Tuesday, March 2, 2010

Supreme Court Reviews Death Row Conviction


Supreme Court Reviews Death Row Conviction

The Supreme Court reviewed on Monday whether a death-row inmate can still
challenge his detention in federal court after his state-appointed lawyer
missed the deadline for such a challenge, despite the convict's anxious
badgering. Florida, where the man was sentenced, argued that allowing
leniency for such "garden variety" attorney negligence cases would allow
for a wave of new death-penalty challenges. Justice Stephen Breyer looked
appalled and said, "We have a problem with the bar, don't we?"

Death-row inmate Albert Holland's initial lawyer, Bradley Collins, missed
the deadline to file a habeas corpus petition despite having almost a year
to prepare and despite persistent requests from Holland, who was convicted
in Florida of murdering a police officer, armed robbery, sexual battery
and attempted murder. He was sentenced to death in 1991.

Holland's ex-lawyer stopped replying to Holland's letters, and neglected
to keep him informed of the progress of his case.

Florida lawyer Todd Scher, with his own office, was appointed by the
Supreme Court to represent Holland. He argued that Holland was stuck with
his attorney which kept him from filing motions on his own behalf even
after "complete abandonment" by his lawyer. Scher said the lawyer's
conduct constitutes gross negligence, as opposed to mere negligence, and
therefore merits equitable tolling -- or acceptance of a late habeas

The Supreme Court has never held whether equitable tolling is available
under the 1996 Antiterrorism and Effective Death Penalty Act, which sets
the deadline.

Justice Samuel Alito criticized Scher's arguments as impractical. "The
difference between mere negligence and gross negligence, that's an
ephemeral distinction," he said. "But that's the one you one you think we
should draw."

Justice Anthony Kennedy said he didn't know if it would be fair to
distinguish between negligence and gross negligence if they lead to the
same result.

Chief Justice John Roberts voiced the same concern. "If the lawyer just
miscalculated and was off by one day, this case comes out the other way in
your view, right?" he asked of Holland's lawyer.

The lawyer replied that if such were the case, the court would be correct
in rejecting the plea. "That's an unfortunate mere mistake," Scher said,
and contrasted it with the "complete abandonment" of his client.

Roberts acknowledged the persistence that Holland showed in petitioning
the federal court, but seemed to remain unswayed. "I have trouble
understanding why that should make a difference," he said. "Why should he
be in better shape than somebody who says, 'I don't know anything about
this, I need a good lawyer, I'm trusting you?'"

"It's very hard to argue against equitable tolling," Roberts said. "But at
the same time, I think you do need a constraining principle that it
doesn't do away with the statute of limitations."

Florida Solicitor General Scott Makar argued that the deadlines should not
be manipulated, saying that if it were, many other "garden variety"
attorney negligence cases like it could follow.

Breyer criticized the broad sweep of Makar's argument. "You mean to imply
that earthquake, fire, flood, mad postman burns mail truck, et cetera?" he

Makar ultimately said that natural disasters could merit equitable

Breyer pounced. "If you are going to read it `in some cases you can do
it,' then I guess we are at a discussion of, is this one of those cases,"
he said.

Alito offered another scenario. "What if the lawyer lies to the client and
the client says 'my time is running out, have you filed federal habeas
petition?'" he asked, "And the lawyer says, 'yes, I filed it and here it
is.' And it has a forged date stamp on it?"

Makar replied that the court would still not be able to grant leniency.

But Breyer expressed sympathy for such cases.

"It's a little hard to see why you couldn't have a narrow standard but
just not rule out the possibility," he said. "There are odd thing that
happen in life. And just say. 'go look for this, see if it's truly
extraordinary, if it's fair, if he was diligent,' what about that?"

Roberts followed up. "Why isn't it extreme attorney incompetence to miss a
deadline?" he asked. Makar replied that such incompetence is "run of the

After filing the appeal to the Florida Supreme Court in 2003, Holland's
lawyer did not reply to Holland's requests for information on the appeal,
and in 2004, Holland tried to get rid of his lawyer, but his motion was

In 2005, Holland wrote to his lawyer from prison, asking, "If the Florida
Supreme Court denies my [appeals], please file my writ of habeas corpus
petition, before my deadline to file it runs out." The lawyer did not
respond to that letter or a 2nd letter asking if he had begun the habeas
corpus petition.

The Florida Supreme Court denied Holland's appeals at the end of 2005,
leaving him with 2 weeks to file a petition with the federal court. But
his lawyer did not notify him of the decision, and did not file a

On January of 2006, Holland wrote to his lawyer asking if there was any
news on the appeal, and mentioned that he was concerned about the deadline
to file with the federal court. Holland then did his own research and
discovered the ruling after he was allowed access to the prison's
documents. He immediately wrote a late habeas petition and mailed it the
next day.

Holland was eventually able to get a new lawyer. The attorney tried to get
the federal court to accept Holland's habeas petition in light of the
"extraordinary circumstances that were [both] beyond his control and
unavoidable even with diligence." But the district court refused the plea
for equitable tolling.

The 11th Circuit then denied Holland's appeal, saying it even a case of
attorney "gross negligence" would not be a sufficient reason.

(source: Courthouse News)

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