[Deathpenalty] death penalty news----S.C., FLA., ALA., OHIO, MO., USA

[Rick Halperin]

Nov. 16


SOUTH CAROLINA:

Defense attorneys for father of 5 slain Lexington children prepare for 
potential death penalty case


Prosecutors have not yet said if they will seek the death penalty against 
Timothy Jones Jr. - the Red Bank father accused killing his 5 children in 
August - but his defense attorneys are expecting it.

Jones' attorneys, Rob Madsen and Boyd Young, are preparing for the possibility 
of a death penalty case in a series of requests made to Circuit Judge Thomas 
Russo, who has yet to decide on any of them except for one that ended with the 
judge imposing a gag order.

The gag order imposed on Sept. 26 prohibits any outside "statements of counsel, 
potential trial participants, law enforcement and any other persons involved in 
the investigation and possibly in the trial" from being made, according to 
court documents.

The gag order means attorneys can't talk to the press, so further elaboration 
on strategies and developments isn't available.

Jones' attorneys also made other requests, including for a prohibition against 
Jones from appearing in court in jail clothing and another request that would 
prohibit Jones from appearing in court in handcuffs.

Jones, 32, is charged with 5 counts of murder in the deaths of his children - 
Merah, 8; Elias, 7; Nahtahn, 6; Gabriel, 2; and Elaine, 1.

He is accused of killing the children Aug. 28 at the family home in Red Bank. 
Authorities say they found the 5 bodies where Jones told them to dig in 
Alabama.

One of the main requests filed by Jones' attorneys include a motion to require 
grand jury proceedings that would "require the Grand Jury proceedings to be 
recorded by a court reporter so there will be a record for review" by the trial 
court, a date for which has yet to be scheduled, and potentially, appellate 
court.

That request also said, "The Court should require the state to call witnesses 
to testify before the grand jury who have actual knowledge of (Jones') case," 
and "The Court should require the state to present to the grand jury evidence 
favorable to (Jones') case."

Jones had custody of the children after his 10-year marriage with his wife 
Amber ended in divorce in October 2013.

He was stopped Sept. 6 at a traffic safety checkpoint in Raleigh, Miss., on 
suspicion of driving under the influence of alcohol or drugs. The children were 
not with him, investigators have said.

The children's bodies were found in plastic garbage bags Sept. 9 outside 
Camden, Ala., according to investigators, who have said Jones led them there.

Autopsy results have not been released, but some law enforcement officials have 
said it is likely the children were strangled.

Jones told investigators he believed his children planned to kill him and then 
"chop him up and feed him to the dogs," according to an arrest warrant.

(source: myrtlebeachonline.com)






FLORIDA:

Witness to an execution, and life


I look at my friends who have children, or those who will soon be parents.

I love seeing the joy they're bringing into the world, the laughing, giggly 
essence of who we are as humans.

The gift of life is awe inspiring.

Thursday early evening, I witnessed a man die by lethal injection as punishment 
for the brutal double murder of his wife and her 10-year-old daughter.

Chadwick D. Banks committed those crimes in 1992 and saw how our legal system 
dispenses justice. His family lost a son and a brother, but they knew for 22 
years it was coming.

His wife, 30-year-old Cassandra Banks and her daughter, Melody Cooper, were 
asleep when Banks shot them in the head.

Their families lost a daughter who wanted to help people through her work at 
the Apalachee Center and a bright young girl with an unlimited future.

Their only fault was being connected to Chadwick Banks.

I had never watched someone die.

Banks was calm while he was strapped to a gurney at Florida State Prison just 
moments before he was given a 3-drug cocktail that eventually killed him.

In his last statement, he apologized, saying he had searched for a reasonable 
answer for his actions for 22 years, coming to the conclusion there is none.

He said he was a different person. His mind was clear.

His morose calm was eerie as a room of more than 19 witnesses, including 
reporters and Department of Corrections staff, watched him take his final 
breath.

The calm exterior of the prison as we were driven to the execution chamber in 
the dark made me nervous anticipating what I knew I would witness.

But there is no way to anticipate watching someone die. I didn't know how I 
would feel going in, and then reminded myself I was there to do my job in 
documenting what justice looks like in Florida.

I'm not going to get into whether I think the death penalty is right or wrong. 
I imagine I will again report on executions and would like to keep my opinion 
to myself to protect that neutrality.

Cassandra Banks' mother, Annette Black, said something to me when I interviewed 
her earlier this week that stuck.

She told me the same thing she told this newspaper on Sept. 24, 1992; that she 
was never angry with her former son-in-law, but instead didn't understand why 
whatever caused him to kill his family couldn't have been avoided.

"He could have gotten in the car and never came back," Black said, "but he 
didn't."

With violence now an unfortunate norm in society - whether it be persistent 
wars, school shootings and random violent acts in communities across the world 
- Black said about an hour after the execution Thursday she hoped Chadwick 
Banks' death served as a lesson that might prevent future violent crime.

"Enjoy your life and allow others to enjoy theirs," she said. "Almost any 
decision a person makes can be reversed ... but once you take a precious life 
nothing can ever bring that life back again."

Life is beautiful. Don't take it for granted.

(source: Karl Etters, Tallahassee Democrat)






ALABAMA----female may face death penalty

Alabama Woman Forces Granddaughter To Run To Death, Wants Charges Dropped


Joyce Garrard Hardin, a 49-year-old Alabama woman, is requesting that capital 
murder charges against her, resulting from the death of her granddaughter, be 
dropped on the grounds that the autopsy was "problematic."

Hardin was arrested in 2012 for forcing her 9-year-old granddaughter to "run 
for hours as punishment for a lie about candy," according to the Daily Mail. 
After the girl collapsed due to exhaustion, she was hospitalized and died 3 
days later.

Hardin's lawyers have requested that the charges be dropped because of problems 
that arose in the autopsy of Savannah Hardin. Joyce Hardin's lawyers are 
claiming that the child died due to "longstanding health problems" and that her 
physical condition should be investigated and could be vital in a trial. 
Hardin, who could be facing the death penalty, has pleaded not guilty.

The Daily Mail also reports that the autopsy was "performed by a doctor who was 
later fired over allegations that included possible falsification of documents 
and dereliction of duty. The physician has since failed to testify in other 
cases and may not be available to testify in Hardin's trial, the defense argued 
in the document." The defense is also attempting to have charges dropped due to 
the trial being delayed multiple times. Lawyers for Hardin also claim that she 
is currently in ill health at the Etowah County Jail.

Despite attempts, Etowah County judge William Ogletree has, so far, rejected 
attempts to throw out the case and drop the charges. Savannah Hardin's 
stepmother was also charged for her murder after she failed to intervene when 
Savannah was running, but is currently free on bond.

According to reports, prosecutors have not responded to the requests from Joyce 
Hardin's lawyers. The request was submitted in late October. Hardin's trial is 
set for February 12th in Gadsden, AL.

(source: opposingviews.com)






OHIO:

Shield law on execution drugs to protect administrators raises concerns


Attorney General Mike DeWine says that Ohio won't see another execution until 
the General Assembly acts to provide legal immunity for those responsible for 
administering the lethal injections used to put inmates to death.

Drug makers, as well as physicians involved in executions, have become 
increasingly reluctant to play a role in administering the death penalty 
because of legal concerns.

Republican legislative leaders have been working with DeWine on a law that 
would shield the identity of the makers of execution drugs, providing them with 
anonymity to enable the state to continue carrying out lethal injections.

Earlier this year, it took nearly a half-hour for the state of Ohio to put 
Dennis McGuire to death using two drugs, midazolam and hydromorphone, that were 
obtained from Hospira, a pharmaceutical company. McGuire's family is suing the 
firm; Ohio is seeking other sources for the drugs.

McGuire's botched execution prompted U.S. District Judge Gregory Frost to 
postpone all lethal injections in the state. Executions are on hold until 
February, when the next inmate is scheduled to be put to death.

The shield law being considered in Ohio would be similar to actions taken in 
other states, including Arizona, Georgia, Missouri and Oklahoma, which have 
passed secrecy laws to protect the anonymity of pharmacies.

We question the rationale for a shield law and the idea of granting blanket 
immunity to those involved in executions.

Why shouldn't drug manufacturers and physicians be held liable for their 
actions? Dennis McGuire was put to death - in the name of the state - in a 
manner that apparently caused him a great deal of pain and suffering. His 
family is entitled to know why that occurred and has every right to hold those 
responsible accountable for their actions.

The taxpayers of Ohio are paying for the drugs used to kill human beings. Why 
shouldn't they know which drugs are being used, who is supplying them and who 
is administering them?

"I think the general idea is to the let the Department of Corrections acquire 
those things in private and not to have to disclose publicly who they're buying 
their drugs from," Senate President Keith Faber told the Associated Press. "Who 
they buy their drugs from, I don't think, is necessarily relevant to what their 
mission is."

We disagree. The issue under discussion is, quite literally, a matter of life 
and death. It deserves more careful deliberation than it is likely to receive 
in a lame duck legislative session. If that means deferring executions for a 
bit longer, so be it.

(source: Hudson Hub Times)



MISSOURI:

Execution order driven by misfortune, systemic racism


Executions snuff out human beings with the vast potential to be positive role 
models for fellow prisoners and to promote healing for crime victims. Missouri 
officials risk again creating an agonizing societal void if they execute Leon 
Taylor as planned early Wednesday morning.

Taylor would be the 11th person executed by our state since last November - the 
most in any year since 1899. Beyond issues of modernity and morality - we do 
oppose any murder by the person or state - citizens should be troubled by 
issues of racism and freakish legal misfortune in his case. We should 
appreciate Taylor's spiritual transformation, rising as he has from a 
nightmarish childhood and street crime to become a foundational leader of the 
Christian community within the Potosi prison.

Taylor has long accepted responsibility for his wrongdoing in 1994 when he 
fatally shot Robert Newton during the robbery of a gas station in Independence. 
Many years ago, Taylor wrote to Astrid, Newton's widow, apologizing for his 
actions and the grief he caused her and her family. She has accepted his 
remorse as sincere and has forgiven him. They eloquently share those heartfelt 
reflections in the documentary "Potosi: God in Death Row."

Jim Hall was deeply touched by the film, which publicly premiered last month -7 
months after Jeffrey Ferguson was executed for his role in the rape and murder 
of Hall's 17-year-old daughter, Kelli. Ferguson, Taylor and 2 other men 
incarcerated in the Potosi prison speak with shame of their crimes.

Our society traditionally erects a figurative wall between offenders and those 
who have been offended - in addition to appropriate physical barriers for 
public safety - that can impede prospective healing. Hall never had the 
opportunity to see and hear Ferguson, much less interact with him while he was 
alive. He wasn't emotionally ready to initiate contact. Hall and his family had 
publicly expressed support for the death penalty, including just after the 
execution. However, the execution has compounded rather than eased the family's 
suffering. As Hall explained during recent public programs where he spoke 
against Taylor's execution, family members realize they and many others are 
grieving the death of Ferguson.

Leon Taylor would be the 2nd black man executed in Missouri in nearly as many 
months sentenced to death by an all-white jury for murdering a white victim. At 
least 4 other black men have similarly been convicted by all-white juries in 
Missouri and executed since 1989.

A racially mixed jury convicted Taylor of murder but was unable to unanimously 
agree to a death sentence, so the judge imposed it. On appeal, the sentence was 
reversed because the prosecutor made improper statements during closing 
arguments. The prosecutor at Taylor's subsequent 1999 sentencing dismissed all 
6 blacks from serving as jurors. The all-white jury recommended a death 
sentence. The judge, even while expressing concerns about the racial dynamics, 
affirmed their recommendation and imposed death.

In 2002, the U.S. Supreme Court ruled in Ring v. Arizona that judges could no 
longer sentence someone to death when jurors had not unanimously agreed to the 
sentence. The next year, the Missouri Supreme Court ruled the Ring precedent 
should be applied retroactively. The courts then commuted to life imprisonment 
the sentences of about a half-dozen inmates. The courts refused this remedy for 
Taylor. As one of his co-counsels has lamented, "If the prosecutor had not made 
improper argument at the 1995 sentencing, Leon Taylor's original death sentence 
would automatically have been commuted to life. Instead, due to the 
prosecutor's misconduct, he is now awaiting execution."

Over the past two decades, Taylor has been a foundational leader of the 
Christian community in the Potosi prison, according to many accounts. He could 
continue to dwell as a positive influence if he were incarcerated and not 
executed.

His stand-up character is especially remarkable given his nightmarish 
childhood. Taylor's 2005 habeas petition notes his mother, Mary, was a chronic 
alcoholic who gave her children alcohol beginning with Leon at age 5. "Many of 
the children watched as she stabbed and shot at least 3 of her boyfriends. ... 
Leon watched as Mary shot and killed her husband, Sammie Owens."

She choked and beat all of her children, particularly when she was drunk, using 
her fists, switches, extension cords and other objects, the document notes. 
"She focused much of her anger and abuse on Leon" because he was the oldest and 
was expected to care for his siblings. "Strange men had access to the children; 
a 20-year-old male neighbor sexually abused Leon when he was 5 years old." 
Attempts by other adults to intervene failed. The petition reports Taylor was 
removed from the home a few times.

The document cites a police record years after Leon was sent to another 
juvenile facility, noting, "9 other children were removed from Mary Owens's 
home. The conditions in the home were horrendous. Mary was staggering drunk and 
cursed at the police. ... The children slept on urine-soaked mattresses, chairs 
or sofas. The house was full of spoiled food, and alcohol and Excedrin were 
available to the children. Insects crawled all over."

Contact Gov. Jay Nixon's office. Urge him to halt Taylor's execution and 
commute his death sentence. Call 573-751-3222 or write via email at 
https://governor.mo.gov/get-involved/contact-the-governors-office.

On Tuesday, join "Vigils for Life," remembering all murder victims and urging 
no more executions, from noon to 1 p.m. outside the Governor's Office, 2nd 
floor of the Capitol in Jefferson City, and from 5 to 6 p.m. at the Boone 
County Courthouse in Columbia. Call 573-449-4585 for more details.

(source: Mary Ratliff is NAACP Missouri State Conference president, and Jeff 
Stack is coordinator of the Mid-Missouri Fellowship of 
Reconciliation----Columbia Daily Tribune)






USA:

Death penalty off table in Va. officer's slaying


U.S. Attorney General Eric Holder has taken the death penalty off the table for 
4 people charged in the gang-related slaying of a reserve Virginia police 
officer.

Federal prosecutors said Friday that the 4 co-defendants will instead face the 
possibility of life in prison for their alleged role in the killing of Capt. 
Kevin Quick.

The 45-year-old Quick of Waynesboro was reported missing Feb. 1. His body was 
found several days later in Goochland County west of Richmond.

The Daily Progress reports that authorities say the 3 siblings and another man 
charged all belong to the Bloods gang set 99 Goon Syndikate.

The 4 charged in May are Daniel Lamont Mathis, Shantai Monique Shelton, 
Mersadies Lachalle Shelton and Travis Leon Bell, also known as Kweli Uhuru.

(source: Associated Press)

**************

Lawyers' mistakes, unforgiving law----Investigation finds that 1996 law created 
procedural hurdles, causing many inmates to lose access to final appeal; 
Last-chance pleas from death row often tossed over late filings


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 they might have against the defendant. 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 S. Baynard, 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 "1 
step above a moron." Baynard, who used a racial slur when referring to African 
Americans, added that he thought black men raped white women for bragging 
rights.

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 1 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.

An investigation by The Marshall Project shows that since President Bill 
Clinton signed the 1-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. 16 of those 
inmates have since been executed - the most recent was on Thursday, when 
Chadwick Banks was put to death in Florida.?

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. "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.

For example, of the 12 condemned prisoners who have left death row in Texas 
after being exonerated since 1987, 5 of them were spared in federal habeas 
corpus proceedings. In California, 49 of the 81 inmates who had completed their 
federal habeas appeals by earlier this year have had their death sentences 
vacated.

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. One Mississippi inmate was found guilty 
partly on the basis of a forensic hair analysis that the FBI now admits was 
flawed. A prisoner in Florida was convicted with a type of ballistics evidence 
that has long since been discredited.

Just last month, Mark Christeson, a Missouri inmate whose lawyers missed the 
habeas deadline in 2005, received a stay of execution from the Supreme Court 
just hours before he was set to die by lethal injection. In a court brief filed 
on Christeson's behalf, 15 former state and federal judges emphasized that he 
had not even met the appellate attorneys handling his federal case until after 
the filing deadline had passed. "Cases, including this one, are falling through 
the cracks of the system," they wrote. "And when the stakes are this high, such 
failures unacceptably threaten the very legitimacy of the judicial process."

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.

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 2 years and 4 months.) In 1 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. 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.

The right of condemned inmates to habeas review "should not depend upon whether 
their court-appointed counsel is competent enough to comply with [the] statute 
of limitations," 1 federal appeals judge, Beverly B. Martin, wrote in an 
opinion earlier this year. She added that allowing some inmates into the court 
system while turning others away because of how their lawyers missed filing 
deadlines was making the federal appeals process "simply arbitrary," she added.

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.

Passing habeas reform

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.

That pairing created political tension, both between the major parties and 
within them. Some Democrats supported the antiterrorism measures but viewed the 
habeas restrictions as the unnecessary circumscribing of a fundamental right. 
Some Republicans backed the habeas restrictions but feared the possible 
government excesses that might come from expanding surveillance authorities and 
other law enforcement powers also included in the measure.

"Why is it necessary to link the death penalty and the constitutional 
guarantees of habeas corpus to a terrorism bill?" Rep. Joseph P. Kennedy II 
(D-Mass.) asked during the debate in the House. "This is just a political deal. 
It is a political deal to get votes on the right."

By the mid-1990s, American support for the death penalty had climbed to 80 %, 
its highest point since Gallup began polling on the issue in the 1930s. Public 
patience with the appeals process also was waning as the typical time between 
sentencing and execution stretched to more than a decade.

"Somehow, somewhere, we are going to end the charade of endless habeas 
proceedings," the chairman of the House Judiciary Committee, Rep. Henry J. Hyde 
(R-Ill.), declared in the debate over the antiterrorism law. "And this bill is 
going to do it."

But important changes in the legal landscape already were raising concerns 
among some civil libertarians. 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."

4 former U.S. attorneys general who were opposed to the legislation - 2 
Democrats and 2 Republicans - wrote to Clinton to urge that any filing 
deadlines on habeas petitions take effect "only upon the appointment of 
competent counsel."

As supporters of the bill lined up 4 competing attorneys general behind their 
position, Hyde announced that he had a "celebrity to trump all of those 
attorneys general" on the matter. "His name," Hyde said, "is President 
Clinton."

Clinton, who had initially opposed linking habeas reform to the antiterrorism 
measures, changed his mind - as he had on key facets of welfare reform, 
criminal sentencing and other domestic policies. As he began campaigning for 
reelection, he described the delays in death-penalty litigation as 
"ridiculous." The streamlining of appeals should begin with the Oklahoma City 
bombing cases, he announced.

The ranking Democrat on the Senate Judiciary Committee, Joe Biden of Delaware, 
introduced amendments to soften several of the habeas restrictions in the bill. 
But he left the one-year filing deadline in place, and he supported the bill 
when it came to the floor. At one point, he proposed to limit the 1-year 
deadline to only federal prisoners, but he eventually supported the bill that 
came to the floor without that change.

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.

Myriad mistakes

The hurried and often convoluted draftsmanship of the law's habeas provisions 
began to come under criticism almost as soon as it took effect. The ambiguities 
of the measure left a host of questions for the courts to answer, and with each 
passing year, the relevant case law has grown more complex.

Under the 1996 law, the 1-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 1st of 3 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.

Post-conviction petitions, which include federal habeas corpus appeals, can go 
beyond the trial to deal with anything from new evidence to the discovery of 
juror misconduct.

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. They must also navigate an ever-shifting landscape of appellate 
deadlines and procedures, identify promising issues and craft a detailed 
petition - all while under the pressure of defending a client whose life may 
depend on their success.

Yet while the law guarantees that indigent death-row inmates have a 
court-appointed attorney in federal habeas corpus proceedings, it does not 
stipulate that the attorney must be competent. The Constitution guarantees the 
effective assistance of counsel at trial, but gives no similar assurance for 
lawyers doing habeas work. 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.

Motions or petitions filed properly in the state courts can suspend the federal 
deadline. But sometimes the motions are filed improperly, with lawyers 
neglecting to secure authorization to practice in a given court or failing to 
pay a required filing fee.

In at least 3 cases since 1996, attorneys filed papers in the wrong court. One 
appellate attorney discovered that his predecessor missed the habeas deadline 
after failing to even order the client's case file. Another 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, Fla., 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."

In 2 cases out of Texas, U.S. district court judges granted requests for a 
filing extension - setting, in effect, what appeared to be a new deadline - 
then enforced the old deadline after the petition was filed. "Parenthetically, 
this court may have erred in assuming that it had the authority to extend the 
statutory deadline," 1 judge later acknowledged.

Sometimes, courts waited too long to appoint habeas counsel. In California, 
where the courts have struggled mightily to find attorneys for capital appeals, 
at least 6 inmates received an attorney only after their deadline had passed - 
by more than 5 years in 2 cases.

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. One attorney in 
Texas had twice before been reprimanded for misconduct, while another Texas 
lawyer had twice been put on probation by the state bar. 2 weeks after being 
appointed in the capital case, he was put on probation again.

In Mississippi, Willie Jerome Manning's 1st appointed attorney withdrew, citing 
his "most limited knowledged [sic] and familiarity with post-conviction 
proceedings at all." A 2nd attorney also withdrew, citing his lack of 
qualifications. A 3rd attorney was appointed - by a court order that was 
misfiled, adding to the delays - 7 months after Manning's habeas deadline.

2 other men facing death sentences complained that their lawyer had a drinking 
problem - and they had the same lawyer. "Damn near fell out of his chair," 1 of 
the inmates wrote of the man in a letter to the lawyer's co-counsel.

As deadlines approached, some inmates pressed their attorneys for information. 
"I'm getting a little worried," 1 wrote. Another pleaded, "I want to know 
what's going on!"

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.

"[P]lease file my 2254 Habeas Petition immediately," 1 defendant wrote in a 
typical plea to his lawyer. "Please do not wait any longer ... again, please 
file my 2254 Petition at once."

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."

In the tracing of blame, the case of Mississippi death-row inmate Alan Dale 
Walker offered a triple bank shot. Attorneys for the state put a wrong date in 
a court filing. The Mississippi Supreme Court incorporated that error into an 
opinion. An attorney for Walker then used the opinion to calculate the filing 
deadline. Walker had a 2nd attorney who had separately calculated the deadline, 
without relying on the court's opinion. He came up with a different date - but 
his date was wrong, too.

Pitfalls and procedural issues

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. Of the 80 capital cases with a missed deadline, 
Florida has 37 - the most of any state by far.

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).

The complexities of habeas law often have challenged even the most 
conscientious defense attorneys.

Michelle Kraus is an experienced defense attorney in Fort Wayne, Ind., who 
concentrates almost entirely on trial work. At the request of a lawyer friend, 
she signed on to assist with a state-level appeal for Gregory Scott Johnson, 
who had been convicted in 1986 of beating an 82-year-old woman to death. But 
after her friend left the case, Kraus wound up taking it to federal court, 
where she confronted a steep learning curve.

"It was overwhelming, getting grounded in it," Kraus says. She got the standard 
text on habeas practice and procedure - at that point, the 2 volumes ran to 
some 2,000 pages - and read it front to back. She also traveled to Atlanta to 
attend a 1-week seminar on capital litigation, taught by some of the country's 
leading experts.

Kraus devoted long hours to Johnson's petition, which included a claim that 
prosecutors failed to disclose evidence that might have reduced Johnson's 
culpability and perhaps spared him the death penalty. She dropped the petition 
in the mail 3 days before deadline, but it arrived 1 day late.

"Counsel bungled the job," the federal appeals court wrote in 2004. Instead of 
using 1st-class mail, Kraus should have opted for FedEx or a courthouse 
messenger, the court said. The person held accountable would be Johnson. 
"[L]awyers are agents," the court wrote. "Their acts (good and bad alike) are 
attributed to the clients they represent."

Telling Johnson about her mistake - and how he would be punished for it - "was 
probably the hardest thing I've ever done," Kraus says. She stayed on the case 
- "he forgave me," she says - and was with Johnson for his last meal before he 
was executed in 2005.

But Kraus has declined to do any more habeas work since then.

"The pitfalls are there, and I fell into one," she recalled. "And it was 
horrible."

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.

One of the authors of the two-volume legal guidebook on habeas practice, James 
S. Liebman, a law professor at Columbia University, says the complexity and 
vagueness of the 1996 law has given lawyers all kinds of procedural nuances 
over which to fight. An important result has been that prosecutors have more 
ways to get a petition thrown out on procedural grounds - an advantage that 
they have seized "energetically and assiduously," Liebman says.

The guidebook, now in its 6th edition, has grown over the years to 2,700 pages. 
"There are more and more pages," he said, but "less and less justice."

Confronted with late filings, courts have embraced a remedy called "equitable 
tolling," which allows judges to waive a missed deadline in some circumstances. 
But courts limit its application to extraordinary situations, and the standard 
has been applied unevenly around the country.

Plain negligence - or a "simple gaffe," as the court labeled the mistake Kraus 
made - generally will not merit a judge's forbearance. But abandoning clients 
or lying to them often will constitute grounds for setting the deadline aside.

In the 80 capital cases, courts have granted equitable tolling in about 1/3. At 
least 3 of the inmates whose habeas petitions were reviewed went on to receive 
new trials.

The courts usually won't forgive a missed deadline if an attorney 
misinterpreted the law, a mistake that gets categorized as negligence. But a 
federal court in Ohio did so in the case of Michael Keenan, a landscaper who 
was convicted of murdering a young man found in a Cleveland park. "He would 
have been executed," Keenan's lead defense lawyer, Vicki Werneke, said in an 
interview. "He came dangerously close to getting his whole case dismissed."

When Werneke came onto the case in 2008, after Keenan had been granted 
equitable tolling, the state's case was already showing signs of unraveling. In 
2012, a U.S. district court judge considered Keenan's habeas petition and 
ordered a new trial. Citing the state's "egregious prosecutorial misconduct" in 
withholding evidence, an Ohio county judge later ruled that prosecutors can't 
retry Keenan, allowing him to go free.

The state's appeal of that ruling is now pending before the Ohio Supreme Court.

Race against time

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."

With such revelations, Kuenzel's claim of innocence has attracted an array of 
prominent supporters. 3 former district attorneys - Robert M. Morgenthau of 
Manhattan, Gil Garcetti of Los Angeles and E. Michael McCann of Milwaukee - 
filed a brief with the Supreme Court saying the newly surfaced evidence 
"completely eviscerated" a prosecution case that they characterized as "weak, 
to say the least."

Kuenzel's backers have also mounted a polished publicity campaign arguing that 
he is innocent, including a video with actor Sam Waterston, who played a 
prosecutor on "Law and Order."

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 3 years.

When the 1996 law took effect, Kuenzel had one year to file his habeas 
petition. But the law included a provision that would suspend the normal 1-year 
statute of limitations if an inmate had a "properly filed" petition pending in 
state court, essentially stopping the clock on the appeals process.

A petition that Kuenzel had filed in an Alabama circuit court had been 
dismissed as untimely in 1994, but then restored to the docket in May 1996. 
This led Kuenzel and his attorney to believe he had a "properly filed" state 
petition pending, and that the countdown toward the appeals deadline had 
paused.

But three years later, the circuit court reversed itself again at the request 
of state prosecutors, which was interpreted by a federal court to mean that the 
clock had been ticking all along.

"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."

The state has written in court files that the newly disclosed evidence "fails 
to even come close" to exonerating Kuenzel. "It is time for this case to 
finally come to an end," wrote the state, which 2 months ago asked for an 
execution date to be set.

Sentenced to death at 26, Kuenzel is now 52. In a letter to this reporter last 
month, he wrote that he felt like he was listening to an old grandfather clock 
as it wound down, knowing he would be killed when it stops. He can't rewind the 
clock, he said, because "the courts have shut the hole."

Guarding against racial prejudice

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."

2 days before Moynihan's speech on the Senate floor, one of the jurors who 
voted to send Kenneth Rouse to his death, Joseph Baynard, signed an affidavit 
acknowledging that he had deliberately withheld the fact of his mother's murder 
so that he could get on the jury.

Baynard, who died last year, acknowledged in the affidavit that his decision in 
the Rouse case might have been colored by "bigotry." A Duke University law 
student who interviewed the former juror for Rouse's appeal also filed a 
separate affidavit detailing Baynard's racial invective.

At that point, Rouse's case was still in the state courts, which ultimately 
denied him a new trial. His 1-year habeas deadline came on Feb. 7, 2000, and 
his lawyers, who miscalculated the date, filed their petition on his behalf 1 
day too late.

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."

Despite the federal courts' refusal to hear his case, Rouse got 1 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 4 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.

(source: Washington Post)