The dark side of justice: When defendants ‘lose on technicalities’

By Ken Armstrong Fri, Nov 28, 2014 @ 11:47 am

Matt Stamey The Gainesville Sun Turosia Bright (left) and her mother, Marian Bright, stand outside Florida State Prison during the execution of Chadwick Banks in November. Banks had murdered his wife, Cassandra, who was a friend and co-worker of Turosia Bright. AP
AP
Matt Stamey The Gainesville Sun Turosia Bright (left) and her mother, Marian Bright, stand outside Florida State Prison during the execution of Chadwick Banks in November. Banks had murdered his wife, Cassandra, who was a friend and co-worker of Turosia Bright.
In 1992, Kenneth Rouse, an African-American man with an IQ between 70 and 80 — “borderline intellectual functioning,” in the clinical parlance — prepared to stand trial in North Carolina on charges that he had robbed, murdered and attempted to rape a white, 63-year-old store clerk.
Rouse’s lawyers questioned the prospective jurors to try to expose any racial or other bias. But several years after the all-white jury convicted Rouse and recommended a death sentence, his defense team made a stunning discovery.

One of the jurors, Joseph Baynard, who used a racial slur when referring to African-Americans, admitted that his mother had been robbed, murdered and possibly raped years before. Baynard had not disclosed this history, he said, so that he could sit in judgment of Rouse, whom he called “one step above a moron.”

As claims of juror bias go, the evidence could hardly have been stronger. But Rouse’s final appeal was never heard. Under the Antiterrorism and Effective Death Penalty Act of 1996, Rouse’s lawyers had just one year after his initial state appeal to petition for a last-resort hearing in federal court.

They missed the deadline by a single day.

A federal appeals judge wrote that it was “unconscionable” for her court to reject Rouse’s case because of such a mistake by his court-appointed lawyers. But dozens of lawyers have made the same mistake, and most of their clients, like Rouse, have not been forgiven by the courts for missing the deadline.

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.”

An investigation by The Marshall Project shows that since President Bill Clinton signed the one-year statute of limitations into law — enacting a tough-on-crime provision that emerged in the Republicans’ Contract with America — the deadline has been missed at least 80 times in capital cases. Sixteen of those inmates have since been executed — the most recent was on Thursday, Nov. 13, when Chadwick Banks was put to death in Florida.

Florida, in fact, has 37 of the missed deadlines — the most of any state by far.

By missing the filing deadline, those inmates have usually lost access to habeas corpus, arguably the most critical safeguard in the United States’ system of capital punishment. Habeas corpus allows prisoners to argue in federal court that the conviction or sentence they received in a state court violates federal law.

The prisoners who missed their habeas deadlines have sometimes forfeited powerful claims. Some of them challenged the evidence of their guilt, and others the fairness of their sentences. A prisoner in Florida was convicted with a type of ballistics evidence that has long since been discredited.

The 80 death-penalty cases reviewed were largely culled from databases of federal court opinions, but they also include other unpublished rulings. They represent just a fraction of the habeas appeals foreclosed by the 1996 law, which also applies to non-capital cases.

Like Rouse, who is still awaiting execution in North Carolina, two other inmates missed the habeas deadline by a single day, and for the most banal reasons. One attorney made the mistake of using regular mail instead of an overnight courier; another relied on a court’s after-hours filing system, which turned out to be broken.

But many of the other habeas petitions from condemned inmates were late by hundreds of days, or even thousands. On average, those lawyers missed the deadline by 853 days, or more than two years and four months. In one case, the attorney was more than 11 years late.

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.

Meanwhile, the problem that the habeas deadline was intended to solve — the ever-lengthening delays in the carrying out of death sentences — has grown steadily. In 1996, the average time from sentencing to execution was 10 years and five months, according to the Bureau of Justice Statistics. In 2012, the latest year for which the same figure is available, the delay had stretched to 15 years and 10 months.

THE COMPROMISE

The 1996 law that set the one-year statute of limitations on habeas appeals was one of the signal compromises that Clinton forged on domestic policy in the aftermath of the sweeping Republican victory in the 1994 midterm elections.

Some Republicans had advocated for habeas corpus reform for years, mainly as a way to streamline and limit Death Row appeals. The idea struggled to gain traction, but it became a small element of the Contract with America championed by then-Rep. Newt Gingrich, R-Ga., who was on his way to becoming House speaker. After the Oklahoma City bombing in 1995, the proposal found new life as part of antiterrorism legislation embraced by both parties.

But one opponent of the habeas proposal, Rep. Melvin Watt, a North Carolina Democrat, cited the advent of DNA evidence and the fact that some prisoners were being exonerated up to 15 years after their trials.

Congress, he said, was proposing “to compromise the most basic thing — innocence — for political expediency.”

The legislation passed the Senate by a vote of 91 to 8, and it cleared the House by a margin of more than 2 to 1.

CHALLENGES, FAILURES

Under the 1996 law, the one-year statute of limitations to file a federal habeas petition is supposed to begin after the conclusion of an inmate’s direct appeal, which is filed in the state courts.

The direct appeal — the first of three levels of possible appeals — must focus on the trial record. It can argue, for example, that an important objection by the defense counsel should have been sustained rather than overruled.

Lawyers who do post-conviction work in capital cases face a daunting array of challenges: They must typically reinvestigate the evidence for both guilt and punishment; canvass witnesses called and uncalled; plumb a defendant’s criminal, social and family history; and round up and study thousands of pages of records — all while under the pressure of defending a client whose life may depend on their success.

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.

In at least three cases since 1996, attorneys filed papers in the wrong court. One appellate attorney, who insisted that he had read the relevant case file, was later found to have never picked up the voluminous records from a state repository.

In some of the 80 cases, mistakes by judges compounded those of defense attorneys.

The lawyer for Richard Hamilton, who was convicted in 1995 of raping and murdering a 23-year-old nursing student after kidnapping her from a supermarket parking lot in Lake City, thought Hamilton had more time to file than he really did. So did a local judge, who told Hamilton not to worry.

“It has been resolved,” the judge said, to which Hamilton replied: “If you say so, that’s good enough for me.”

Then there are lawyers who have failed even more basic scrutiny.

Some of the attorneys appointed to the 80 cases include an Alabama lawyer who was addicted to methamphetamine and was on probation for public intoxication, and a Louisiana lawyer who suffered from a neurological and physiological disorder so debilitating that he was asked to leave his firm.

Two other men facing death sentences complained that their lawyer had a drinking problem — and they had the same lawyer.

In several cases, courts have shown that prisoners who schooled themselves in habeas law have sometimes demonstrated a better understanding of legal intricacies than their lawyers.

The Supreme Court took note of the phenomenon in the case of Albert Holland, who was sentenced to death for the 1990 murder of a Florida police officer who tried to arrest him.

“Holland was right about the law,” the justices wrote. His lawyer, they added, “was wrong about the law.”

TROUBLE IN THE SOUTH

The struggle to find capable lawyers for capital cases has been particularly visible in a handful of states with large numbers of Death Row inmates.

Since its death penalty was reinstated in 1976, Florida, for example, has bounced from one troubled arrangement to another for the provision of post-conviction counsel.

The state originally asked private lawyers to do the work free; it got few takers. It then established a special government office to do the work but shifted much of the load to a registry of private attorneys after lawmakers complained about the delays and the cost. In 1998, the state also set a cap on the number of hours per case those lawyers could bill (840) and the rate they could charge ($100 per hour).

Sometimes, even legal organizations that are usually lauded for the quality of their capital work have faced criticism.

In a Georgia case, a federal judge chastised lawyers with the Southern Center for Human Rights, a nonprofit that opposes the death penalty and provides free legal support to prisoners in capital cases. The Southern Center lawyers had left the case well before an inmate’s habeas petition was due, but the judge argued that they should have done more to find replacement counsel and to help the inmate determine the filing deadline.

‘GRIEVOUS INJUSTICE’

When a deadline is missed, an inmate’s federal appeal can be lost — no matter the strength of the argument for a new trial, and even if the late filing can be attributed more to hard luck than ineptitude.

The law requires that prosecutors turn over evidence favorable to the defense before trial. But it wasn’t until 22 years after William Kuenzel was condemned in Alabama that his appellate attorney received police notes and grand jury testimony undermining the prosecution’s case.

Kuenzel was convicted in 1988 of murdering a convenience-store clerk. But in 2010, the state disclosed that an alleged accomplice originally told police he was with someone else, and that the only eyewitness who identified Kuenzel at trial had told grand jurors she “couldn’t really see a face.”

Although Kuenzel now has potentially strong grounds for an appeal, he still lacks a court to hear them — his lawyer missed the federal filing deadline by nearly three years.

“It is just the most grievous injustice,” says David Kochman, an attorney who has been working on Kuenzel’s appeal since 2004. “If any case was crying out for review, it was this case.”

On April 15, 1996, juror Joseph Baynard, who died last year, signed an affidavit acknowledging that he had deliberately withheld the fact of his mother’s murder so that he could get on the jury.

At that point, Rouse’s case was still in the state courts, which ultimately denied him a new trial. His one-year habeas deadline came on Feb. 7, 2000, and his lawyers, who miscalculated the date, filed their petition on his behalf one day too late.

Despite the federal courts’ refusal to hear his case, Rouse got one more chance in 2009, when the North Carolina legislature passed the Racial Justice Act, allowing condemned prisoners to challenge their sentences if they could demonstrate that racial bias had played a role.

Rouse filed a motion to have his case reviewed under the act. But in 2013 — after four other Death Row inmates had succeeded in getting their sentences reduced to life without parole under the new provision — the state legislature repealed the law altogether.

Rouse’s motion is still pending. It is unclear if it will ever be heard.

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