Friday, September 13, 2013

Insufficient Cooties

His name is Paul Howell.  And, as explained by the Honorable Rosemary Barkett, concurring in the judgment (though reluctantly), he done got fucked.  (No, those aren't the judge's words, they're mine. Her words are below.)  

Howell's on death row in Florida.  They almost killed him earlier this year, but he got a stay.  See, the lawyers the state chose to represent him screwed up his case and blew his deadline for seeking relief in federal court.  Burkett gave some detail.
[B]oth his trial attorney, who fabricated death threats to be excused from representing Mr. Howell, and his initial habeas attorney, who did not even contact Mr. Howell until after his federal habeas deadline had passed, were incompetent, ineffective, and deeply unprofessional.
Now, that's serious shit.  But hey, the Supremes have made it clear that your lawyer acts on your behalf.  And when your lawyer is negligent, well, that's the price you pay for having picked such a dumb shit incompetent as your lawyer.  You should have known better.  

Hold on though.  Howell didn't pick his lawyers.  The state of Florida did.  And since they chose the lawyers, isn't it especially unfair, maybe even unconscionable, to say that Howell should pay with his life for their incompetence?  I mean, we know that Antonin Scalia thinks that fairness and conscience have no place in the criminal justice system or in constitutional law, but he was dissenting when he said those things.

Doesn't matter. The law is clear.  The client suffers for the lawyer's negligence. 


Unless the lawyer was really, really, really, negligent.  Extra special negligent.  With Cooties.  Which Paul Howell said his lawyer did. (Had? What's the right verb for screwing up with cooties?)  But the court said the Cootie rule wouldn't help him.  It came too late.  He couldn't expect his lawyers to know that the Cootie rule would come along to save them, so they were just grossly incompetent, and that's not enough.  Here's Judge Pryor.
The district court denied Howell’s motion because it concluded that the change in the interpretation of the statute of limitations was not an extraordinary circumstance that would entitle Howell to relief from a final judgment. We affirm.
Burkett, who thinks it sucks, reluctantly agrees.  It's worth quoting her entire opinion.
I agree that, under our precedent, it cannot be said that the district court abused its discretion in dismissing Mr. Howell’s Rule 60(b)(6) motion. However, for the reasons articulated in my concurring opinion in Hutchinson v. Florida, 677 F.3d 1097 (11th Cir. 2012) (Barkett, J., concurring), I continue to believe that it is unjust and inequitable to require death row inmates to suffer the consequences of their attorneys' negligence. Moreover, this is another case where a state’s wholly inadequate system for appointing or funding habeas counsel conspires with a thicket of complex state and federal habeas procedural rules to deny habeas petitioners the opportunity to have their substantive constitutional claims heard by a federal court. What results is a habeas system wherein unqualified and incompetent attorneys regularly fail to ably navigate the procedural waters established by state and federal statutes. This system, which consistently leads to death row inmates being denied an opportunity to present non-frivolous habeas claims, is, in my view, antithetical to the promise of habeas corpus enshrined in the Constitution.

Here, Mr. Howell appears to have colorable claims that both his trial attorney, who fabricated death threats to be excused from representing Mr. Howell, and his initial habeas attorney, who did not even contact Mr. Howell until after his federal habeas deadline had passed, were incompetent, ineffective, and deeply unprofessional. I continue to believe that it is unconstitutional and immoral for death row inmates to lose a fundamental constitutional right because of their attorney’s errors, especially when they are as egregious as those we deal with here.
Which is exactly right (except maybe for the part about what the precedent says). But, and here's the bottom line, unless the court reverses itself or the Supreme Court steps in, Paul Howell could be the first person in years to have been involuntarily executed without any federal court reviewing his constitutional claims.

Not because he didn't have any.  Not because they weren't maybe worth hearing.  Just because his lawyers fucked up.

Even if you believe in the death penalty, even if you think Howell deserved it, don't you maybe have to wonder if there's something wrong with a system that says
We might not have killed you if your lawyers did their job.  But them's the breaks.


  1. For a book I'm writing on the death penalty and LWOP, could you point me in the right direction for the complete appeals process after conviction for murder? Is it different for state and fed convictions? Much thanks.

    I appreciate the information you're making available here, even if it does make me realize that our criminal justice system is worse than the average person could possibly imagine.

    1. There are variations from state to state and from the states to the feds. That much said, there are also general similarities. That kind of information is available at numerous places, but offhand I don't know of anyone who's collected it into a simple to follow yet clear and thorough summary.

      That much said, if you want to write me off the blog I'll be happy to provide some info and try to answer specific questions.

    2. I was afraid that it would be too complex an issue for one site to cover, but you've still given me a way to proceed. I'm concentrating on some prisoners from just a few states, so I'll research those individually. Unless any of them were charged at the federal level, I'll just skip that.

      The research is almost overwhelming, so any advice that helps me get it under control is most welcome. Thank you again.

    3. The variations are real, but general outline of potential and fairly common steps is reasonably close to uniform (and the federal version isn't all that different). But the outline is deceptive since depending on how you draw it, the outline either suggests that the process is linear or cumulative, and it's neither. That's where the real complexity comes in.

    4. Thanks. That gives me another way to approach it.

    5. I should probably add to that comment you found helpful that the rest of the complexity is in the procedural flaming hoops that have to be jumped through and abysses that have to be hurtled. And then, of course, there's the law itself and its basic insistence that the only important thing is to ensure that death sentences get carried out - regardless.