Anthony Wainwright, Executed June 10 in Florida, Lost Federal Appeals Due to Lawyers’ Mistakes and Indifference and Was Denied Counsel of His Choice

When a lawyer makes a mis­take, who suf­fers the con­se­quences? The ​“agency prin­ci­ple” says the client does, under the ratio­nale that clients choose their lawyers and autho­rize their actions. But courts uni­ver­sal­ly apply this prin­ci­ple to all attor­ney-client rela­tion­ships, includ­ing when indi­gent, iso­lat­ed death-sen­tenced pris­on­ers are appoint­ed attor­neys by the state, with lit­tle or no means of con­trol­ling their lawyers’ actions. Many com­men­ta­tors have not­ed the prob­lems apply­ing this the­o­ry to those on death row. Building on work by Professor Eric M. Freedman and Paul Sessa, DPI recent­ly doc­u­ment­ed cas­es where attor­neys missed fil­ing dead­lines, result­ing in courts dis­miss­ing fed­er­al appeals for over six­ty men. Last night, Anthony Wainwright became the thir­ty-sec­ond per­son to be exe­cut­ed in the mod­ern death penal­ty era with­out ever hav­ing a fed­er­al court review his con­sti­tu­tion­al claims. One of his attor­neys missed his fed­er­al fil­ing dead­line, while anoth­er refused to chal­lenge Mr. Wainwright’s exe­cu­tion — and courts pun­ished Mr. Wainwright for his attor­neys’ fail­ures while block­ing him from pro­ceed­ing with the attor­ney of his choice.

Attorney James T. Hobson was appoint­ed to rep­re­sent Mr. Wainwright in fed­er­al habeas pro­ceed­ings but missed the fil­ing dead­line by six days. Mr. Wainwright’s only option was to con­vince the court he deserved ​“equi­table tolling,” pro­vid­ing him with an exten­sion of the dead­line ​“in the inter­ests of jus­tice.” But Mr. Wainwright was not appoint­ed a new attor­ney for this pur­pose; Mr. Hobson made the argu­ment. Federal courts lat­er agreed this was a con­flict of inter­est. Mr. Hobson ​“was the attor­ney who missed the fil­ing dead­line and was placed in the posi­tion of argu­ing his own inef­fec­tive­ness,” the Eleventh Circuit Court of Appeals wrote. Mr. Hobson ​“avoid­ed dis­cus­sion of his own per­for­mance” and instead blamed the error on a low­er court deci­sion being mailed to the wrong address. 

Despite find­ing a con­flict of inter­est, the fed­er­al courts did not give Mr. Wainwright anoth­er chance to argue for equi­table tolling with a new attor­ney, and they dis­missed the appeal on the grounds that Mr. Hobson’s ​“neg­li­gent mis­cal­cu­la­tion of the fil­ing dead­line — though trou­bling — was not extra­or­di­nary.” The Eleventh Circuit acknowl­edged that the peti­tion Mr. Hobson did file ​“con­tained typo­graph­i­cal and fac­tu­al errors, and only includ­ed four case cita­tions,” but held that ​“those short­com­ings demon­strat­ed neg­li­gence” rather than will­ful mis­con­duct. Mr. Hobson was lat­er dis­ci­plined by the Florida Bar for miss­ing anoth­er fil­ing dead­line in a separate case. 

Mr. Wainwright also argued that Mr. Hobson had ​“mis­rep­re­sent­ed his expe­ri­ence and qual­i­fi­ca­tions” in cap­i­tal cas­es, which ​“led to him being hired and paid $25,000 by a char­i­ta­ble orga­ni­za­tion” to argue Mr. Wainwright’s state post-con­vic­tion and fed­er­al appeals. According to the Eleventh Circuit, ​“the prob­lem is that there is no ​‘causal link’ between that ​‘appar­ent deceit’ and the sub­se­quent untime­ly fil­ing of the habeas cor­pus petition…[a]nd with­out that link, any ​‘appar­ent deceit’ on Mr. Hobson’s part does not pro­vide a basis for…relief based on equi­table tolling.” As a result, no fed­er­al court ever con­sid­ered the mer­its of seri­ous con­sti­tu­tion­al issues in Mr. Wainwright’s case, such as whether his tri­al coun­sel had been effec­tive, whether the pros­e­cu­tion with­held mate­r­i­al evi­dence from the defense, or whether Mr. Wainwright had intel­lec­tu­al dis­abil­i­ty or brain impair­ments that would exempt him from the death penalty.

It is no acci­dent that Mr. Wainwright faced these rep­re­sen­ta­tion issues in Florida, which alone accounts for over one-third of missed dead­lines com­piled by Professor Freedman and Mr. Sessa. The state’s fail­ure to pro­vide com­pe­tent coun­sel to death-sen­tenced pris­on­ers can be traced to a cost-sav­ing scheme in the late 1990s. The leg­is­la­ture cre­at­ed a reg­istry of attor­neys to rep­re­sent cap­i­tal clients, includ­ing attor­neys with lit­tle death penal­ty expe­ri­ence, while simul­ta­ne­ous­ly cut­ting funds for ded­i­cat­ed cap­i­tal defense offices. Most of the missed dead­lines occurred in cas­es where reg­istry lawyers were appoint­ed. Other Florida pris­on­ers who lost their chance for fed­er­al review because their attor­neys missed dead­lines include Jeffrey Hutchinson, who was exe­cut­ed May 1, and Mr. Wainwright’s code­fen­dant Richard Hamilton, who died on death row in 2023. Mr. Hamilton was held respon­si­ble for his attorney’s fail­ure to file in time even though the judge had giv­en the par­ties the wrong filing date. 

Several years after Mr. Hobson missed the fed­er­al dead­line in 2005, Florida appoint­ed reg­istry attor­ney Baya Harrison III to rep­re­sent Mr. Wainwright in fur­ther state pro­ceed­ings. But by the time Gov. Ron DeSantis signed Mr. Wainwright’s exe­cu­tion war­rant this spring, Mr. Harrison had not per­son­al­ly spo­ken with Mr. Wainwright in over a decade of rep­re­sen­ta­tion. He had repeat­ed­ly waived his client’s rights with no con­sul­ta­tion and declined oppor­tu­ni­ties to pur­sue new avenues of appeal. On May 9, the Florida Supreme Court gave Mr. Wainwright 11 days to file any peti­tions chal­leng­ing his sched­uled exe­cu­tion, but all Mr. Wainwright heard from Mr. Harrison was silence. Instead of call­ing his client, Mr. Harrison mailed him a let­ter that took ten days to arrive because of an incorrect address. 

Meanwhile, Terri Backhus, a retired attor­ney with decades of cap­i­tal habeas expe­ri­ence who had pre­vi­ous­ly worked with Mr. Wainwright, sub­mit­ted a pro bono peti­tion on Mr. Wainwright’s behalf along with his signed con­sent to her rep­re­sen­ta­tion. But Mr. Wainwright then faced a ​“per­verse” prob­lem that is all too com­mon in these cir­cum­stances: the court refused to accept the fil­ing with­out the approval of Mr. Harrison, who was still coun­sel of record, and refused to con­sid­er the client’s request to replace Mr. Harrison as coun­sel. When the court told Mr. Harrison the peti­tion would be dis­missed unless he approved it, he refused to do so. He did not file any peti­tion of his own.

Ms. Backhus appealed Mr. Wainwright’s dis­missed peti­tion in state and fed­er­al court, but state pros­e­cu­tors suc­cess­ful­ly fought at every turn to deny her assis­tance in favor of Mr. Harrison’s inac­tion. A group of orga­ni­za­tions includ­ing the Florida Association of Criminal Defense Lawyers, the Florida Justice Institute, and Conservatives Concerned sub­mit­ted eth­i­cal argu­ments, urg­ing the U.S. Supreme Court to stay Mr. Wainwright’s exe­cu­tion and rec­og­nize Ms. Backhus as his cho­sen coun­sel so that his claims could be con­sid­ered. The ​“Florida court gave uni­lat­er­al author­i­ty to a lawyer who had no time or desire to pre­pare a habeas peti­tion him­self and who opposed allow­ing Ms. Backhus to file the one that Mr. Wainwright autho­rized her to pre­pare,” the group wrote. “[P]redictably, in clos­ing the cour­t­house door to Mr. Wainwright’s cho­sen attor­ney, the Florida Supreme Court denied Mr. Wainwright access to the state supreme court’s habeas process altogether.” 

The ACLU also filed a brief in sup­port of Mr. Wainwright that con­nect­ed his case to Florida’s flawed reg­istry sys­tem, which is ​“plagued by wide­spread break­downs in cap­i­tal rep­re­sen­ta­tion.” The ​“con­sti­tu­tion­al issues raised here…are part of a sys­tem in which the State forces indi­vid­u­als under a death sen­tence to be rep­re­sent­ed by assigned coun­sel, and a larg­er pat­tern of those unac­count­able reg­istry lawyers waiv­ing claims, fil­ing ​‘the wrong claims at the wrong time,’ and lack­ing the ade­quate train­ing need­ed to rep­re­sent peo­ple con­demned to be exe­cut­ed by the State,” the ACLU wrote. The pris­on­ers who suf­fer the con­se­quences have no ​“reme­dies or recourse for poor per­for­mance” of their lawyers save a com­plaint to the Florida bar, which they can hard­ly file once they are exe­cut­ed. The ACLU not­ed that Mr. Harrison was appoint­ed to rep­re­sent at least five oth­er cap­i­tal clients and waived or for­feit­ed poten­tial­ly mer­i­to­ri­ous claims, end­ing in the exe­cu­tions of all five men.¹

Mr. Wainwright died by lethal injec­tion at 6:22 p.m. on June 10, with no fed­er­al court ever con­sid­er­ing the mer­its of his con­sti­tu­tion­al claims, nor any state courts con­sid­er­ing the final habeas peti­tion that his cho­sen attor­ney had filed.