Unprepared or Inexperienced Lawyers and Harsh Deadlines Deny Appeals to People on Death RowNovember 19, 2014

The Marshall Project, an online news organization covering America's criminal justice system, launched this week with a two-part investigation examining how dozens of people condemned to death across the country have been denied review in federal court because their lawyers missed a filing deadline.

In 1996, the Anti-Terrorism and Effective Death Penalty Act (AEDPA) created a one-year statute of limitations period for filing a federal habeas corpus petition in all cases, including cases in which the death penalty has been imposed. Since President Bill Clinton signed the law, the deadline has been missed at least 80 times in capital cases.

Missing the deadline cost most of those people their opportunity to have a federal court review their cases, "arguably the most critical safeguard in the United States' system of capital punishment." Sixteen of those people have since been executed, including Chadwick Banks, who was executed in Florida last week.

Also published in the Washington Post, the investigative series reveals that condemned clients have lost their federal appeals because their lawyers missed the deadline by as little as a single day. "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 piece traces the history of the 1996 bill, which has roots in the "tough-on-crime" political rhetoric that reached its zenith in the mid-1990s, and its failure to achieve its stated goal of speeding up death penalty appeals. Instead, the uneven practice of denying federal review based on missed deadlines in some cases and granting "equitable tolling" to forgive late petitions in other cases has made the federal appeals process, in the words of federal judge Beverly B. Martin, "simply arbitrary."

Part Two of the series profiles lawyers who have missed the deadline, sometimes through remarkable incompetence or neglect, and how they are almost never held accountable. Only one among the dozens of attorneys responsible for missed deadlines was sanctioned, and he received only a simple censure.

"The absence of any systematic monitoring or punishment for mistakes on which their clients' lives might depend underscores the uneven quality of publicly funded legal aid to death-row prisoners who turn to the federal courts."

Strikingly, legal representation for death-sentenced defendants is so under-funded and poorly supervised - and the consequences imposed by the one-year deadline so severe - that the nation's top prosecutor has expressed concern about the fairness of the system. "When you're talking about the state taking someone's life, there has to be a great deal of flexibility within the system to deal with things like deadlines," outgoing United States Attorney General Eric Holder told The Marshall Project in an interview. "If you rely on process to deny what could be a substantive claim, I worry about where that will lead us."