I'm sure in part this rule was proposed to prevent any future embarrassment like that endured by the CCA last fall when Judge Sharon Keller refused to accept a last-minute pleading with an execution just hours away because, "We close at 5." I'm no attorney, much less a capital appellate specialist, so I have little understanding of what practical implications this may have on the process beyond just moving the deadline up 2 days. I do know a fairly significant portion of those last-minute appeals succeed, at least temporarily, which is why you see execution dates so frequently set then delayed.MISCELLANEOUS RULE 08-101
Procedures in Death Penalty Cases Involving Requests for Stay of Execution and Related Filings in Texas State Trial Courts and the Court of Criminal Appeals
1. Time Requirements for Habeas Petitions or Other Motions. Inmates sentenced to death who seek a stay of execution or who wish to file a subsequent writ application or other motion seeking any affirmative relief from, or relating to, a death sentence must exercise reasonable diligence in timely filing such requests. A motion for stay of execution, or any other motion relating to a death sentence, shall be deemed untimely if it is filed less than forty-eight hours before 6:00 p.m. on the scheduled execution date. Thus, a request for a stay of execution filed at 7:00 p.m. on a Monday evening when an execution is scheduled on Wednesday at 6:00 p.m. is untimely.
2. Special Requirements for Untimely Petitions or Other Motions. Counsel who seek to file an untimely motion for a stay of execution or who wish to file any other untimely motion requesting affirmative relief in an impending execution case, must attach to the proposed filing a detailed explanation stating under oath, subject to the penalties of perjury, the reason for the delay and why counsel found it physically, legally, or factually impossible to file a timely request or motion. Counsel is required to show good cause for the untimely filing.
3. Sanctions. Counsel who fails to attach a sworn detailed explanation to an untimely filing or who fails to adequately justify the necessity for an untimely filing shall be sanctioned. Such sanctions include, but are not limited to, (1) referral to the Chief Disciplinary Counsel of the State Bar of Texas; (2) contempt of court; (3) removal from the list of Tex. Code Crim. Proc. Art. 11.071 list of attorneys; (4) restitution of costs incurred by the opposing party; (5) any other sanction allowable under Tex. R. Civ. P. 215.2.
I don't particularly have a dog in this fight but I'm sure at least some Grits readers have whole packs of hounds they're ready to unleash on the topic. Without having heard any arguments against the rule, it doesn't seem wholly unreasonable to limit last-minute capital filings filings in the 2 days before an execution, though the penalty laid out in section 3 is pretty harsh - particularly since the highly public blunders that cause the court to change the rule were all of the judges' making, not defense counsel. Essentially the same faction of judges has been in charge of the court and its rulemaking for the last 14 years.
What do you think of the new rule? Are the penalties appropriate and commensurate with penalties for other miscues by attorneys? Will it solve the problems associated with last minute appeals or just move the timeline up? What about in a case like Charles Hood's where an execution date is struck down by one judge and reinstated hours later (for the same day) by another? You can say such a filing would be "adequately justified," and I'd certainly agree personally, but I don't wear the black robe. If CCA judges with a jaundiced, "pro-prosecution" view are deciding whether the filing is necessary, the rule could become subject to politicization and abuse.
I don't know the answers to these questions and hence don't really know what I think about it, but welcome Grits readers insights and opinions about whether it's the right move.