The Death Penalty Information Center is pleased to share a powerful new resource illustrating the dire consequences of inadequate legal representation in capital cases: a database of cases that were dismissed because they were not filed by the statutory deadline. The list of cases, developed by Professor Eric M. Freedman (pictured) and law student Paul Sessa of Hofstra University School of Law, will be updated by DPI going forward. Mr. Sessa and Professor Freedman found that from 1996 to 2024, courts dismissed some or all of the claims in sixty cases without conducting any judicial review of the merits—including numerous claims of actual innocence—solely because the claims were not filed in time.

Courts have been uniformly unsympathetic to the plight of death-sentenced prisoners who are frequently appointed lawyers over whom they have no control but whose decisions are imputed to them. The unique circumstances of death row are why some commentators argue that the agency principles ordinarily applicable to attorney-client relationships should not be applicable in death penalty appeals: 

First, it is assumed that the client voluntarily chooses his lawyer for competence, diligence, and loyalty. Second, it is assumed that the client has the ability to direct the actions of the lawyer or, at the very least, that constant and adequate opportunities exist for communication between the client and his lawyer. But these assumptions do not apply to inmates on death row, almost all of whom do not choose their lawyers. Instead they must depend on appointed or pro bono volunteer counsel who too often lack expertise in post-conviction death penalty representation. Consequently, the representation provided in state and federal post-conviction proceedings is too often inadequate. 

- Judge Rosemary Barkett, concurring in result only, Hutchinson v. Florida, 677 F.3d 1097, 1104 (11th Cir. 2012).

Among the cases in the database are 28 prisoners who were executed without any meaningful judicial review of their claims. For example, Gregory Scott Johnson had until Monday, June 28, 1998, to file his appeal. His lawyer mailed the petition to the court on Friday, June 25. But the court did not receive the petition until Tuesday, June 29—one day late. The Seventh Circuit Court of Appeals acknowledged that Mr. Johnson’s lawyer “bungled the job” and should have known that appeals are only considered filed once received by the court. But the Seventh Circuit ruled against Mr. Johnson: 

No one interfered with Johnson’s ability to pursue collateral relief in a timely fashion. He wants us to treat his own lawyer as the source of interference, but lawyers are agents. Their acts (good and bad) are attributed to the clients they represent. […] So it is as if Johnson himself had made the decisions that led to the delay. 

- Johnson v. McBride, 381 F.3d 587, 589 (7th Cir. 2004).

The state of Indiana executed Mr. Johnson nine months later. 

To learn more, visit our new page, The Human Cost of Missed Deadlines. Professor Freedman and Mr. Sessa developed this list as part of their research for Professor Freedman’s recent article, No Need to Wait: Congress Has the Power Under Section Five of the Fourteenth Amendment to Abolish the Death Penalty in the States, 32 Wm. & Mary Bill Rts. J. 1049 (2024).

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