March 27, 2007

Supreme Court Slams Death Row Appeals

On February 20th, 2007 the U.S. Supreme Court issued its long awaited decision in Lawrence v. Florida (case number 05-8820), which raised the question of whether the 1 year statute of limitations for seeking federal habeas relief from a state court judgment is tolled while an “application for state post conviction or other collateral review” is pending. Ina typically marginal 5 to 4 vote, the court decided that the statutorily defined one year limit to initiate a federal habeas following exhaustion of state appellate review is not tolled pending the discretionary review by way of petition for writ of certiorari from a state court denial of a collateral appeal.

Why is this even important? It seems to be just a technical ruling that doesn’t mean much to anyone. But in truth it is a substantial ruling that will immediately effect at least 20 Florida death row prisoners who, because their state appointed post conviction counsel failed to “timely” file their original (first) federal habeas within the statutorily required one year, they are now procedurally barred from pursuing any federal review whatsoever.

The right to pursue Writ of Habeas Corpus is one of the most sacred rights evolving from common law upon which our Constitution itself was conceived. In fact, the U.S. Constitution prohibits suspension of the Writ except in times of war or civil unrest.

However, these conservative justices are splitting hairs. Constitutionally, the power to establish the rules governing habeas corpus belong to Congress, not to the court. With the backlash of the 1996 Oklahoma City bombing and the intent to expedite more executions Congress passed substantial “reforms” on the federal habeas corpus statutes, which severely limits the federal courts jurisdiction to review state court criminal convictions. Among these draconian rules was the rule that allows only one year from the time the state conviction is affirmed on “direct appeal” to file your federal habeas corpus.

This rule is “jurisdictional,” so any failure to file on time subjects the condemned prisoner to a procedural default that prohibits the federal court from hearing the case – they are legally prohibited from reviewing the pled claims of constitutional error, even substantiated claims of actual innocence! See, Blessings of Liberty in the Land of the Free.

In the Lawrence v. Florida case, condemned prisoner Gary Lawrence and many others argued that the failure to timely file their original federal habeas was the fault of the state appointed post conviction counsel and that they did not voluntarily waive their rights. In a (again) technical argument, they claimed that because the law was ambiguous and reasonable counsel may have mistakenly assumed that the time to file continued to be tolled while certiorari review to the U.S. Supreme Court upon denial of state court review of post conviction relief was pursued.

Alternatively, if the time could not be “equitably tolled” due to counsel’s inadvertent error, then death row inmates should be allowed an exemption from procedural bar under the argument that this state appointed and supervised post conviction counsel failed to provide reasonably competent representation.

In an opinion written by none other than ultra-conservative, pro death penalty advocate Justice Clarence Thomas, the Supreme Court slammed the door upon all these condemned prisoners by clearly finding that (and I quote) “Lawrence argues that his counsel’s mistakes in miscalculating the limitations period entitles him to equitable tolling. If credited, this argument would essentially equitably toll limitation periods for every person whose attorney missed a deadline. Attorney miscalculations are simply not sufficient to warrant equitable tolling, particularly in the post conviction context where prisoners have no constitutional right to counsel. e.g. Coleman v. Thompson, 501 U.S. 722, 756-57 (1991)”

“Lawrence argues that his case presents special circumstances because the state courts appointed and supervised his counsel. But a states effort to assist prisoners in post conviction proceedings does not make the state accountable for a prisoners delay. Lawrence has not alleged that the state prevented him from hiring his own attorney or from representing himself. It would be perverse indeed if providing prisoners with post conviction counsel deprived states of the benefit of the AEDPA (Anti Terrorist and Effective Death Penalty Act of 1996) statutes of limitations” (end quote)

Not surprisingly, fellow death penalty advocates and ultra conservative zealots Chief Justice Roberts and Justices Scalia, Alito, and Kennedy sided with Justice Thomas in this draconian decision while four justices (Ginsburg, Stevens, Souter, and Breyer) condemned the marginal majority for their pathetically disingenuous manipulation of constitutional law to simply facilitate their own agenda of expediting executions even at the cost of innocent lives.

But what is even far more troubling is what this opinion does not say, but was in fact raised in a comprehensive “Americus” brief filed by the ACLU – that Lawrence is actually only one of many Florida death row prisoners now being subjected to procedural default and completely deprived of any federal appellate review of their convictions and sentences of death for non reason but the lawyers assigned to represent them failed to timely file their appeals. In fact, this decision will now make at least 20 Florida death row prisoners eligible for execution without any federal reviewing their claims of constitutional error.

For those unfamiliar with the legal system this may not seem to be that big of an issue. But historically many innocent men and women were saved from state execution only because of federal court intervention. By manipulating procedural rules to effectively deny a large number of condemned prisoners federal court review of their convictions – some of whom are attempting to argue actual innocence – the Supreme court has now substantially increased the probability that innocent men and women will be executed.

Another extremely troubling aspect of this decision is that regarding the counsel “appointed and supervised by the state” what Justice Thomas didn’t talk about is the manner in which the post conviction counsel is appointed in Florida.

In all of these cases the post conviction counsel was appointed and supervised by the state controlled agency called “Commission on Capital cases.” This agency is an extension of the Florida State Legislature, created with the intent to find ways to expedite more executions. To accomplish that specific agenda this agency was given statutory power to appoint counsel for death row prisoners.

But anyone bothering to look at who controls this agency would be extremely troubled by the obvious political agenda – take a look at the board of directors that control that agency. For example, when now recently elected Governor “Chaingang Charlie” Crist was then the elected Attorney General for the State of Florida and personally in charge of pushing for executions of condemned prisoners, his own brother Florida Senator Victor Crist was appointed to the board of directors overseeing the appointment of lawyers for death row prisoners. However, nobody challenged this obvious conflict of interest.

Florida knows that they must provide lawyers to condemned prisoners or they cannot execute them. But Florida also knows that, as Justice Thomas has now again said, that all that is required is a lawyer – it does not require a competent, or qualified lawyer. And when the lawyer does fail to provide competent legal representation the condemned prisoner does not have any means to correct that error.

Under this system if a morally corrupt politician wanted to deliberately circumvent the condemned prisoners constitutional right to meaningful appellate review, this could easily be accomplished by simply forming a state controlled office that could deliberately appoint incompetent lawyers to represent death row prisoners, thus reducing the entire post conviction appellate review process to a pretense and expedite the execution of death row prisoners, including those with legitimate claims of innocence.

Wake up America -- this is what is happening in Florida!! See, Legal Representation In Capital Cases – Privilege or Pretense? But nobody is willing to stand up for those condemned. Even though the American Bar Association released a comprehensive report that graphically shows how Florida’s death penalty system is fundamentally flawed last summer, no one has demanded a moratorium on executions until Florida addresses and fixes this corrupt system.

Already Florida leads the country in the number of wrongful convictions in capital cases with a small number of state attorneys accounting for record numbers of innocent men and women being condemned to death. See, “Southern Injustice: Exposing the New Face of Bigotry and Injustice in The South” at ( and rather than address why Florida has such a high number of wrongful convictions Florida instead is devising ways to deny review of post conviction appeals – by circumventing review of the innocence claims, seeing that they are not heard, and putting the condemned to death without any opportunity to even establish their innocence.

Why aren’t more people concerned about this corruption of justice? As I’ve often quotes in earlier articles –“Evil can only triumph when good men (and women) chose to do nothing.” What have you done to address this matter? I would ask you to now read more at ( -- only by becoming aware of this evil that exists (See, The Greater Evil".) can we ever hope to purge our judicial system of those who will kill innocent men and women to advance their own political careers. Becoming aware of this corruption is the first step to confronting this evil and as a matter of moral conscience we all owe it to the society we exist in to stand up and confront this evil now.