The Marshall Project’s First Victim: Defense Lawyers

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.

14 comments on “The Marshall Project’s First Victim: Defense Lawyers

  1. Dan

    Sure, it may have problems, but you’ve overlooked the vital role this project played in rebuilding post-war Europe.

  2. Dave

    My primary area of practice is federal habeas so this article caught my attention.

    It is truly sad that the article didn’t get into the systemic problem. There are plenty of good defense attorneys who are overworked and underpaid for the representation. And of course there are bad ones. But most prisoners don’t have attorneys at all on habeas. Only a handful ever do.

    The systemic issue also comes in as known incompetent defense counsel get appointed for direct appeal again and again for reasons no one can explain (at least to me) and then their incompetent appeal is used as the blueprint by a pro per petitioner on habeas … Which frankly is probably the best you can do as a non lawyer unless you are capable of real legal research yourself. (Given the need to exhaust issues you have to use your direct appeal claims or raise new ones in a state motion for relief from judgment).

    And so really now that I think about it the article was just terrible overall for not giving any proper context. It doesn’t even do a half assed job of explaining what habeas really is (and isn’t . . I too have been rather underwhelmed by the Marshall project.

    1. SHG Post author

      I was shocked that the post never explained that it was talking about federal habeas until it was deep in, and then did so in the most cursory fashion. It was just bad stuff.

  3. Patrick Maupin

    There are a couple of things driving the narrative here. First of all, everybody else’s job is easy. You can look over at what they do and realize it’s a piece of cake. Obviously, this includes defense attorneys. So if they failed, it’s because they were incompetent at an easy job.

    Second, if you don’t like the outcome, it’s obviously the defense attorney’s fault, because the prosecution did what they set out to, and the defense attorney didn’t. (The judges looked decoratively judicial and kept order in the courtroom. What else are they for?)

    1. SHG Post author

      There is plenty of fault to go around, but I found the fact that they chose, they made a deliberate decision, to focus on defense lawyer failures first and to the exclusion of the many fundamental systemic failures, most telling.

  4. Wheeze the People™

    Drats, and here I was, set to step in and be your personal savior; but nooo, you proclaim your distrust for all saviors, which, even using liberal, as opposed to strict, construction, must include me . . .

    I was going to grant you heretofore undisclosed but certainly the most awesome of superpowers. I was just about to make you the next member (alternate meaning 23) of the Marvel Justice League, situated to the right of Wonder Woman and to the left of Aqua Man . . .

    I was to be your master and your superhero name was to be The Phat Grasshopper™. But you, through your hateful and ill-considered words, have ruined everything; everything I tell ya . . .

      1. Wheeze the People™

        No whales; no delicious piping hot whale soup for you, which could have been consumed to thaw your chilled bones in what will be a frigid winter for all heartless curmudgeons, as I have commanded. Nothing. nada, zilch — you get the idea. (BTW, did I ever tell you about the time I ate whale steak in Japan?? It was way too expensive and tasted like shit. My powers to resist were rendered ineffective by an overabundance of sake. Alcohol, as I finally learned, is officially my Kryptonite) . . .

        You are now in the pantheon of notable fallen angels, right up there with you know who . . .

  5. Matthew Cline

    Some involve cases where the basis remained concealed by prosecutors, such as Brady violations, until after the time ran out.

    Wait, wait, wait. If a prosecutor conceals exculpatory evidence in a case which leads to a death penalty verdict, and keeps it secret for long enough, then that evidence can’t be used to get the defendant off death row when it becomes available?

    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.

    I presume that’s to prevent defense attorneys from purposefully being incompetent in order to get their clients a few more years of life?

    1. SHG Post author

      Your first question is too involved to answer here, but the TL;dr answer is sometimes. Your second would include purposeful incompetence, but it’s not the primary concern.

  6. Pingback: The Marshall Project Takes A Swan Dive Into The Bidet (Update) | Simple Justice

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