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April 3, 2018

AEDPA accelerant: examining prospects for speedier capital appeals for "opt-in" states

Remarkably, it has been almost a quarter century since Congress reformed federal habeas procedures through the Antiterrorism and Effective Death Penalty Act. But in all that time, a dormant part of AEDPA has been its provisions seeking to enable states a quicker route through federal capital habeas review if they provided adequate counsel for state collateral review. But as highlighted by this lengthy new article, headlined "‘Express lane to death’: Texas seeks approval to speed up death penalty appeals, execute more quickly," this part of AEDPA may have some new life. Here are the basics:

Texas is seeking to speed up executions with a renewed request to "opt in" to a federal law that would shorten the legal process and limit appeals options for death-sentenced prisoners.

Defense attorneys worry it would lead to the execution of innocent people and — if it's applied retroactively, as Texas is requesting — it could end ongoing appeals for a number of death row prisoners and make them eligible for execution dates. "Opt-in would speed up the death penalty treadmill exponentially," said Kathryn Kase, a longtime defense attorney and former executive director of Texas Defender Services.

A spokeswoman for the state's attorney general framed the request to the Justice Department as a necessary way to avoid "stressful delays" and cut down on the "excessive costs" of lengthy federal court proceedings. "Opting-in would serve several purposes for Texans, including sparing crime victims years of unnecessary and stressful delays, ensuring that our state court judgments are respected by federal judges as cases progress, and reducing the excessive costs of lengthy federal court proceedings," said the spokeswoman, Kayleigh Lovvorn....

The request — which comes after years of declining executions — has sparked a federal lawsuit and hundreds of pages of comments from a broad coalition of concerned parties including the ACLU, the American Bar Association, Mexico's government, a former federal judge and dozens of defense attorneys.

There's doubt among the defense bar whether Texas actually meets the qualification criteria. Approval is up to Attorney General Jeff Sessions, the nation's top law enforcement officer who recently advocated for capital punishment for drug dealers in some cases. If Sessions gives the green light to the Lone Star State's application, it will be the first opt-in approval in the more than two decades since the law's inception....

The state's hopes for fast-tracking a path to execution date back to at least 1996, when Congress passed the Antiterrorism and Effective Death Penalty Act. Written in the tough-on-crime 1990s and in the aftermath of the 1995 Oklahoma City bombing that killed 168 people, the law set time limits to expedite federal appeals in death penalty cases and gave greater deference to state courts....

But in addition to what is already in place, the law opens the door to creating even tighter deadlines with a special opt-in provision under a section called Chapter 154. In order to qualify for Chapter 154 certification, states have to prove they offered good enough lawyers earlier in the process, during the so-called "state habeas" appeal. If the condemned were all able to get competent, sufficiently paid attorneys with the funds to afford things like investigators and specialists during the state habeas appeal, then the law would permit speeding up the later federal habeas appeal....

The letters submitted to the government early this year were highly critical of Texas' current defense system, calling it "inadequate" and "infected" by "well-publicized failures," pointing out that the state doesn't even guarantee counsel for all types of post-conviction proceedings.

So far no state has qualified. But in November, Sessions fired off letters to Texas and Arizona — two states that previously put in certification requests — and asked if they still wanted to apply. They did.

The states' affirmative responses prompted a required comment period, during which Texas Defender Services and other capital defense organizations produced a 247-page comment — bolstered by more than 100 appendixes — criticizing Texas' application, calling it "little more than a whitewash of the state's persistent historic failures" that includes "no evidence at all." The application itself doesn't explain why the state wants to opt in.

Kent Scheidegger, death penalty supporter and legal director of the Criminal Justice Legal Foundation touted opt-in as a way to speed up the process. "We talk about due process of law — I call this overdue process of law," he said. "The victims' families just get frustrated beyond belief with all this reexamination when in most cases the guy is guilty beyond any doubt. The fact that a federal court overturns the judgment doesn't mean that that's a just result."

Houston-based capital defense attorney Patrick McCann stressed that federal courts are where many condemned men —including those wrongfully convicted like Anthony Graves, and those deemed too intellectually disabled to execute, like Bobby Moore — have gotten relief. "This is a political quest," he said. "It's an appeal to Gov. Abbott's base to make it very proudly explained that we have an express lane to death."...

If Sessions approves it, opting in would include limitations on how long federal courts have to resolve cases, restrictions on judges' abilities to grant stays of execution, and limits on the claims that prisoners can raise in federal habeas proceedings.

But what's sparking the most concern among defense lawyers is a change that would halve the time attorneys have to file the first part of their federal appeal. If Texas opts in, attorneys would have six months instead of a year to interview witnesses, hire investigators and familiarize themselves with sometimes a decade or more of case files to sift out any possible past lawyering mistakes, suspicion of withheld evidence or proof of actual innocence stuffed away in boxes and boxes of materials.

"Doing all that in one year is already extraordinarily difficult, and any further limitations would only exacerbate the existing problem," said Emily Olson-Gault, director of the Death Penalty Representation Project at the American Bar Association. "We know that errors are made in capital cases," she added. "The more that the allotted time to prepare is limited, the greater the risk that serious constitutional errors will stand uncorrected."

And if claims aren't raised in the first filing, they can't always be raised later. "They're valid concerns but you gotta consider the other side of the coin," said Scheidegger "The state and the victims have an interest in seeing these sentences carried out and at present it is taking far too long."

Death penalty lawyer Kenneth McGuire — who is among those suing in federal court in Washington, D.C., to challenge the certification process — called the shorter time frame "completely impractical" and said it would "only guarantee a miscarriage of justice." Attorney James Rytting concurred, adding that sometimes it takes "several months" for the courts to appoint federal habeas lawyers.

April 3, 2018 at 11:09 AM | Permalink

Comments

Looks like the capital defense bar won't be able to use the "save 'til the last minute" strategy. Boo hoo.

Posted by: federalist | Apr 3, 2018 12:35:33 PM

"Attorney James Rytting concurred, adding that sometimes it takes "several months" for the courts to appoint federal habeas lawyers."

Try Monster.com or Linkedn.com to find a lawyer in a day. All federal judges are lazy, slow shuffling, no work, thieves of tax payer money. I do not know if they have to get training in customer service at the Post Office. They farm off all work to old, demented magistrates and retired judges. These are even slower than they are. They all stink, especially after getting radicalized at an Ivy League law school.

These should all be replaced by robots, running algorithms written, owned, and updated by the legislature.

Posted by: David Behar | Apr 4, 2018 5:43:10 AM

Things must be different in Texas. I am used to the public defender's here helping their capital clients file a request for counsel while the state collateral review is still on-going with the result that counsel has time to work their way through the preserved claims (i.e. those raised on direct appeal and collateral appeal) and begin investigating defaulted claims while our state supreme court is still hearing arguments and writing the opinion on the collateral appeal.

The conditions for certification of a state for expedited consideration are supposed to assure a level of competence on the part of initial collateral review counsel. While I am not sure that Texas meets those conditions, that level of competence should bar most defaulted claims leaving only the preserved claims. On the preserved claims, six months is not a particularly short time as you already have one round of briefing in the state courts that you can use as the core of your federal petition (a lot of pro se inmates just copy and attach the appellate briefs). By way of comparison, under the Federal Rules of Appellate Procedure, the appellant only has forty days to prepare a brief from the time that the record is completed. Additionally, if a state does opt-in, the effective time limit is 210 days, not 180 days as counsel can ask for an additional 30 day extension (as compared to no extensions on a 365-day limit if a state does not opt-in).

Posted by: tmm | Apr 4, 2018 11:45:41 AM

The big piece of this is not the delaying--but the fact that executions cannot be stayed (by federal courts) after the round of habeas.

Posted by: federalist | Apr 4, 2018 7:59:48 PM

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