Advocate for Mercy

Do you want to be free or do you want to be safe?

2010-03-28T14:17:00.000-07:00

Reginald Clemons, a Missouri death row inmate, awaits a hearing on whether there is new evidence of his innocence. A recent news story, which can read at the link below, reveals that the Missouri Attorney General recently told the court handling Mr. Clemons’s appeal that physical evidence, some of which may contain DNA, has been discovered in law enforcement files. This evidence may not have been available to Mr. Clemons’s trial attorneys. Like most online news stories, this one drew many comments, some welcoming the inquiry into Mr. Clemons’s evidence, and some condemning it. One comment (not on the website listed below) was, “Why is this murderer breathing my air?”

A recent story on NPR concerned released prison inmate Felix Aponte, who donated his kidney to save the life of another man he met in prison. That link is below, too. Mr. Aponte explained, “I wanted to do something good in my life for the first time. All I've done is like, mischief.” This story generated a vigorous dialogue, with some people concluding that since the “hero” of the story was a convicted felon, his good deed should be discounted.

These news items and comments reminded me of a story in one of my favorite children’s books, Wayside School is Falling Down, by Louis Sachar. Myron, a student at Wayside School, feels trapped by school rules. After lunch, instead of going back to his classroom, he goes down to the dark, mysterious school basement. There, he meets a man who asks him, “Do you want to be free, or do you want to be safe?” He explains that if Myron wants to be safe, he’ll have to follow all the rules, go to school, brush his teeth. . . Or he can be free. “I want to be free,” says Myron. He signs a paper “written in some kind of foreign language.” Thereafter, Myron doesn’t have to do anything the teacher says, and there is nothing she can do about it.

Deciding to be free requires us to realize that the world actually does not revolve around us. The air we breathe doesn’t belong to me, or to Reggie Clemons, or to the man who commented on the story. Being free also requires us to realize that the world is uncertain, sometimes apparently written in a foreign language. It is easy to say, “Well, the jury convicted Reggie Clemons, or Felix Aponte, and the appeals court affirmed, so they must be guilty, and we can forget about them.” That is the safe way. But it is not the free way. Freedom requires us to let go of our prejudices and admit the possibility of uncertainty. Of course, even before Myron signed the paper, he didn’t have to sit in his seat and brush his teeth. He just had to accept the consequences if he didn’t. In the same way, if we let go of the notion that everyone convicted by a court is guilty and can never change, we will be faced with uncertainty. Sometimes the results will be good. Sometimes they will be bad. But that’s what freedom entails.

There are advantages to being safe. Life is predictable, not upsetting. Risks are avoided. And there are advantages to being free. Freedom brings adventure, expanded possibilities, new experiences. So, do you want to be free, or do you want to be safe?

Clemons: http://www.ksdk.com/news/local/story.aspx?storyid=197452
Aponte: http://www.npr.org/templates/story/story.php?storyId=124574748&sc=fb&cc=fp

Kicking the imprisonment habit

2010-02-19T15:28:00.000-08:00

Over two years ago, I wrote a piece for this blog called “Addiction to imprisonment.” Now, with the economy in distress, some government and judicial leaders are looking at kicking the habit. Consider the statements of Judge William Ray Price, Jr., the chief justice of the Supreme Court of Missouri, at his recent “State of the Judiciary” speech:

“For years we have waged a “war on drugs,” enacted “three strikes and you’re out” sentencing laws, and “thrown away the key” to be tough on crime. What we did not do was check to see how much it costs, or whether we were winning or losing. In fact, it has cost us billions of dollars and we have just as much crime now as we did when we started. We have created a bottleneck by arresting far more people than we can handle down through the rest of the system. . . . It does no good to commit resources to law enforcement and to arrest criminals if you don’t know what you are going to do with them, or you cannot afford to do what you should with them, after they have been arrested. It does no good.”

Judge Price went on to address the crisis in the Missouri Public Defender System and the inequities in the prosecution of offenses in Missouri, both topics that deserve posts of their own. Then he went on,

“Perhaps the biggest waste of resources in all of state government is the over-incarceration of nonviolent offenders and our mishandling of drug and alcohol offenders. It is costing us billions of dollars and it is not making a dent in crime. Listen to these numbers. In 1994, shortly after I came to the Court, the number of nonviolent offenders in Missouri prisons was 7,461. Today it’s 14,204. That’s almost double. . . . In 1994, appropriations to the Department of Corrections totaled $216,753,472. Today, it’s $670,079,452. The amount has tripled. And the recidivism rate for these individuals, who are returned to prison within just two years, is 41.6 percent. . . . [T]he simple fact is, we are spending unbelievable sums of money to incarcerate nonviolent offenders, and our prison population of new offenders is going up, not down -- with a recidivism rate that guarantees this cycle will continue to worsen at a faster and faster pace, eating tens of millions of dollars in the process. Missouri cannot afford to spend this much money without getting results. The problem is that we are following a broken strategy of cramming inmates into prisons and not providing the type of drug treatment and job training that is necessary to break their cycle of crime. Any normal business would have abandoned this failed practice years ago, and it is costing us our shirts.”

And, Judge Price proposed a solution: “We need to move from anger-based sentencing that ignores cost and effectiveness to evidence-based sentencing that focuses on results—sentencing that assesses each offender’s risk and then fits that offender with the cheapest and most effective rehabilitation that he or she needs.”

No one who follows the Supreme Court of Missouri would describe Judge Price as soft on crime. So when he shows signs of having awakened to the imprisonment addiction problem—aptly described as “anger-based sentencing—it gives me real hope that change is possible.

Judge Price’s proposals, although they suggest a major change in direction, are not radical enough. He seems to think that whatever we do to persons convicted of violent offenses is still all right. (“Violent offenders need to be separated from us so they cannot hurt innocent men, women or children, regardless of the cost.”) Actually, there have been recent advances in the treatment of violent offenders that show significant promise. In an Australian study of the effects of restorative justice programs, which allow crime victims to interact with the offenders, “In the first two years after arrest, violent offenders who participated in conferences had about 50 percent less reoffending than those who went to court.” (The study also noted positive effects for victims. For example, “Almost half of the court-assigned victims said they would harm their offenders if they had the chance, compared to only 9 percent of conference participants.”) See http://www.realjustice.org/library/jerryleeresearch.html. Interestingly, restorative justice techniques seem to reduce recidivism more among violent offenders than non-violent offenders. That’s not an argument for locking up more non-violent offenders; it just means that other techniques may be needed for rehabilitation for them.

But the major good news here is the suggestion of a shift in focus back to rehabilitation from “anger-based sentencing.” That will have several salutary effects, if it occurs. It will bring marginalized persons back into the work force and into full participation in their communities. It will save money. And it will fulfill the admonition of Jesus that “I tell you the truth, whatever you did for one of the least of these brothers of mine, you did for me.” Matt. 25:40, NIV.

Keeping the Courts' Eyes on the Prize

2010-01-01T10:43:00.000-08:00

First, an update to an earlier post, “The Statute of Limitations is Not a Technicality.” At the time that post was written, a panel of the United States Court of Appeals for the Fifth Circuit had overturned the conviction of James Ford Seale for violating the civil rights of Charles Moore and Henry Dee, who were kidnapped and murdered by the Ku Klux Klan in Mississippi in 1964. The reversal was based on a ruling that the statute of limitations for the offense charged had expired before the charge was filed. However, the en banc Fifth Circuit (a group made up of all of the judges of the Fifth Circuit in active service), voted to grant rehearing. After argument, the vote of the en banc judges on whether the conviction should be affirmed or reversed was evenly divided. Under court rules, this had the effect of reinstating the judgment of conviction, although the decision to do so is not precedent for further decisions on the issue.

One way to look at this development would be to say, “Well, I guess the statute of limitations is a technicality after all!” Another way to respond would be to say, “Hard cases make bad law.” A quick Google search of this old saying shows that it may have originated, at least in print, in W. S. Holdsworth’s History of English Law, published in 1926. (Other references suggest it was first said by Oliver Wendell Holmes.) What this saying means is that when a case presents facts which seem to call for one resolution, while the law is on the other side, the facts generally win. I am reminded of a drug case I lost several years ago despite what appeared to be a meritorious search and seizure violation. I asked the lawyer for my client’s co-defendant why he thought this had happened. “Oh,” he said, “It’s the too much dope rule.” That is, the judges decided there was too much dope in the case for the defendants to win. In Mr. Seale’s case, apparently half of the judges on the Fifth Circuit Court of Appeals were unwilling to allow him to go free, despite the fact that the law would seem to require that result.

There is a certain satisfaction in seeing a case come out the way the facts seem to dictate. I’m sure NPR Commentator Juan Williams, whose criticism of the earlier Seale opinion spurred me to write the earlier post, was gratified when Mr. Seale’s conviction was ultimately upheld. But there is a danger in allowing this satisfaction to go too far. Recently, I was reading a Texas case in which a conviction for murder was reversed because of grand jury error. The prosecutor in that case admitted that, in violation of long-standing and clearly stated Texas statutes, he routinely allowed police officers to enter the grand jury room and cross-examine witnesses. The court reversed the conviction, finding that absent this violation, it was unlikely that the defendant would have been indicted. The court then took the opportunity to explain the decision:

We cannot countenance the State's purposeful violation of the law. The duty
of public officers to follow the letter of the law was aptly described as
follows:

"No man in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the government, from the highest to the lowest, are creatures of the law, and are bound to obey it. It is the only supreme power in our system of government, and every man who by accepting office participates in its functions is only the more strongly bound to submit to that supremacy, and to observe the limitations which it imposes upon the exercise of the authority which it gives."

United States v. Lee, 106 U.S. 196, 220. . . (1882). . . .

We are mindful that a finding of harmful error here may mean this case will be tried again. Regretfully, witnesses will be inconvenienced and the finality of justice sought by those who were touched by this child’s death will be disturbed. Any benefit that society will derive from rendering the just result in this appeal cannot, and will not,
assuage the suffering that a second trial may cause those close to the victim. Nevertheless, we are duty bound to uphold the law and follow the old
adage that “two wrongs do not make a right.” If the State is able to avoid a just result in this case, its prosecutors will be able to violate these statutes with impunity and visit an injustice upon every citizen who comes under scrutiny by a Potter County Grand Jury. The statutory protections, adopted by the Legislature to level the field for an accused, will be substantially eroded and we will be at risk of losing the
benefit of statutory procedures intended to protect our constitutional right to indictment if these violations are simply swept aside.

Regarding the cost of a second trial, if one follows, unfortunately this cost would be
borne by taxpayers who had no hand in the State’s error. This is particularly
unfortunate because the State’s error, as well as this possible cost, could have
been avoided if the State had simply obeyed the law. Something the State
requires of its citizens on a daily basis.
Mason v. State, 290 S.W.3d 498, 511 (Tex. App. – Amarillo 2009, pet. granted). It should be noted that this Court’s opinion will not be the last word on this case. The notation “pet. granted” in the citation means that the Texas Court of Criminal Appeals, that state’s highest court for criminal cases, has agreed to review the Amarillo court’s opinion. So, we may find, once again, that hard cases make bad law. In the meantime, though, we can thank the Texas Court of Appeals, Amarillo district, for reminding all of us, and all judges, that “[W]e are duty bound to uphold the law and follow the old adage that ‘two wrongs do not make a right.’”

Guilty Pleas, Please

2009-04-18T19:58:00.000-07:00

I’ve handled many cases, misdemeanor and felony, over the last thirty-plus years as both a prosecutor and defense lawyer. And most of them have ended in guilty pleas. Guilty pleas are a result of negotiations between the defense and the prosecution. As a prosecutor, I learned to carefully consider the evidence and the appropriate punishment before making an offer. I also learned to consider, but not to be bound by, the wishes of crime victims. They certainly have a right to input, but sometimes cannot see the case objectively as required for a fair prosecution. As a defense lawyer, I've learned that the way to get good guilty plea bargains is to prepare for trial. I remember once discovering through a careful study of the prior conviction papers the prosecution proposed to use to enhance my client’s punishment that the prior conviction was invalid. That led to a MUCH better plea bargain. The other thing I learned about plea bargaining was to take the time to make sure the client understood exactly what was going on. Otherwise, the plea can blow up, either in court or later.

Do people like to plead guilty? Not usually, of course. Some of them know they are getting a better deal than they perhaps deserve, and are content. Some of them are angry at the time, but then calm down. I remember a letter I received from such a client, apologizing for blowing up at me in court and thanking me for doing a good job for her. All of them, though, end up accepting that there is evidence that will convict them of a crime, and most of them accept responsibility for what they did. That, it seems to me, is what is supposed to happen in the criminal justice system.

Do innocent people plead guilty? Until DNA exonerations began, I would have said that this was very rare. Now I am not so sure. It does appear that some accused persons are so frightened and discouraged about the prospects for being found “not guilty” that they will accept a known punishment for something they didn’t do. I hope that hasn’t been true of any of my clients. I hope that they knew that I would fight hard for them if they decided to go to trial. I can’t say that I’ve won many criminal trials, but I can say that I fought hard!

Are guilty pleas a good idea? Yes. Sometimes it is suggested that a person who pleads guilty “got off.” Rest assured that the person who pleads guilty and gets a twenty-year sentence goes to prison just like the person who goes to trial and gets a twenty-year sentence. Does the person who pleads guilty get a shorter sentence? Usually. But that’s fair. This is a person who has decided to accept the consequences of the charge and save everyone the time, expense and trouble of a trial. And that’s worth something. There is no clear formula that says, “This crime is worth x number of years, while that crime is worth y number of years. Sentences for the same crime vary from person to person, from state to state, from country to country. Rewarding those who make the system work smoothly makes sense, and doing so by shortening the sentence is a sensible way to do it.

Let’s get real!

2009-03-14T18:40:00.000-07:00

On February 26, 2009, the Eighth Circuit Court of Appeals reversed the dismissal of Larry Streu’s habeas corpus petition and remanded for a hearing. The question before the court was whether Mr. Streu had filed his petition on time. To decide this question, the court had to determine whether the time during which his motion to reopen his Missouri post-conviction action was pending in the Missouri courts counted against the time permitted by the federal habeas corpus statute for the filing of a habeas corpus petition. The court decided that the time did not count, that is, that the statute of limitations was “tolled” while the state court motion was pending in the Missouri courts. So far, so good. This result will likely allow Mr. Streu to have his constitutional arguments about why he was wrongfully convicted heard in federal court. But in the course of its opinion, the court suggested that Mr. Streu, who, until I was appointed to represent him in the Eighth Circuit, had been proceeding without a lawyer, might have filed the state court motion in order to give himself more time to file the federal petition. What’s wrong with this idea? Two things. First, Mr. Streu wants to get out of prison. He has no incentive to delay filing anything. The sooner he gets things filed, the better off he will be. Of course, since he is not a trained lawyer, and doesn’t have access to much in the way of legal research tools, filing court papers is a laborious process. But he certainly has no incentive to delay. Second, even if Mr. Streu did want to buy himself more time to prepare his federal petition, how would taking the time to file a state motion do that? Filing the state court motion takes just as much time and effort as filing a federal petition. So why did Mr. Streu file a state court motion? He did so because in general, issues that weren’t raised in state court can’t be raised in federal court. By filing his state court motion, he was trying to let the state court rule on an issue that he thought his state court lawyers had missed. If the state court had granted relief, that would have been fine with him, and he would not have needed to go to federal court at all. Obviously, this sort of filing should be encouraged by the federal court, not discouraged. The Streu decision will have the effect of doing that, and the federal court need not worry about delay.

Fred Revels Goes Home

2009-02-15T16:38:00.000-08:00

The first entry in this blog concerned the decision of the Eighth Circuit Court of Appeals in the case of Frederick Revels v. Mary Sanders, holding that the State of Missouri’s formula for determining whether Mr. Revels could be discharged from the state mental hospital where he had been confined for many years was unconstitutional. The State of Missouri unsuccessfully challenged that decision in the court en banc and in the United States Supreme Court. Finally, last month, Fred received a new hearing in the circuit court of Jackson County, Missouri, and was granted an unconditional discharge. The court concluded, “Mr. Revels has met his burden of proving by clear and convincing evidence that he does not presently have a mental disease or defect that renders him dangerous to himself or others.” Therefore, the court, “with a great deal of angst and trepidation,” ordered his unconditional release. In the interim between the decision and his release, Mr. Revels has been diagnosed with some serious medical problems. It is hoped that in this case, justice delayed will not turn out to be justice denied.

The Statute of Limitations is NOT a Technicality

2008-09-15T17:21:00.000-07:00

In 1964, two Mississippi teenagers, Charles Moore and Henry Dee were kidnapped and murdered by the Ku Klux Klan. James Ford Seale was arrested shortly after the bodies were found, but prosecutors judged there was insufficient evidence to convict him and did not file charges. A conspiracy of silence prevented his prosecution until 2007, when an elderly KKK member told the story in exchange for immunity. Seale was prosecuted 43 years after the crime occurred for the offense of kidnapping. He was convicted and sentenced to two life sentences.

On September, 9, 2008, the Fifth Circuit Court of Appeals overturned the conviction. The Court found that the five year statute of limitations had run long before the prosecution was commenced, and that the case was barred. Commenting on this action, Juan Williams, one of my favorite correspondents for National Public Radio, said that witnesses “stonewalled local officials and even congressional committees by claiming their Fifth Amendment right.” He commented, “It’s just frustrating to see [the case] overturned on a technicality.”[1]

I remember, around the time of the murders of the teens, going with my father to a meeting in Indianapolis, Indiana, in support of Dr. Martin Luther King’s march in Selma, Alabama. I did a fifth grade research project on the civil rights movement. I have been fighting racial discrimination and violence most of my life. I have no sympathy for Mr. Seale, nor do I condone the negligence and inaction of prosecutors in this matter.

But when we start talking about “technicalities,” I say, the Statute of Limitations is not a technicality. Nor is the Fifth Amendment protection against self-incrimination. Here’s what the Fifth Circuit had to say about the purpose of the statute of limitations in the Seale opinion:

[C]riminal limitations periods “provide predictability by specifying a limit beyond which there is an irrebuttable presumption that a defendant’s right to a fair trial would be prejudiced.” United States v. Marion, 404 U.S. 307, 322 (1971); see Toussie v. United States, 397 U.S. 112, 114-15 (1970) (“Such a limitation is designed to protect individuals from having to defend themselves against charges when the basic facts may have become obscured by the passage of time and to minimize the danger of official punishment because of acts in the far-distant past.”)

Or, as the Supreme Court put it in United States v. Kubrick, 444 U.S. 111, 117 (1979)

These enactments are statutes of repose; and although affording plaintiffs what the legislature deems a reasonable time to present their claims, they protect defendants and the courts from having to deal with cases in which the search for truth may be seriously impaired by the loss of evidence, whether by death or disappearance of witnesses, fading memories, disappearance of documents, or otherwise.

It is true that the Fifth Circuit spent a lot of its opinion deciding which statute of limitations applies to Mr. Seale, since the law of limitation has changed several times in the 43 years since Moore and Dee were killed. Maybe that’s what makes Juan Williams think the case turns on a “technicality.” But statutes of limitations are an important part of the framework of laws which protect all of us from an overzealous justice system. In this case, they protect us from having to explain where we were on a particular afternoon 43 years ago, something that an innocent person would likely find quite hard to do.

So, although I would like to see Mr. Seale receive the consequences of what he did 43 years ago, I am not willing to sacrifice the rule of law to that end. Nor was the Fifth Circuit: “While we are mindful of the seriousness of the crimes at issue, we cannot abdicate our duty to faithfully apply a valid limitations period.” Had the Fifth Circuit abdicated that duty, this would have been a particularly egregious example of that other maxim, “Hard cases make bad law.”
[1] http://www.npr.org/templates/story/story.php?storyId=94449413

Sigh of relief

2008-07-14T19:40:00.000-07:00

The United States Supreme Court’s latest decision in the case of the Guantanamo Bay detainees (Boumedienee v. Bush, decided June 12, 2008) made me heave one. I don’t think most Americans realize how lucky they are to have a constitution which doesn’t let the government lock people up for a long time just because the government thinks they are dangerous, scary, or disagreeable. I have been alternately furious and terrified by the Bush administration’s position that because there are terrorists in the world, they can decide that anyone is an “enemy combatant” and keep him locked up forever. No trial, no charge, no hearing, no nothing.

I’m reminded of the poem attributed to Nazi resistor Pastor Martin Niemoller:

First they came for the Socialists, and I didn’t speak up,
because I wasn’t a Socialist.
Then they came for the Trade Unionists, and I didn’t speak up,
because I wasn’t a Trade Unionist.
Then they came for the Jews, and I didn’t speak up,
because I wasn't a Jew.
Then they came for me, and there was no one left
to speak up for me.

(I’ve learned from Wikipedia that Pastor Niemoller may not have written this poem, and that there are many variants. I still like it.)

The poem reminds us that what we do to those who are dangerous, or those whom Jesus calls “the least of these,” comes back on us. That’s what the Bush administration needs to be reminded of. Also the dissenters on the United States Supreme Court, who let fear-mongering overcome their duty to the Constitution.

I don’t want to close without commenting on the scariest comment I heard about this decision. That came from Newt Gingrich, who described it as a decision by “five lawyers.” That is exactly the sort of lawyer-bashing promoted by Dick the Butcher, whose statement, in Shakespeare’s King Henry VI, "The first thing we do, let's kill all the lawyers," was intended to keep his own treachery from being discovered.

Access to justice and habeas corpus reform Part II

2008-05-24T17:01:00.000-07:00

The second major change in habeas corpus created by the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA) was a new limitation on the granting of relief. Under prior law, the state court's application of constitutional principles was reviewed de novo by the federal court which was not required to give any sort of deference to the state court's analysis. AEDPA provides, however, that a federal court may only grant relief for a state court's constitutional error if that error was an unreasonable application of federal constitutional law as decided by the United States Supreme Court.

This provision has had the effect of producing many federal court decisions that say, "We think the state court was wrong about the constitution, but not unreasonably wrong, so the conviction stands." Why state prisoners should not have the benefit of the United States Constitution is beyond me. I understand that many people think people who have been convicted of crimes are a different species from the law-abiding, but that is simply not the case.

If we do not speak out for those who seem not to deserve it, there will be no one to speak out for us.

Access to justice and habeas corpus reform Part I

2008-05-18T13:53:00.000-07:00

In the Anti-Terrorism and Effective Death Penalty Act of 1996, commonly known as "AEDPA", the United States Congress abruptly "overhauled" the remedy of habeas corpus available in federal court to persons with criminal convictions. Habeas corpus has traditionally been the remedy which provided a check on unjust or ineffective state criminal procedures. When habeas corpus relief is granted, the federal court can order a state court to release, retry, or re-sentence the petitioner. Because a habeas corpus petitioner must ordinarily raise his grounds for relief in state court before proceeding in federal court, habeas corpus serves as the remedy of last resort for many persons who are the victims of unjust conviction or sentence.

For many years before 1996, some law-and-order advocates had suggested that habeas corpus relief was too readily available and needed to be limited. These concerns had been overcome by the view that injustice needed a remedy, even if that remedy was sometimes long in coming or inconvenient to administer. In the wake of the Oklahoma City bombing, however, the law-and-order tidal wave swept over these calmer heads, and AEDPA was passed. The AEDPA made two primary changes in the habeas corpus remedy which greatly limit the access of wrongfully convicted persons to justice.

The first of these changes, which will be discussed in this post, was the enactment of a statute of limitations. Prior to AEDPA, there had been no deadline for filing a habeas corpus action. Most successful actions were filed within a relatively short time after state proceedings were complete, but a small number of persons obtained relief years after their convictions and sentences. This was not generally true in death penalty cases; in those cases the pressure of execution dates usually resulted in prompt filings. However, to fix this non-problem, the AEDPA established a one-year statute of limitations. The year begins when the conviction and sentence become final in state court. It is tolled while post-conviction proceedings are pending in state court. Once those proceedings are over, the year starts running again from the point at which tolling began. This sounds rather straightforward, but in practice, it has been difficult to determine both when the conviction and sentence become final and when post-conviction proceedings are pending. Different states have different procedures and when they start and end is not always clear. This has resulted in a number of cases in which either the litigant or his counsel has miscounted the deadline by a few days, and petition is dismissed as a result of the error. The situation is particularly difficult for those petitioners who have counsel who make a mistake about the deadline. The courts have been extremely reluctant to make exceptions to the deadline in those cases, holding the client accountable for the lawyer's mistake. Ineffective assistance of counsel is not considered to be a legal excuse for failing to meet the habeas corpus statute of limitations.

Holding a client accountable for her lawyer's mistake about the statute of limitations makes sense in the context of the ordinary civil case. If my lawyer fails to file suit in time on my claim against the person who ran into my car, I can sue my lawyer for malpractice, and if my suit had merit, I will be entitled to a judgment against my lawyer for the damages I would have recovered in the lawsuit. In that situation, the defendants in the lawsuit get the benefit of the statute of limitations to which they are entitled, and I get the benefit of the damages to which I am entitled. Unfortunately, if my lawyer makes a mistake about my habeas corpus deadline, I can't sue my lawyer to get my conviction reversed. That can only happen in the habeas corpus action. So, as a result of my lawyer's negligence over which I have no control, I may find myself denied access to the courts. Since many people in this situation have court-appointed lawyers, they cannot even be faulted for picking the wrong lawyer. This result, while protecting the interest in finality that underlies the statute of limitations, is highly unjust to the petitioner.

What's the solution? One possibility would be to repeal the statute of limitations, but allow a defense of laches. If the state could show that the petitioner was or should have been aware of his ground for relief well before the petition was filed, and that the state's interests were harmed by the delay in bringing the action, dismissal would be appropriate. This is really the most just resolution of the problem, but it seems unlikely to win much support.

A less drastic solution would be to expand the doctrine of equitable tolling, now available only in very limited situations. If the delay is relatively short, little would be lost from the certainty of the statute of limitations to ease the requirements for equitable tolling to cover the situation where a lawyer makes a mistake. Most lawyers would prefer not to be in this situation, so it is unlikely that wholesale disregard of the statute would occur. Obviously, if the delay were several months, the burden would fall on the client to show that she diligently kept up with what her lawyer was supposed to be doing. If it were shown that the lawyer was recklessly negligent, for example that she failed to inform the client that there WAS a deadline, or did not know herself that such a deadline exists, disciplinary proceedings against the lawyer would serve to inform the bar that if they choose to accept such representation, they must inform themselves about the statutory requirements. The threat of such proceedings should be a sufficient deterrent to lawyers. Similarly, if a pro se litigant claimed total ignorance of the statute, barring his suit would be justified on the general principle that one is presumed to know the law. But an honest mistake about the limitation period which resulted in a filing which was not seriously late should not bar a pro se petition, either.

Addiction to imprisonment

2008-05-08T17:59:00.000-07:00

The American criminal justice system--and maybe Americans in general--are addicted to imprisonment. Recent studies show that 1% of Americans are in prison, a very high percentage. Few other countries routinely imprison people for stealing and drug offenses as we do. This addiction, like all addictions, is expensive. And, like other addictions, it creates its own economy. Economically depressed areas want prisons for the jobs they generate, but that requires prisoners to fill the beds. Of course, people who spend significant amounts of time in prison are likely to return, particularly since our society is highly intolerant of people who have been convicted of crime, done their time, and been released. We seem to want to show those who break the law that we are "mad as hell and just won't take it any more!" But returning anger for wrongdoing only generates anger in the wrongdoers. There has to be another way.

Freedom for NGRI defendant

2008-03-25T11:49:00.000-07:00

Some twenty years ago, my client Frederick Revels, in a drug induced psychotic rage, killed three members of his family. Initially, his mental condition made him incompetent to proceed. After he recovered, he was found not guilty by reason of insanity and placed in a mental institution. He has been there ever since! However, for at least 15 years, he has not received any psychiatric treatment. His doctors agree that his mental illness is in remission, and he is not dangerous. However, under Missouri law, Mr. Revels must prove not only that he is not dangerous, but that he will never again be dangerous. In a decision earlier this month, the Eighth Circuit Court of Appeals held this requirement unconstitutional. A motion for rehearing will likely be filed, but assuming this decision holds, Mr. Revels will likely be released after a new hearing.

2007-12-23T18:21:00.000-08:00