's ever possible to get around that, there have to be two things.
  1. The client must not be confused or clueless, unable to understand.  Rather, the client must be diligent and energetic, actively trying to get the lawyer to do her job properly.
  2. The lawyer's failure can't be the lawyer's fault.  There must be an intervening "extraordinary circumstance" that prevented the lawyer from acting properly.  Perhaps 9/11 would have qualified since the country pretty much ground to a halt that day.  (In fact, I had an amicus brief due in the Supreme Court that day/  The printer was on the way to the Court to deliver the brief when the Court shut down.)
But really, Scalia said (Thomas didn't join this part), there's no such thing as equitable tolling under AEDPA.
The Court accepted all of that.  Justice Breyer, writing for 6 of the 7 in the majority (Alito wrote separately, and only for himself), said that there is indeed such a thing as equitable tolling under AEDPA.  And it's just like Scalia said it is, only different.
The client must be "diligent" in asserting her rights.  And if the lawyer is just negligent, it's OK to kill the client.  Maybe it's OK if the lawyer is grossly negligent.  Maybe it's OK if the lawyer is really, seriously, grossly negligent.  With cooties.  But the court of appeals in this case demanded too much.  Yes, it said, there's equitable tolling.  But the "extraordinary circumstance" can't be negligence.
We will assume that Collins’s alleged conduct is negligent, even grossly negligent. But in our view, no allegation of lawyer negligence or of failure to meet a lawyer’s standard of care—in the absence of an allegation and proof of bad faith, dishonesty, divided loyalty, mental impairment or so forth on the lawyer’s part—can rise to the level of egregious attorney misconduct that would entitle Petitioner to equitable tolling.
Breyer doesn't actually say why or how that's too rigid a requirement.  And he doesn't explain what should count as an "extraordinary circumstance" (that's what Alito takes a stab at in his opinion).  He doesn't even say that Holland's lawyer's misbehavior qualified.  Instead, he (and by "he" I mean the majority of the Court), sends the case back for the 11th Circuit Court of Appeals to consider whether under the correct, less rigid standard (whatever it might be) Holland is entitled to equitable tolling.
Mirriam Seddiq, writing at Not Guilty, suggests that non-lawyers might want to read Holland.
I think the non-lawyers who read this blog might be interested in it as well, since it gives you a glimpse into the terrors of trial.  Yes, people might be terrible awful, but how do we know if their lawyers are worse?
That last question is really the one, isn't it.  How do we know?  And do we care?
It's back to Norm's point.
When a lawyer fails to meet something as basic as a filing deadline it simply makes no sense to hold the client accountable for the error. I'd like to think that even a moral imbecile understands that.
Understands?  Perhaps.  But acts?  That's another story.  None of the nine were willing to go there.  It's just that some were more adamant about it, and maybe a shade more willing to face up to it, than others.
Here, once again, Scalia.
The Court’s impulse to intervene when a litigant’s lawyer has made mistakes is understandable; the temptation to tinker with technical rules to achieve what appears a just result is often strong, especially when the client faces a capital sentence. But the Constitution does not empower federal courts to rewrite, in the name of equity, rules that Congress has made. Endowing unelected judges with that power is irreconcilable with our system, for it “would literally place the whole rights and property of the community under the arbitrary will of the judge,” arming him with “a despotic and sovereign authority,” 1 J.Story, Commentaries on Equity Jurisprudence §19, p. 19(14th ed. 1918). The danger is doubled when we disregard our own precedent, leaving only our own consciences to constrain our discretion. Because both the statute and stare decisis foreclose Holland’s claim, I respectfully dissent.
Hamlet observed that
Conscience doth make cowards of us all.
For Scalia, at least, conscience is far more dangerous than that.  It's something we might actually follow.  Were we to do that, who knows where it might lead.  Maybe then we wouldn't kill clients just because their lawyers committed plain old garden-variety negligence.
Jefferson was speaking of slavery when he said,
I tremble for my country when I reflect that God is just.
He might, of course, have been speaking of habeas corpus.
Fortunately, we have a Court that won't let conscience temper justice.  
On that, Scalia can rest easy.
And who know, maybe the 11th Circuit will give Holland a chance to be heard on the merits of his habeas petition.


  1. And they call themselves "justices"? Scalia: the temptation as a judge is to do what I know is right, but I can't do that! Not even if a man's life is at stake.

    It's disgusting.

  2. I think non-lawyers (they make up the 27 other people who read my blog) should read everything we read. It's because they don't that we are where we are.