21 December 2005

The Limits Of An Adversary System

SCOTUS Blog offers the following short note:

The New York Times has this article on the fact that, despite a Supreme Court holding prohibiting the execution of the mentally retarded, the Fifth Circuit has held that a Texas death row inmate who may be retarded cannot raise the issue in federal court because his lawyer missed a filing deadline. The cases is also discussed by the Houston Chronicle and Dallas News.

A similiar case before the Colorado Supreme Court (thanks to Colorado Appeals blog), whose question presented appears below, raises similar issues concering ineffective assistance of and lack of counsel:

People v. Weatherall, No. 05SA233:

Petitioner Christopher Weatherall requests that his judgment of conviction and sentence be vacated because the Denver District Court failed to consider and rule on his Crim. P. 35(c) motion in a timely manner. In 2002, the Court of Appeals affirmed in part, reversed in part and remanded for an evidentiary hearing on Weatherall’s Rule 35 (c) motion. The Supreme Court denied certiorari, and the mandate issued from the Court of Appeals in August 2003. The Denver District Court appointed a lawyer for Weatherall in November 2004. When that lawyer withdrew, a new lawyer was appointed in January 2005. Since then, no action has been taken in the case and Weatherall has not received a response to his request for a status report on the case.

On November 4, 2005, the Supreme Court issued a rule to show cause why the requested relief should not be granted. Respondent Judge Rappaport is directed to provide a written answer on or before December 5, 2005 why the relief requested in the petition should not be granted. Petitioner Weatherall has thirty days from receipt of the answer within which to reply.

These cases, and many others like it, particularly death penalty cases where the defendants are raising the claim that their constitutional rights were violated due to ineffective assistance of counsel, point out one of the central problems with our criminal justice system. It is organized on an adversary basis, but it is not morally acceptable for people to be punished because their advocates, whom they usually have no choice in selecting because they are indigent, make mistakes.

The problem is systemic and runs deep. For example, I know of almost no jurisdiction where public defenders are compensated as well as prosecutors are and given comparable case loads. Yet, how can it be morally acceptable for the "but for" cause of a person's execution or extended imprisonment to be an incompetent or overworked lawyer's failure to meet a filing deadline.

The criminal justice system needs to be redesigned in a way that doesn't make life or death decisions based upon rules adopted administrative convenience. Those decisions need to be made on the merits, no matter what, so new remedies for attorney lack of diligence (perhaps a forced appearance of the attorney under threat of contempt and assignment of new counsel when deadlines are missed) need to be devised. Firm deadlines with harsh consequences, for which failures to comply are almost always an attorneys' fault, don't belong in the criminal justice system because the defendants who suffer the consequences can't redress the wrongs that they have suffered by suing their own lawyers and getting compensation that way.

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