Tuesday, August 05, 2008

Proposed Court of Criminal Appeals rule change would punish last-minute appeals as "untimely"

The Texas Court of Criminal Appeals has proposed a rule change that would move up the deadline for last-minute habeas appeals in death penalty appeals to 48 hours before the execution date. Here's the full text (pdf) of the proposed rule change:
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'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.

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.

18 comments:

Anonymous said...

"when Judge Sharon Keller refused to accept a last-minute pleading with an execution just hours away because, "We close at 5." "

Sorry, but for some odd reason, I have always had a core belief that justice would operate at all hours.

So basically what they are saying is, we will no longer honor ANY attempts at a stay even if it has evidence to prove innocence if it falls at 47 hours or less.

How absurd is this.. a law to provide them a guiltless out if it turns out someone innocent could have been saved?

Anonymous said...

Now this is just rich. Every other litigant in the world has to deal with time deadlines etc. So why don't capital murderers. Their lawyers, for too long, have been waiting until the last minute when they could have filed earlier. Now, it's going to bite them in the ass. Ha. Ha. Ha. Ha.

rage said...

I think this is reasonable, I never understood the last minute appeals except as an attempt to "surprise" the courts with new evidence or arguments of constitutional violations.

If they really have new evidence or arguments, they should be filed in time to be heard through the appropriate channels. It's years before the guy gets the needle, plenty of time to do it without a hail Mary on the day of the execution.

That being said, there should be a provision for emergency rulings by a superior court, new evidence in the event it is discovered that late, etc., but not every case should be subject to the "gotcha: rule at the last minute.

Also, Anon at 2:43 is a turd burglar.

Anonymous said...

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.


I think you are wrong and this is absolutely the result of games played by defense counsel.

The reason there are so many last minutes temporary stays of execution is that, prior to this new rule, when the defense has no other legitimate argument, they would wait until 4:59pm to file a bogus steaming pile of crap and call it a "motion."

When that happens the court justices have a choice: either they, and all their staff, can work late to rule on the baseless motion, or they can grant a stay and respond with a ruling during normal business hours.

If the defense had a valid claim, surely they would bring it earlier to get their man off death row... this tactic was only ever used with bogus BS motions.

So one day the defense attorney had a little computer problem at 4:45 and couldnt get his motion in by 4:59... Justice Keller said "we close at 5" and that totally rocks!

Live by the fire, die by the fire.

Ron in Houston said...

From a legal perspective, I can rationalize the rule; however, from a "human" view of the world, if we value life so much that we'll put people to death, then why shouldn't we value life enough to allow last minute appeals?

Don Dickson said...

I don't have a problem with this rule. It strikes me as a rare moment of sanity from the CCA.

I don't think it's logical to complain about keeping people on death row for a decade or two, and then to complain in the same breath about a court rule that requires you to file your last pleadings two days before the execution date.

"You had ten or twenty years to file that motion, counsel."

Part of the problem is that it's just such a HASSLE to kill people in the name of the state. It's quite a production. And it's an expensive show to put on. I'd be willing to bet that last-minute stays add hugely to the already ridiculous cost of capital punishment.

Anonymous said...

OK, if it is a problem, have executions during court hours. I see no reason to limit appeals made at the last moment.

In the real world, evidence may be held until the last moment in hopes it will not be needed because something else will delay the execution.

Why not eliminate executions and solve the whole problem?

Anonymous said...

"shouldn't we value life enough to allow last minute appeals?" - Ron in Houston


The new rule does not eliminate last minute appeals. It just requires the attorney filing the last minute appeal to swear under oath that it was necessary to file at the last minute and not some kind of stupid game to force another stay of execution by filing a craptastic motion at the 11th hour.

Anonymous said...

First, I agree with those who reject your view of the Richard case. If you are going to keep repeating this canard you might acknowledge that the U.S. Supreme Court also denied Richard a stay.
http://www.supremecourtus.gov/orders/courtorders/092507pzr.pdf

I have dealt with the Texas Defender Service's last minute mischief and have no sympathy for their complaints. In my case, they filed a subsequent habeas shortly before the execution date -- which made arguments that could have been presented years earlier -- and then claimed that their complaints were too complicated to be addressed before the execution. (The basis upon which they sought a stay in Richard -- a claim that the lethal injection procedure violated the 8th amend. -- was ultimately shown to have been without merit.)

Second, it's misleading to talk about "last-minute appeals." This rule relates to a last minute subsequent habeas application. This rule applies to someone who has already (1) lost on direct appeal (2) lost a state habeas and (3) lost a federal habeas.

Third, this new rule is a long overdue effort to prevent ant-death penalty zealots from creating chaos. The Rule is borrowed from the Fifth Circuit's Rule 8.10:

Counsel who seek a certificate of appealability, permission to file a successive petition, or an appeal from a district court judgment less than 5 days before the scheduled execution must attach to the proposed filing a detailed explanation stating under oath the reason for the delay. If the motions are filed less than 5 days before the scheduled execution, the court may direct counsel to show good cause for the late filing. If counsel cannot do so, counsel will be subject to sanctions.


http://www.ca5.uscourts.gov/clerk/docs/frap2007.pdf

Anonymous said...

rage, when you stop rimming your brother, maybe you can talk about who is and who is not a turd burglar

Gritsforbreakfast said...

5:38, it's hardly a "canard" - Keller's fellow CCA judges also thought she was out of line on the Richard case and criticized her action publicly.

You can't blame TDS for following the rules the CCA laid out for them. I'm sure if they're changed, they'll follow those. Either way, those who basically just think capital defendants shouldn't have lawyers or any access to the courts will still find reason to complain.

Anonymous said...

Those who file things at the last minute give the system a bad name. If it is brand new evidence that just did not exist before, that is one thing. But normally that is not the situation, it is a lawyer hanging on until the last minute for the purpose of delay. If there is merit to it, file it early and get it litigated. Otherwise, it is viewed by the public as what it is -- gamesmanship entirely unrelated to actual innocence.

Anonymous said...

The foreseeable problem with this new rule is that it doesn't define what "exceptional circumstances" would be to justify a last minute or emergency filing. The rule in itself sounds somewhat realistic otherwise, that is if one can trust the CCA...

Anonymous said...

The real purpose of the rule seems to be to make life more onerous for the handful of attorneys who take death penalty cases during the last stages of the process, few of whom are making particularly lavish livings, and none of whom that I know deliberately sit on good claims for years if they think that they can get the client relief at an earlier stage. The reality is that all too often organizations like TDS get drafted in late after other "lawyers" have done precious little over the years for the clients, and then TDS pull out all the stops at the last minute and actually come up with something that could have been found and filed earlier by equally competent counsel. If Texas is serious about providing fairness and due process in capital cases it would institute a statewide capital habeas unit, staffed by adequately compensated and trained professionals, with funding for investigation, rather than relying on the notoriously patchy appointment list for state habeas cases. Until and unless Texas gets serious about justice and the true rule of law - and the Medellin execution tells us that our State cares a good deal more about insolently swaggering around the world stage than being part of an orderly system of justice - then TDS or David Dow or someone else who actually gives a damn about fairness will continue to have to step in at the last minute, for little if any money and less thanks, in order to see whether - as so often - some aspect of the client's case has previously been overlooked.

By the way, some of the vulgar comments this morning have been unworthy of the boys' restroom back at High School - I assume that Grits will get in there and delete some of them but really, people, please develop some manners!

Anonymous said...

You might have a point if the antics of TDS or David Dow resembled in any way a pursuit of fairness rather than an miserable attempt to abuse the rules to game the system. The selfish behavior of Dow and his kind have actually made the situtation worse for anyone with a claim of actual innocence.

Anonymous said...

If the presence on the scene of "Dow and his kind" were a problem, then a proper state habeas office would mitigate that problem, rather then their presence being a reason why there should not be such an office.

And what exactly is so selfish about "Dow and his kind" that would make it even harder than it is already to win on an actual innocence claim? Dow and TDS are on the receiving end of all kinds of flak, but their critics seem short of actual examples of their alleged wrongdoing. State your allegations clearly and specifically, please ... or don't you want to wait for an answer?

Anonymous said...

Dow is the kind of person who doesn't mind making a mockery of democracy, the jury system, and the rules of the highest criminal court in this state by playing games with a very serious judicial process... just to futher his own selfish political interests.

Gritsforbreakfast said...

"just to futher his own selfish political interests"

Hmmmmmm ... and what are those, in your mind?