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May 20, 2008

An Atkins claim and a lawyer's mistake before SCOTUS

As detailed in this new post at SCOTUSblog, a last-minute appeal to the Supreme Court in a Mississippi capital case presents an intriguing twist on some always nettlesome death penalty issues.  Here is a snippet from Lyle Denniston's great post:

[T]he core issue [ Earl Wesley Berry of Mississippi] raises in both the new state case and the original habeas plea [concerns] the question of a death-row inmate’s right to a hearing — which Berry’s lawyers say he has never had in state court — on a claim of mental retardation.  Because the Supreme Court has imposed a categorical bar on executing any mentally retarded inmate, the appeals argue, an inmate with credible evidence of that mental deficiency must have a chance to present it before being put to death.

Both the state Supreme Court and the Fifth Ciricuit have turned aside Berry’s most recent challenges because of “procedural defaults,” without examining his new evidence about retardation, and without exploring what caused those legal flaws.  In both situations, Berry’s attorneys have told the Supreme Court, the problem was traceable to defense lawyers who used a statement of a political scientist, rather than a mental health professional, to try to make a case for retardation.

May 20, 2008 at 08:14 PM | Permalink

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The Supreme Court has imposed a categorical bar on executing anyone in violation of the Constitution. But there rules about finality, which need to be respected. Berry had his chance. Execute him.

Posted by: federalist | May 20, 2008 8:20:05 PM

The "rules about finality" would not apply to a categorical bar against executing retards (as a prosecutor referred to them). If retardation was a defense to the substantive crime, you might have a point. However, Atkins is a bar against the state "killin' a 'tard."

Posted by: S.cotus | May 20, 2008 10:12:04 PM

The question is why did Berry's lawyers wait so late in the litigation day to file this claim?

Posted by: justice seeker | May 20, 2008 10:28:57 PM

Justice Seeker:

"The question is why did Berry's lawyers wait so late in the litigation day to file this claim?"

Because gaming the system is what it's all about.

Posted by: Bill Otis | May 21, 2008 12:13:59 AM

No Bill, it's because incompetence is rampant.

Just look at the Oval Office. Traded Sammy Sosa, ran several companies into the ground, ran an election campaign in which he received fewer votes than his opponent, failed to capture the man who attacked us on 9/11, invaded a country unconnected to terrorism and that posed us no threat, failed to plan for the aftermath of the invasion (because we assumed we would be "greeted as liberators"), and yet he's been the President of this country for 8 long, long years.

Posted by: Sentencing Observer | May 21, 2008 9:58:49 AM

Sentencing Observer:

So there's no gaming the system? Do you really think that?

P.S. I'd be happy to engage you on the politics but I suspect that would expand the scope of this blog beyond what Doug intends.

Posted by: Bill Otis | May 21, 2008 10:46:23 AM

Procedural default in federal habeas isn't so much interested in the rules of finality but in allowing state courts to enforce their own rules, although they may in turn relate to the rules of finality - e.g., res judicata. Here, the state rule concerns the proper presentation of a mental disability hearing affidavit. The article notes that his new lawyers have an affidavit in which the former attorney admits his deficiency, but did the new lawyers actually raise an ineffective assistance claim in the subsequent proceedings? That could have been a way to preserve the issue. Furthermore, in a successive habeas petition, the petitioner can't raise an issue that was presented in a prior petition.

I don't think Scotusblog should quote "procedural defaults" and "successive" as if this is some new-fangled BS vocabulary the government lawyer made up (as opposed to something found in AEDPA and case law before it).

Posted by: Narcolepsy | May 21, 2008 10:50:39 AM

Tough on crime can no longer claim the moral high ground when it comes to "gaming" the system. See The Innocence Project.

Posted by: George | May 21, 2008 11:07:04 AM

As a lawyer for the government who deals with last-minute petitions filed by death row inmates, I agree with Bill Otis. Gamesmanship, manipulation, or in some cases perpetrating a fraud on the court, whatever it takes to delay an execution. Regarding Sentencing Observer's post, don't know what W has to do with a capital murderer in Mississippi.

Posted by: justice seeker | May 21, 2008 1:47:21 PM

Speaking of gaming the system, there is always the Attorney General's action in the Brian Keith Moore case in Kentucky. Talk about doing ANYTHING to prevent a DNA exoneration. A couple of hours before the DNA testing was scheduled to come back the AAG orders the crime lab to stop working on the case, despite a judge's order.

Posted by: nonya | May 21, 2008 3:11:49 PM

Supreme Court just denied cert. This execution was long overdue, and it should not have been stayed pending the decision in Baze in the first place.

Posted by: federalist | May 21, 2008 6:15:30 PM

"In both situations, Berry’s attorneys have told the Supreme Court, the problem was traceable to defense lawyers who used a statement of a political scientist, rather than a mental health professional, to try to make a case for retardation."

The fact that Berry's own expert testified at his second penalty trial that he is not retarded has more to do with it, IHMO.

More here at C&C.

Posted by: Kent Scheidegger | May 21, 2008 7:14:45 PM

Please, Kent, none of these pesky facts.

Posted by: Bill Otis | May 21, 2008 10:35:45 PM

It's high time the courts put a stop to these bogus last-minute claims. It is patently unfair to the state (and the state's attorneys) to have to deal with this crap on a rush basis when these claims could have been filed beforehand. We can never forget that the people who are being executed are killers. Why in the world does the system, which can be extremely tough on ordinary law-abiding citizens wring itself into contortions for killers? There is no group of litigants which deserves less room for these types of litigation tactics than a death row inmate, who has already availed himself of a vast amount of judicial resources, usually at no cost to him.

I really wish that wardens would simply take the phone off the hook and only accept personal service of court orders. I know I would. And the other thing that has got to go is this ridiculous idea that you have to wait for a court to rule. No stay would equal an execution.

Posted by: federalist | May 21, 2008 10:53:05 PM

We lawyers will litigate cases. Many things will happen the last minute before a "'Tard is needled." (The words of a prosecutor.) As an admitted lay person there is absolutely nothing you can do about this. Oh, you could write a letter to you Congressperson (that would be cute) and give everyone a good laugh.

The state is not entitled to “fairness.” Nor are the attorneys for the states. At some level, the courts must apply rules to them equally, those rules need not be fair in any objective manner. Would you believe that it takes a very high standard of proof for the state to even put someone in jail? That isn’t “fair.” Wouldn’t you agree that “fairness” requires only that the state demonstrate that it is “more likely than not” that someone did something before the state can execute them. It is hardly “fair” that the state needs to provide people with “due process” when the state is entitled to none itself.

The system is not “tough” on “ordinary, law abiding citizens.” Albeit, I don’t have much contact with “ordinary” people (as they are losers). But, whatever the case, the system is fine.

Posted by: S.cotus | May 22, 2008 7:26:59 AM

S.cotus:

You are correct in arguing that the state in a criminal case bears a higher burden of proof than an ordinary litigatant in a civil case. You are also correct in noting that the Due Process Clause confers benefits only upon individuals and not the state.

To acknowledge the historical fact that the criminal justice system is (designedly) asymmetrical in allocating some of its burdens is hardly to establish, however, your broad assertion that neither the state nor its counsel are entitled to fairness. Nor, for that matter, is fairness the principal fulcrum of the discussion of last-minute death row appeals.

The problem with such appeals in not that they are "unfair," whatever that might mean in this context. The problem is that they are a tool of gamesmanship and manipulation -- not something the courts should (or do) abide.

The notion that it took 20 years to discover that Berry was retarded is not merely wrong but preposterous. Indeed, as Kent has pointed out, the subject of Berry's supposed retardation came up long ago in the litigation in this case. That is enough per se to prove that tucking it away for a blitzkrieg Supreme Court petition to be filed THE NIGHT OF THE EXECUTION is just complete hokum.

The Court didn't buy it, and properly so.

Posted by: Bill Otis | May 22, 2008 9:11:36 AM

S.cotus, as you know, there are rules about how litigation is conducted--rules which seem to be suspended for death row inmates. Courts ought to crack down on this. And if they don't, Wardens should simply impede the serving of court orders etc. That the US Supreme Court is reviewing something, but has not granted a stay, is no reason to stop a previously scheduled execution. Nor is it a reason to help that Court immediately effectuate its orders. There's no law that says that a Warden has to take a phone call from the clerk of the Supreme Court. The Supreme Court was weak in imposing the Baze moratorium, as it was a violation of its own precedent to grant the stays to those who filed so late in the game. (The weakness, I suspect, came from the Court simply did not want the NY Times editorial page getting worked up about the Supreme Court letting some killer who could be executed under a method later determined to be unconstitutional being executed, as if normal rules about timeliness of filing were suspended. So instead of taking a little heat, the Court let victims' families suffer--nice.)

Posted by: federalist | May 22, 2008 11:48:22 AM

“The problem is that they are a tool of gamesmanship and manipulation -- not something the courts should (or do) abide.”

Welcome to the real world, sir. Gamesmanship is something that every litigant desires. In fact, many clients would fire their lawyers for not trying to “work” the system for them. Oh, judges do this to (though their motives may not be obvious to the outside observer and sometimes have more to do with intra-judicial politics than the politics as the lay people think of it.)

Federalist, If you can point to a single rule that is “suspended” for tards on death row (again, the words of a prosecutor), go ahead. Perhaps you don’t understand what the rules really are, or perhaps you don’t understand that they don’t apply in many circumstances. Whatever the case, the state is quite capable of arguing that a “tard” isn’t entitled to relief from being “needled.” However, as I have said, the prohibition against executing “tards” is no an affirmative defense.

I think that it is cute that you are telling courts to “crack down” on “violations of the rules.” Wardens, of course, have, from time to time, tried to interfere with the actions of courts. However, this is generally contemptuous, and most state AGs will simply not stand for it. Whatever the case, as a warden’s lawyer, an AG is responsible for informing him of all orders from a court. Anyway, you seem to be implying that state officials (like warders) can and should violate the law as it is announced in court orders and are demanding a lawless society all so you can “needle” a few “tards.”

“There's no law that says that a Warden has to take a phone call from the clerk of the Supreme Court.”

The “death clerk” on the Supremes do not call the wardens directly, you silly . The calls go to the state’s lawyers. Moreover, as a practical matter, everyone in the “death bar” takes calls from this lawyer, even when she is calling to say that the Supremes won’t intervene in the killing of another tard.

“The Supreme Court was weak in imposing the Baze moratorium, as it was a violation of its own precedent to grant the stays to those who filed so late in the game.”

It is too bad that you were unable to convince them not to do this. This speaks to your weakness as a lawyer rather than to their weakness as a court. However, Baze is a conceptually different issue than Atkins defaults.

The Supremes really don’t care what the NYT editorial page says about them, but if it would help a member of the lay masses understand the law in a simplified manner, I urge you the believe that.

Posted by: S.cotus | May 22, 2008 1:48:06 PM

Do you really think that the law requires attorneys to keep their cell phones on? Yeah right.

Posted by: federalist | May 22, 2008 6:34:53 PM

S.cotus:

I said: "The problem with [last minute death row] appeals in not that they are 'unfair,' whatever that might mean in this context. The problem is that they are a tool of gamesmanship and manipulation -- not something the courts should (or do) abide.

"The notion that it took 20 years to discover that [death row inmate] Berry was retarded is not merely wrong but preposterous. Indeed...the subject of Berry's supposed retardation came up long ago in the litigation in the case. That is enough per se to prove that tucking it away for a blitzkrieg Supreme Court petition to be filed THE NIGHT OF THE EXECUTION is just complete hokum."

You respond, with respect to lawyers engaging in gamesmanship, thusly: "Welcome to the real world, sir. Gamesmanship is something that every litigant desires. In fact, many clients would fire their lawyers for not trying to 'work' the system for them."

1. Thank you for the welcome to "the real world" of litigation, but I can't say I need it at this point. I have argued more than 100 cases in the federal courts of appeals, and drafted a Supreme Court brief here and there, so I think my welcome occurred some time ago.

2. Gamesmanship is NOT something every litigant desires. It is desired by litigants with losing cases, who know there's trouble ahead if they just follow a straight path from A to B. Conversely, gamesmanship is eschewed by litigants with winning cases, first because it's unnecessary, second because it delays the hour of victory, and third because the judges know exactly what you're doing, and don't much appreciate having their courtrooms used as the gladiatorial circus.

3. In any event, what litigants want is a different question from what sound judicial policy should countenance.

4. Not to forget what started this off: I appreciate the acknowledgement that what was going on with this last minute maneuver in the Berry case was, in fact, gamesmanship. And I would note that you don't contest the view that gamesmanship, while it might be the last refuge of a litigant who has nothing left for him on the merits, is not what one would call the law's finest hour.

As I have said before on this blog, there is a reason the public has such a low opinion of the legal profession, and its penchant for gamesmanship and slick practice is right up there.

Posted by: Bill Otis | May 22, 2008 6:50:13 PM

Federalist, Believe it or not, I some judges instruct lawyers to keep their cell phones “on.” In “emergency” litigation, all parties are waiting to see what will happen. Indeed, in recent memory, nobody has been killed simply because someone didn’t get an order from the Supreme Court. This isn’t the movies.

Besides, since most stays of execution are denied by the Supreme Court, most AGs probably would rather have the legitimacy of a denied stay then risk being held in contempt. Indeed, for both parties, days of execution are sort of like a vigil (akin to a birth) where all parties are waiting to see what will happen. To some, it is fun.

Mr. Otis, Somehow, clients with “winning” cases don’t call litigation on their behalf “gamesmanship.” I guess only “losers” engage in gamesmanship. Everyone else calls it good representation.

“Judicial Policy” is really just a matter of some judges taking a “position” on something. Of course, all parties then try and use that position (or overturn it) to their advantage.

I don’t know what the public’s perception of the legal profession is. (I rarely talk to non-lawyers.) However, there is no shortage of applicants to law schools, so we must be doing something right. However, it never helps to tell people that all “other” lawyers are doing things wrong. Somehow lay people like to hear that crap.

Posted by: S.cotus | May 22, 2008 8:49:11 PM

Justice Seeker,

Since you have been so kind as to 1) state that you lawyer for the government; 2) use your real name (in your email); and 3) accuse other lawyers of perpetrating “frauds” on the court on behalf of the condemned people that are trying to let the state kill, can you please honestly answer these three questions.

a. Which lawyers have perpetrated a “fraud” on the court in litigation that you were personally involved in. Please provide specific docket numbers so that we can verify this. If you don’t do this, I will assume that are either lying or exaggerating because you just don’t like the fact that things didn’t go that way. If this really happened you would have brought it to the court's attention, and there would be a record if it, together with the court's action. (If the court disagreed with you about the "fraud" then I can't really take your accusations seriously.)

b. Can you tell me if you have ever been involved in an effort to kill a convicted murderer and advised your clients to turn off their phones so that they would not receive word of any court orders. (This would probably constitute contempt, but Federalist thinks this goes on all the time.)

c. Can you assure all of us that no opposing counsel ever accused you of “gaming” the system? If someone has accused you of “gaming” the system, can you propose a way to resolve the question of who is “really” gaming the system.

Posted by: S.cotus | May 22, 2008 11:50:38 PM

I don't think turning off cell phones goes on. I think it should. If I were the AG of a state, I would execute if no stay in place, and I would insist on court orders actually signed etc. I would close down at close of business.

Posted by: federalist | May 23, 2008 12:03:38 PM

S.cotus:

"Somehow clients with 'winning' cases don’t call litigation on their behalf “gamesmanship.'”

Nor do they have reason to, since litigation per se is not gamesmanship, either for the party with the meritorious case or his opponent. I never said otherwise.

"I guess only 'losers' engage in gamesmanship."

It's more prevalent on the losing side, you bet, for the three reasons I set forth in my earlier post (and which you don't dispute).

"Everyone else calls it good representation."

You're assuming the conclusion here, by tacitly equating "gamesmanship" with "good representation." But assuming the conclusion doesn't really work.

“'Judicial Policy' is really just a matter of some judges taking a 'position' on something. Of course, all parties then try and use that position (or overturn it) to their advantage."

Judicial policy, as I am using that phrase, means an overall attitude toward adjudication that exists apart form the ins-and-outs of any particular case. Such an attitude on the part of the judge might, for example, place a premium on candid and forthcoming statements of fact in memos submitted by counsel (as opposed, say, to little snippets of the record that omit unfavorable facts). It might also place a premium on citing and dealing with adverse authority, rather than just whistling past it and hoping the other side and the court won't find out.

Judges really are not fooled by this kind of stuff (which brings up another reason to avoid gamesmanship, namely, that it's often counter-productive). As you might have discovered in your own career, you can tell if the other side's brief is a gamesmanship product after about one minute of reading it.

"I don’t know what the public’s perception of the legal profession is."

It's terrible. We're right up there (or down there) with used car salesmen. There has been polling on this, so you don't need to take my word for it.

"However, there is no shortage of applicants to law schools, so we must be doing something right."

That's for sure. We make a lot of money, certainly compared to the average income. But that's not the "something right" I'm talking about.

"However, it never helps to tell people that all 'other' lawyers are doing things wrong. Somehow lay people like to hear that crap."

I don't have to tell them, and I very seldom do. THEY tell ME. And I don't believe they like thinking that the legal profession is slick. I believe they'd prefer that it be more trustworthy and forthcoming.


Posted by: Bill Otis | May 23, 2008 12:16:07 PM

Mr. Otis, Good litigators understand the whole of the system. They understand that everyone is part of a big game. Everyone (even the judges) has interests, desires, politics, philosophies, etc. This might encompass what you mean by “judicial policy.” Once you know what these things are, a party will understand how to “game” the “system.” Strangely, when people think that they can’t be “gamed” they usually lose perspective on the whole thing and usually end up being manipulated even more than others.

Now, it is true that some tactics are easier to spot than others. But, that just means that they are not effective and, as you say, counterproductive. But good lawyers are miles ahead of this.

As a general rule, no “winning” party has ever claimed that they “won” because of “activism” or their own “gamesmenship.” The losing parties seem to claim that they lost because of the above behaviors. Clients expect positive results. Generally, most clients do not want excuses.

I have never met a single person that informed me that they had a completely negative view of lawyers. While they sometimes complain about certain lawyers, without exception they wish their children to become lawyers. The lower classes don’t really know what they do, and they usually just recite slogans (often written on behalf of lawyers), anyway, so I can’t take anything they say too seriously. So, maybe you make a habit of talking to the lower classes.

Federalist, You seem to be the only person on here that is advocating the deliberate ignoring of a court’s orders. Even the most gung-ho prosecutor seeks the approval of a court. I guess, at some level, a state could order its officials to avoid hearing any court order and simply do whatever they want.

Posted by: S.cotus | May 23, 2008 1:30:47 PM

Not the deliberate ignoring of the court--simply not making the court able to get in touch instantaneously. There is a difference.

Posted by: federalist | May 23, 2008 2:00:05 PM

S.cotus:

Just a couple of notes.

-- I spent most of my career as an appellate lawyer in the USAO for the EDVA. I never looked upon either the law generally or what I was doing as a game. I saw many, many cases litigated. Some of my colleagues were ordinary talents; others were exceptional. But by far the most important thing in determining the outcome of a case was the evidence. The idea that the lawyer's craftiness tells the tale is just flat-out wrong.

In any event, would you really WANT a federal prosecutor to look on the job as a "game" rather than an effort to put the truth before the court?

-- I couldn't say that I know anyone who has a 100% negative view of lawyers, nor would such a view be justified. But that is not to say that lawyers could not do plenty to clean up the profession, so that both its actual and perceived standing would be better than it is now.

-- I scarcely know anyone from the "lower classes" anymore, much less talk with them, if by "lower class" you mean people with incomes of less than, say, $35,000 a year.

I do some public speaking and debating now that I have left the government, most recently a debate with Prof. Steven Morse at Penn Law School on the subject of drug legalization. I would be perfectly open to debating legal ethics as well should the opportunity arise.

Posted by: Bill Otis | May 23, 2008 2:45:28 PM

“Game” as many different connotations. Perhaps if you don’t want to call it a “game” you could call it a “competition” or a “battle.” But, the point is that we all play various roles and we all attempt to satisfy our interests.

Federalist, if an emergency motion or petition is pending that relates to an event that may happen in the extreme near future, lawyers generally have an obligation to keep in touch. Instantly. Besides, if lawyers followed you corrupt approach to ethics, the SCOTUS would be far more likely to grant stays as a matter of course, far in advance knowing that your ilk would ignore last-minute phone calls.

For some reason when I think of ways to “clean up” the profession, my ideas seem to never have much to do with what the lay people think of. My suggestions: 1) eliminate legal temp agencies; and 2) disbar lawyers that offer oversimplified versions of the lay to lay audiences. Most things that the public perceives as legal-ethical issues are more questions of substantive law or attempt to harm someone else’s legal interests.

Posted by: S.cotus | May 23, 2008 8:51:01 PM

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