Secret Agent Man

One of the great legal fictions is that a criminal defense lawyer is the “agent” of the defendant.  As pretty much any defendant will say, while he depends on his lawyer to do his bidding to the limited extent he both needs the lawyer and has faith in the lawyer’s judgment and skills, the defendant is nonetheless at perpetual odds with his lawyer.  Like it or not, the lawyer is, at the end of the day, nothing more than a hired gun.  Often, he’s hired by someone else, leaving the defendant’s faith on shaky ground.

Yet the law provides, for sound policy reasons, a liability to be suffered by a defendant for a lawyer’s missteps.  Should the lawyer fail to object to something at trial, the defendant suffers.  If the lawyer’s argument is unpersuasive, the defendant suffers.  Should the lawyer fail to file a paper on time, the defendant suffers.  This is true for the most trivial infraction as well as the most serious.

Recognizing that the quality of lawyering is extraneous to the issue of guilt, the law allows for some safety valves.  There’s appeal.  There are post-trial motions.  And there is the ultimate safety valve, the Great Writ, the Writ of Habeas Corpus. It was with us when this nation began, for those of originalist bent, and remained with us since.  It was the last ditch effort to come before a court and say, something went wrong.

Reflecting the sense that criminals had it too easy and were taking advantage of the Great Writ, Congress decided to mess with it by passing the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA) after the Oklahoma City bombing.  Where before a defendant could invoke the Great Writ anytime he wanted, and as many times as needed, Congress decided it had enough of criminal-coddling and imposed a strict limit on the Great Writ, that it had to be brought within one year of the conclusion of direct proceedings. 

One year wasn’t much time, but that’s the length of time Congress selected.  It was a problem for a number of sound reasons, such as evidence or information that wasn’t known, or changes in circumstances that occurred beyond the year.  It could also be a problem when the lawyer did something so unfathomably stupid as dropped the ball and missed the deadline.  In this instance, the legal fiction kicked in, with the lawyer being the defendant’s agent.  That meant that the lawyer’s failure was attributed to the defendant, whether the defendant did nothing to help himself or everything a reasonable person could expect of him.

Congress wasn’t entirely heartless.  It permitted some conditions that would let a defendant escape his lawyer’s failure, such as ” bad faith, dishonesty, divided loyalty, mental impairment or so forth.”  What it failed to include was the sort of inexplicable screwup that would most commonly occur, the simple failure to act.

This was the situation that Albert Holland placed at the doorstep of the Supreme Court in Holland v. Florida.  Jeff Gamso offers a good overview of the 7-2 decision, and Norm Pattis provides a “less dispationate” summary.  The Court held that strict time limit was subject to “equitable tolling,” provided the defendant was diligent in his efforts to file timely and that “extraordinary circumstances” existed to invoke equity, fairness.  Justice Breyer, writing for the majority, did not go so far as to say Holland’s situation was sufficiently extraordinary to invoke tolling, but offered the crack in the door to allow him to argue that it did.

The problem with such cases is that the dissenting opinion by Justice Antonin Scalia offers the better argument as to proper statutory construction.  While the majority decision is the only one that bears even a passing resemblance to fairness and sanity, it’s not quite sound from a legal perspective.  This doesn’t mean Scalia is right, for the outcome his dissent would compel is crazy, the denial of habeas review because a lawyer screwed up.  Nobody could really contend that this is a fine reason to execute a person. 

But the scenario presented to the Court is one that only half occurs in nature.  People screw up.  Holland’s lawyer, Bradley Collins, screwed up.  Despite Holland’s doing everything in his power to get Collins off the dime, Collins still screwed up.  But whether “screw ups” are extraordinary is another matter.  The result a screw up causes can be extraordinary, but a screw up itself is unbearably ordinary.  It happens all the time.

The Great Writ was important enough at the time the United States was formed to make it into the Constitution.  Not one of those after-thought amendments, mind you, but the main body.  At Article One, Section 9, which provides for limitations on Congress, it states:

The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.

Granted, even then it wasn’t without qualification.  It was subject to suspension when the going got tough, as happened during the Civil War when the Great Emancipator suspended it for inhospitable locales, though an earlier flavor of the Supremes held in Ex parte Milligan (1866) that as long as civilian courts functioned, the Great Writ would remain available.

The writ remained essentially unmolested, aside from its disgraceful suspension during World War II for fear of Japanese saboteurs, until 1996, when Congress fixed a problem that didn’t exist.  Since then, we’ve endured 9/11 and Gitmo detainees.  Our Attorney General at the time, Alberto Gonzalez, explained why the Great Writ, “one of our most cherished rights,” is not guaranteed by the Constitution.  He did not explain how that was possible.

The Supreme Court decision in Holland demonstrates the problems with cleaning up the wrong mess after Congress has had its chance to do what lawyers often do, screw up.  Scalia is right that majority’s holding can’t quite be squared with the limitation imposed by Congress. Breyer is right that it’s ridiculous to be such a prig as to deny Holland any possibility of review because Collins screwed up.  And none of them were willing to point the fickle finger of fate at a pandering Congress, ready to mess with the Great Writ and start the snowball that would produce Holland’s problem.

The one year limitation on the writ of habeas corpus is not merely a procedural tweak, but a de facto suspension in violation of Article One, Section 9, of the Constitution.  To agree with this is to invite all the evils that Congress hoped to end, the opportunity for criminal defendants to get ten, a hundred, bites of the apple to show that they are wrongly imprisoned.  What a burden this could be for our government, to let criminals run amok.

But until they find a way to make lawyers perfect, or judges and prosecutors for that matter, it’s the last chance to get things right.  As for Holland, scaling the heights of “extraordinary circumstances” still looms in front of him.  Whether a basic lawyer screw up will suffice has yet to be seen, and after that comes the merits.  All because Congress had to mess with the Great Writ.

One thought on “Secret Agent Man

  1. JW

    So congress screwed up, creating a law that lead to injustice and the supreme court … wiggle waggles? Why not just declare the law unconstitutional as it violates due process?

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