Wednesday, March 3, 2010

Calculated Cruelty

Albert Holland had a problem:  His lawyer.

Holland was (and is) on death row in Florida after a 1991 conviction.  By 2001, he'd lost his direct appeal in the Florida courts and on October 1 of that year, the U.S. Supreme Court announced that it would not hear the case.  The next step was to go back into the Florida courts to seek some sort of collateral relief (essentially, an effort to get at things that were not part of the trial court record).  But there was a deadline out there that concerned Holland.

Under AEDPA (the Anti-Terrorism and Effective Death Penalty Act), a death row inmate has exactly one year to ask for habeas corpus relief in the federal courts.  For Holland, that year (you actually count it by days, so 365 days) began on October 1, 2001.  The thing is that once he asked the Florida courts for collateral relief, the one year clock would be stopped until they were done with his case.  So Holland had until October 1, 2002 to file his petition for habeas corpus unless the clock got stopped, and he needed to seek collateral review.

About a month after Holland lost in the Supreme Court, Florida appointed Bradley Collins to represent him on collateral review.  So far so good.  But Collins didn't act.  He sat on the case.  For months.  While the habeas clock ticked away.

Holland worried.  He told Collins, repeatedly, that all issues needed to be raised in state court and that his federal habeas petition would need to include all those issues and to be filed on time.  Collins assured Holland that all was under control.  Holland didn't believe it.  He tried to get Collins removed and new counsel appointed, or even to represent himself.  The Florida courts refused.
Ultimately, Holland lost in the Florida courts.  Collins didn't tell him.  Nor did Collins file for habeas relief.  The time for filing ran out.  Still Collins didn't tell.  Eventually, Holland learned.  He wrote and sent off the next day a handwritten petition for writ of habeas corpus.  It was dismissed. 

Your lawyer blew the deadline.  You're out of luck. 

The case is Holland v. Florida, and they argued it in the U.S. Supreme Court Monday morning. The issue is whether the gross negligence of Holland's lawyer should be a basis for equitable tolling.  That's legalese for asking whether when the lawyer screws up badly enough, and when the client's been pushing and pushing to have it all done right, that habeas deadline can be extended. Or do we just kill the client?

I'm not just being flip.  Ask Roger Coleman.  Ooops.  You can't.  He was executed.  His lawyer blew a deadline in the Virginia courts.  It was almost understandable.  What it wasn't, it turns out was excusable.  Sandra Day O'Connor began her opinion for the Supreme Court in Coleman v. Thompson with words to chill the heart of a criminal defense lawyer:
This case is about federalism.
Yeah, I know Coleman was guilty.  I also know that he never got the federal review he should have and that at the time the Supreme Court blew him off, there was substantial basis to think he might have been innocent.  It didn't matter.

Frankly, there's a fair chance nothing will matter for Holland, either.  The Court decided a long time ago that negligent lawyering wasn't a basis for relief.  Gross negligence isn't much different.  Breyer kept asking about earthquakes and hurricanes.  He wondered what would be appropriate if the lawyer were kidnapped.  Florida's lawyer was steadfast: no relief.

The other capital development of some note in the Court on Monday was the announcement that it would not hear Harbison v. LittleHarbison was a challenge to Tennessee's lethal injection procedures.  The district court said that they were unconstitutional because there were insufficient safeguards against the condemned inmate suffering excruciating pain.  The Sixth Circuit reversed.  

And now it's done. 

A friend asked what it means.  Here's what I wrote.
My best guess, and of course, that's all it is because I have no inside information, is that SCOTUS has no interest in wading back into the world of lethal injection.  They said their piece.
And while lawyers can (and do, and I have) tear it apart and find in it things that give them room to keep litigating, the bottom line in Baze really was that lethal injection is perfectly constitutional in theory, and as supposedly applied by protocol.  If a state demonstrates that it cannot or will not follow its protocol, then there might be an available challenge in that state, but that should be resolved by the state agreeing to get its act together.  I suppose if a state decided to do lethal injection by shooting drugs into the eyeball, that would be a different enough scenario that Baze might not cover it, but that doesn't mean SCOTUS would oversee what the lower courts did to it.
So, yeah, I think LI litigation is now almost entirely going to be about state law and state procedures (the administrative procedure act cases, for instance).
Frankly, the only way I see SCOTUS getting back into this within the next 5 or 10 years is if the state loses a case in the lower courts.
Really, it's all just the usual struggle.  We can kill them.  Or we can care about fairness and dignity and integrity in the system.

I had just recently moved to Ohio and I was talking with a judge I'd never met.  I didn't know anything much about him, nor did he know anything much about me.  He asked if I was more in the due process or the finality camp.  I said that finality without truly fair and full process is just calculated cruelty. 

Actually, I don't think I said that.  But I wish I had.

Because it's true.
Welcome to the 21st Century in the United States.

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