There was no announcement in the New York Times when SJ went live, but I’m no Bill Keller, former executive editor of The New York Times. The Marshall Project, on the other hand, had yet to do anything when it proclaimed itself the savior of criminal justice in America. That was worthy of a New York Times announcement.
It went live with a two-part, more than 9,000 word, examination of how the one-year deadline under 28 U.S.C. §2254-5, Clinton’s compromise of the Great Writ in the Antiterrorism and Effective Death Penalty Act of 1996, created a morass of rules that served to wreak havoc with post-conviction challenges. This is nothing new to those of us who are either familiar with criminal law or care about the issue. The law ends with the provision:
The ineffectiveness or incompetence of counsel during Federal or State collateral post-conviction proceedings shall not be a ground for relief in a proceeding arising under section 2254.
Will anyone read those 9,000 plus words who isn’t already well aware of the problem? Who knows. But it doesn’t hurt to put this on the front burner, even if its old news. And if it takes Neil Barsky’s promotional skills to do so, so what?
Here’s what. While the post provides a great many relevant details, watered down so that they are more understandable to those unfamiliar with law, it then goes on to describe a piece of the failures in many cases — there are 80 death penalty cases, according to the post, which were untimely under the law — all of which are attributable to failure to defense counsel.
The post tells story after story of incompetence, excuses, inexperience and inexplicable failure, replete with all the emotion a reporter can muster, for the death row inmates who are denied a last-ditch effort to prove they shouldn’t die. Some involve cases where the basis remained concealed by prosecutors, such as Brady violations, until after the time ran out. Most involve sheer incompetence by the lawyers for these inmates.
Despite the extreme length, and myriad details, the primary takeaway is that innocent prisoners are or will be put to death because their defense lawyers failed. Nowhere does the post go any deeper, offer any insight, into the systemic failure that created this scenario. The story of Gregory Scott Johnson’s lawyer, Michelle Kraus, is illustrative.
Michelle Kraus is an experienced defense attorney in Fort Wayne, Ind., who concentrates almost entirely on trial work. At the request of a lawyer friend, she signed on to assist with a state-level appeal for Gregory Scott Johnson, who had been convicted in 1986 of beating an 82-year-old woman to death. But after her friend left the case, Kraus wound up taking it to federal court, where she confronted a steep learning curve.
“It was overwhelming, getting grounded in it,” Kraus says. She got the standard text on habeas practice and procedure – at that point, the two volumes ran to some 2,000 pages – and read it front to back. She also traveled to Atlanta to attend a one-week seminar on capital litigation, taught by some of the country’s leading experts.
Kraus devoted long hours to Johnson’s petition, which included a claim that prosecutors failed to disclose evidence that might have reduced Johnson’s culpability and perhaps spared him the death penalty. She dropped the petition in the mail three days before deadline, but it arrived one day late.
“Counsel bungled the job,” the federal appeals court wrote in 2004. Instead of using first-class mail, Kraus should have opted for FedEx or a courthouse messenger, the court said. The person held accountable would be Johnson. “[L]awyers are agents,” the court wrote. “Their acts (good and bad alike) are attributed to the clients they represent.”
Telling Johnson about her mistake – and how he would be punished for it – “was probably the hardest thing I’ve ever done,” Kraus says. She stayed on the case – “he forgave me,” she says – and was with Johnson for his last meal before he was executed in 2005.
Some will see a laundry list of wrongs and failures here. Most will see a failure of Michelle Kraus to send the petition by overnight mail. Some will remember Kraus’ efforts to obtain clemency from the parole board and governor, or Johnson’s efforts to donate his kidney to his sister, all of which failed.
Each of these stories reflects a depth of failure that includes, but goes far beyond, the errors of defense counsel. In most instances, the defendant suffers for failures by a lawyer assigned to his case, sometimes after the time to file elapsed. Some were pro bono, but never before practiced criminal law. Some were just grossly underpaid and inexperienced, yet took assignments because no one else would.
There is no doubt that the defense lawyers made egregious errors in many of these cases. For some, it was inexcusable. For others, it was a symptom of other diseases. But you wouldn’t realize this from the stories. The enormous length of this pair of posts left no room for any in-depth understanding of any individual case, of how it got to the point where a potentially innocent man sat on death row, post-trial, post-appeal, post-state collateral proceedings, and too late for federal habeas review.
Is it fair to blame the last person in a decades-long effort to assure that another human being be put to death under a law whose only purpose was to get it done as expeditiously as possible? Sure, the law failed miserably at its purpose, but it succeeded in making sure 80 death row inmates were denied that last shot.
And it’s all because of the incompetent criminal defense lawyers. I know this because I read the posts at the Marshall Project.
This is how the system is going to be saved. The first thing we do, let’s kill all the lawyers.
Perhaps the Marshall Project is overly ambitious, trying to tell the stories of too many cases and thus constrained to do so at their most superficial level. Perhaps the Marshall Project is more concerned with telling interesting, emotional, compelling stories, and depth would just bog them down and bore the readers with understanding. Perhaps they just don’t get it.
But given that the first thing out of the box is such an extraordinarily lengthy condemnation of criminal defense lawyers, whether deserved or not, for their piece of responsibility in a fouled system disturbs me.
Granted, my perspective was unsupportive,* as I found the shameless immodesty of The Marshall Project’s arrival to save us from the dark ages of criminal justice system deeply distressing. I distrust saviors, especially when they dismiss all that came before them and proclaim themselves the true messiah.
Now that I realize, however, that I’m part of that small sub-niche of the guild responsible for murdering innocent defendants because we’re too lazy, incompetent or venal to use FedEx, I understand why The Marshall Project has chosen us as its first point of attack.
* To be fair, I received an invitation from Andrew Cohen to submit “commentary essays . . . on criminal justice issues/news/developments” to him for inclusion at The Marshall Project. I assume it was sent to many others as well, as it appeared to be a form email.
Notably, The Marshall Project has received $6 million of its $10 million in funding to date. There was no offer to pay for my commentary essays. I did, however, respond to Andrew, telling him that if he sees any post here that interested him, he should let me know. I haven’t heard back.