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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