# how should we handle defense counsel neglect in death-penalty cases?
**URL:** https://boards.straightdope.com/t/how-should-we-handle-defense-counsel-neglect-in-death-penalty-cases/530872
**Category:** Great Debates
**Created:** [March 1, 2010, 4:20pm UTC](https://boards.straightdope.com/t/how-should-we-handle-defense-counsel-neglect-in-death-penalty-cases/530872 "2010-03-01T16:20:37Z")
**Posts on this page:** 20
**Page:** 1
### Author:  [@Mr.Excellent](https://boards.straightdope.com/u/Mr.Excellent)
#### Post date: [March 1, 2010, 4:20pm UTC](https://boards.straightdope.com/t/how-should-we-handle-defense-counsel-neglect-in-death-penalty-cases/530872/1 "2010-03-01T16:20:37Z")
The Supreme Court of the United States is hearing oral arguments today in Holland v. Florida. Scotuswiki has a good breakdown of the case here: [scotuswiki.com](http://www.scotuswiki.com/index.php?title=Holland_v._Florida)
Essentially, a man on Florida’s death row did everything in his power - for months! - to get his attorney to update him on the status of his appeal, and later to get him to file a federal appeal in a timely fashion. And the lawyer did - nothing. Absolutely nothing. He never got in touch with his client, and never filed the federal appeal the client requested - nor did he state that he was not filing it. As a result, Holland missed his deadline for filing a federal habeas petition. Bizarrely, the 11th Circuit held that the “gross neglect” demonstrated by Holland’s attorney did not require that he be given additional time to file his petition.
In short - this is a man on death row who may well have lost his last chance to challenge his execution because of his lawyer’s shocking incompetence.
Would anyone be interested in speaking up for the 11th Circuit here? To me, this seems a classic case in which equity demands only one result - but the 11th Circuit isn’t composed of fools, nor is the Supreme Court, so one assumes that there must be _some_ merit to the 11th Circuit decision.
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### Author:  [@kaylasdad99](https://boards.straightdope.com/u/kaylasdad99)
#### Post date: [March 1, 2010, 4:24pm UTC](https://boards.straightdope.com/t/how-should-we-handle-defense-counsel-neglect-in-death-penalty-cases/530872/2 "2010-03-01T16:24:35Z")
To answer the question in the OP’s title, the thing to do is make the issue moot, by not having death penalty cases.
After all, the death penalty IS wrong, always and everywhere.
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### Author:  [@Odesio](https://boards.straightdope.com/u/Odesio)
#### Post date: [March 1, 2010, 4:25pm UTC](https://boards.straightdope.com/t/how-should-we-handle-defense-counsel-neglect-in-death-penalty-cases/530872/3 "2010-03-01T16:25:42Z")
> [@kaylasdad99](#):
>
> After all, the death penalty IS wrong, always and everywhere.
Well you’ve convinced me with that excellent argument.
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### Author:  [@SteveG1](https://boards.straightdope.com/u/SteveG1)
#### Post date: [March 1, 2010, 4:28pm UTC](https://boards.straightdope.com/t/how-should-we-handle-defense-counsel-neglect-in-death-penalty-cases/530872/4 "2010-03-01T16:28:06Z")
For starters, they can disbar this so called “attorney”. Then, someone can review the case and see what can be done to correct it, grant an extension (whatever it is called), and take it from there.
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### Author:  [@Mr.Excellent](https://boards.straightdope.com/u/Mr.Excellent)
#### Post date: [March 1, 2010, 4:37pm UTC](https://boards.straightdope.com/t/how-should-we-handle-defense-counsel-neglect-in-death-penalty-cases/530872/5 "2010-03-01T16:37:43Z")
> [@kaylasdad99](#):
>
> To answer the question in the OP’s title, the thing to do is make the issue moot, by not having death penalty cases.
>
> After all, the death penalty IS wrong, always and everywhere.
I completely agree. But given that we _do_ have the death penalty, at least for now, we still need to figure out how do deal with this particular problem in its implementation.
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### Author:  [@SteveG1](https://boards.straightdope.com/u/SteveG1)
#### Post date: [March 1, 2010, 4:44pm UTC](https://boards.straightdope.com/t/how-should-we-handle-defense-counsel-neglect-in-death-penalty-cases/530872/6 "2010-03-01T16:44:21Z")
> [@Mr.Excellent](#):
>
> I completely agree. But given that we _do_ have the death penalty, at least for now, we still need to figure out how do deal with this particular problem in its implementation.
For starters, he was denied “due process” because his lawyer didn’t do his job. I’m sticking with give the guy an extension, and disbar the lawyer for gross incompetence and gross negligence.
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### Author:  [@Tom\_Tildrum](https://boards.straightdope.com/u/Tom_Tildrum)
#### Post date: [March 1, 2010, 4:44pm UTC](https://boards.straightdope.com/t/how-should-we-handle-defense-counsel-neglect-in-death-penalty-cases/530872/7 "2010-03-01T16:44:22Z")
> [@kaylasdad99](#):
>
> To answer the question in the OP’s title, the thing to do is make the issue moot, by not having death penalty cases.
>
> After all, the death penalty IS wrong, always and everywhere.
The same problem can occur in any kind of criminal case.
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### Author:  [@Bricker](https://boards.straightdope.com/u/Bricker)
#### Post date: [March 1, 2010, 4:50pm UTC](https://boards.straightdope.com/t/how-should-we-handle-defense-counsel-neglect-in-death-penalty-cases/530872/8 "2010-03-01T16:50:02Z")
> [@kaylasdad99](#):
>
> To answer the question in the OP’s title, the thing to do is make the issue moot, by not having death penalty cases.
>
> After all, the death penalty IS wrong, always and everywhere.
OK, that ought to do it. Thanks for stopping by, everyone.
I would say that the death penalty is not wrong always and everywhere, but it’s wrong in this day and age in this country. Regardless of how you feel about that proposition, it’s clearly wrong when there’s no meaningful complete judicial review of a death penalty conviction, which is what happened here.
This is an equitable tolling case. Federal law provides a time limit for PCR filing. On this record, the attorney for the defendant did nothing at all about filing the federal PCR claim, and let that time limit expire. The court assumes for the purposes of this ruling that the attorney was “grossly negligent.”
So the question to be answered is: does gross negligence create a reason for the court to extend the filing time, for equitable relief? The 11th says no: “gross negligence” isn’t enough to trigger equitable relief. There must be actual misconduct, like a lie, bad faith, mental incapacity. Florida, by the way, takes an even more extreme view: there is no equitable relief, period.
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### Author:  [@SteveG1](https://boards.straightdope.com/u/SteveG1)
#### Post date: [March 1, 2010, 5:43pm UTC](https://boards.straightdope.com/t/how-should-we-handle-defense-counsel-neglect-in-death-penalty-cases/530872/9 "2010-03-01T17:43:37Z")
> [@Bricker](#):
>
> OK, that ought to do it. Thanks for stopping by, everyone.
>
> I would say that the death penalty is not wrong always and everywhere, but it’s wrong in this day and age in this country. Regardless of how you feel about that proposition, it’s clearly wrong when there’s no meaningful complete judicial review of a death penalty conviction, which is what happened here.
>
> This is an equitable tolling case. Federal law provides a time limit for PCR filing. On this record, the attorney for the defendant did nothing at all about filing the federal PCR claim, and let that time limit expire. The court assumes for the purposes of this ruling that the attorney was “grossly negligent.”
>
> So the question to be answered is: does gross negligence create a reason for the court to extend the filing time, for equitable relief? The 11th says no: “gross negligence” isn’t enough to trigger equitable relief. There must be actual misconduct, like a lie, bad faith, mental incapacity. Florida, by the way, takes an even more extreme view: there is no equitable relief, period.
I’d say this case is a good reason to re-write the law, so it doesn’t happen again. Supposedly, people are entitled to due process, representation, etc. If this was denied because the lawyer “just didn’t do anything”, then the laws should be updated to cover it. Laws can be written, modified, or removed. I’d say this one is a good candidate for updating.
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### Author:  [@kaylasdad99](https://boards.straightdope.com/u/kaylasdad99)
#### Post date: [March 1, 2010, 6:32pm UTC](https://boards.straightdope.com/t/how-should-we-handle-defense-counsel-neglect-in-death-penalty-cases/530872/10 "2010-03-01T18:32:34Z")
> [@Odesio](#):
>
> Well you’ve convinced me with that excellent argument.
Good.
I just wish it could always be that easy.
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### Author:  [@Chronos](https://boards.straightdope.com/u/Chronos)
#### Post date: [March 2, 2010, 1:12am UTC](https://boards.straightdope.com/t/how-should-we-handle-defense-counsel-neglect-in-death-penalty-cases/530872/11 "2010-03-02T01:12:14Z")
Was this counsel hired by the defendant, or the State-guaranteed public defender?
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### Author:  [@John\_DiFool](https://boards.straightdope.com/u/John_DiFool)
#### Post date: [March 2, 2010, 1:46am UTC](https://boards.straightdope.com/t/how-should-we-handle-defense-counsel-neglect-in-death-penalty-cases/530872/12 "2010-03-02T01:46:21Z")
Something very similar is occuring in Texas-a woman (from England) was convicted of murder because her attorney basically did a tenth-assed job (as in refusing to provide evidence that she was innocent). Jury felt compelled to convict her, and two appeals have fallen through, and her only hope is a governor with exactly one commutation to his name.
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### Author:  [@Rick](https://boards.straightdope.com/u/Rick)
#### Post date: [March 2, 2010, 1:52am UTC](https://boards.straightdope.com/t/how-should-we-handle-defense-counsel-neglect-in-death-penalty-cases/530872/13 "2010-03-02T01:52:53Z")
Give the attorney a seat in the chair next to the convicted.
Lose one or two attorneys that way, I guarantee that word will get around, and the problem will be gone.
Now wasn’t that simple?
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### Author:  [@manila](https://boards.straightdope.com/u/manila)
#### Post date: [March 2, 2010, 8:06am UTC](https://boards.straightdope.com/t/how-should-we-handle-defense-counsel-neglect-in-death-penalty-cases/530872/14 "2010-03-02T08:06:21Z")
**Bricker,** could this ever be a reasonable strategy on the defence lawyer’s side. If the defendant doesn’t get counsel to whatever constitutional standard is guaranteed, then will he get a retrial or some other remedy.
On re-reading that wouldn’t appear applicable in this case, but could it ever work to the defendant’s advantage?
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### Author:  [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)
#### Post date: [March 2, 2010, 9:10pm UTC](https://boards.straightdope.com/t/how-should-we-handle-defense-counsel-neglect-in-death-penalty-cases/530872/15 "2010-03-02T21:10:08Z")
Guy Accused of Capital Murder to his Lawyer: “So, what’s the strategy you’re going to use to get me free?”
Lawyer: “Well, I’m going to consciously not do a good job in this trial. We’ll see just how good a case the DA has. Then, if you’re convicted, we’ll spend several years trying to get the conviction over-turned based on my incompetence. Then, assuming we get a re-trial, that’s when your new lawyer (won’t be me, because I’ll be disbarred by then) will _really_ bring his A-Game to get an acquittal.”
Guy Accused of Capital Murder: “Umm - won’t I be on death row by then?”
Lawyer: “I’m not saying it’s a perfect strategy.”
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### Author:  [@villa](https://boards.straightdope.com/u/villa)
#### Post date: [March 2, 2010, 9:36pm UTC](https://boards.straightdope.com/t/how-should-we-handle-defense-counsel-neglect-in-death-penalty-cases/530872/16 "2010-03-02T21:36:12Z")
> [@Mr.Excellent](#):
>
> Would anyone be interested in speaking up for the 11th Circuit here? To me, this seems a classic case in which equity demands only one result - but the 11th Circuit isn’t composed of fools, nor is the Supreme Court, so one assumes that there must be _some_ merit to the 11th Circuit decision.
Up front, I will say I haven’t read the case, and I am not a criminal appeals lawyer, but my guess for the justification would be that once waived, you have to show a reasonable chance of success for there to be prejudice from it. If the 11th decided that the defendant was simply going through the motions, and could not show any reasonable chance of success, there is no reason to reverse the waiver.
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### Author:  [@alphaboi867](https://boards.straightdope.com/u/alphaboi867)
#### Post date: [March 2, 2010, 11:31pm UTC](https://boards.straightdope.com/t/how-should-we-handle-defense-counsel-neglect-in-death-penalty-cases/530872/17 "2010-03-02T23:31:30Z")
> [@Rick](#):
>
> Give the attorney a seat in the chair next to the convicted.
> Lose one or two attorneys that way, I guarantee that word will get around, and the problem will be gone.
>
> Now wasn’t that simple?
And no lawyer in the country would ever be willing to defend anyone facing the death penalty.
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### Author:  [@Bricker](https://boards.straightdope.com/u/Bricker)
#### Post date: [March 3, 2010, 7:50am UTC](https://boards.straightdope.com/t/how-should-we-handle-defense-counsel-neglect-in-death-penalty-cases/530872/18 "2010-03-03T07:50:21Z")
> [@manila](#):
>
> **Bricker,** could this ever be a reasonable strategy on the defence lawyer’s side. If the defendant doesn’t get counsel to whatever constitutional standard is guaranteed, then will he get a retrial or some other remedy.
>
> On re-reading that wouldn’t appear applicable in this case, but could it ever work to the defendant’s advantage?
Theoretically, that’s already the rule. There’s a Supreme Court case called _Strickland v. Washington_ that says basically what you say above: if the attorney’s perfomance sucks badly enough, you get a retrial.
But the devil is in the details.
In order to prevail on a Strickland claim, the defendant must show two things: that his attorney’s performance fell below an objective, measurable standard; AND that as a result of that failure, he suffered a specific, articulable prejudice.
And it’s a high bar to reach. A reviewing court will start from the proposition that a licensed attorney provides competent representation. So every seemingly bad decision must be shown to be truly bad, and not the result of, say, a tactical choice during trial.
Worse is the second bar: let’s say that on appeal, you point out that your attorney fell asleep during the trial. That’s it, right? Slam-sunk ineffective assistance.
Nope. You must also show that while he was asleep, something happened that he didn’t respond to, AND that if he had, the outcome of the trial would likely have been different.
Not too many Strickland claims suceed, because the bar is crazy high.
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### Author:  [@alice\_in\_wonderland](https://boards.straightdope.com/u/alice_in_wonderland)
#### Post date: [March 3, 2010, 3:43pm UTC](https://boards.straightdope.com/t/how-should-we-handle-defense-counsel-neglect-in-death-penalty-cases/530872/19 "2010-03-03T15:43:11Z")
> [@Bricker](#):
>
> On this record, the attorney for the defendant did nothing at all about filing the federal PCR claim, and let that time limit expire.
Sorry for the hijack - I really have no knowledge or answer for the OP; however, this brought a question to my mind.
Why would an attorney do this?
Obviously, gross incompetence is one reason, but lets assume that someone who can pass the bar isn’t a total moron.
Honestly, the first thing I thought of was that perhaps this defandant is such a nasty, bad mo-fo that his attorney figured the world would be better off without him in it and chose to do nothing. I realize that’s a rather Holywood type scenario.
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### Author:  [@Marienee](https://boards.straightdope.com/u/Marienee)
#### Post date: [March 3, 2010, 3:49pm UTC](https://boards.straightdope.com/t/how-should-we-handle-defense-counsel-neglect-in-death-penalty-cases/530872/20 "2010-03-03T15:49:03Z")
> [@villa](#):
>
> Up front, I will say I haven’t read the case, and I am not a criminal appeals lawyer, but my guess for the justification would be that once waived, you have to show a reasonable chance of success for there to be prejudice from it. If the 11th decided that the defendant was simply going through the motions, and could not show any reasonable chance of success, there is no reason to reverse the waiver.
You know, that’s what I expected also. But that does not seem to be where they went. They seem to take the position that the purpose of the federal statute was precisely to limit access to this (equitable) remedy to a specific period of time in order to cut down on the length and complexity of the appellate process in death cases, and that they are not going to enlarge it.
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