When lawyers stumble, only their clients fall
In at least 80 capital cases in which attorneys have missed the deadline, it is almost always the prisoner alone who suffers the consequences
In the fall of 2006, a Florida attorney named Mary Catherine Bonner went before the U.S. Supreme Court to plead for a death-row prisoner whose last-chance appeal had been thrown out because his previous lawyer had missed the filing deadline.
“You know, being lawyers, we always do file at the last minute,” Bonner told the justices.
DEATH BY DEADLINE: This investigation was reported and written by Ken Armstrong for The Marshall Project, a nonprofit news organization that has just launched. Sign up for their newsletter, or follow The Marshall Project on Facebook or Twitter.
Above: The Florida state prison houses the state’s execution chamber. Finding capable attorneys to handle the habeas cases has been challenging in Florida, which has accounted for 37 of the 80 cases with missed deadlines. (Matt McClain/ The Washington Post)
Bonner spoke with some authority. An honors graduate of the University of Miami law school, she had defended some high-profile clients, dealt with complex international legal issues and been admitted to practice in a long list of federal courts.
But barely a month before her Supreme Court argument, Bonner had been upbraided herself by a federal judge who was confronted with two other death-penalty cases where Bonner had missed the filing deadline. In one, she was late by 210 days; in the other, 278 days. In a third federal case earlier that year, her petition for relief under habeas corpus was 312 days late.
“[I]t is hard for me to fathom how a lawyer who asked for and received the appointment of this Court, could abdicate the most basic function of filing the petition on time,” wrote Timothy J. Corrigan, the district court judge in the first two cases.
“I would be remiss if I did not share my deep concern that in these cases our federal system of justice fell short in the very situation where the stakes could not be higher.”
Corrigan’s frustration has echoed in a series of cases that have come to the federal courts since 1996, when President Bill Clinton endorsed a Republican plan to limit death-penalty appeals by setting a one-year deadline for the filing of habeas corpus petitions.
Those federal appeals, which typically come after claims in state courts have been exhausted, allow inmates to seek a final review of their convictions on grounds ranging from juror misconduct to the suppression of evidence by prosecutors.
Yet an investigation by The Marshall Project has found that in at least 80 capital cases in which lawyers have missed the deadline — sometimes through remarkable incompetence or neglect — it is almost always the prisoner alone who suffers the consequences.
Among the dozens of attorneys who have borne some responsibility for those mistakes, only one has been sanctioned for missing the deadline by a professional disciplinary body, the investigation found. And that attorney was given a simple censure, one of the profession’s lowest forms of punishment.
The lack of oversight or accountability has left many of the lawyers who missed the habeas deadlines free to seek appointment by the federal courts to new death-penalty appeals. When Bonner, the Florida attorney, argued before the Supreme Court, the justices said nothing of her being a repeat offender, if they even knew.
The absence of any systematic monitoring or punishment for mistakes on which their clients’ lives might depend underscores the uneven quality of publicly funded legal aid to death-row prisoners who turn to the federal courts.
In 17 of the country’s 94 federal judicial districts, special teams of government-funded lawyers and investigators monitor the capital cases coming out of their state courts to make sure deadlines are recognized and met. In some other districts, the federal defender’s office helps to evaluate the private attorneys who might be appointed to handle those appeals.
But for lawyers outside the government, the work is difficult and often unpopular, with limited funds available for investigators and experts. And in most districts, where judges screen candidates themselves or with the help of review committees, the quality of legal counsel varies widely.
Federal judges sometimes appoint lawyers “who are not good enough to handle these cases,” says habeas expert Randy A. Hertz, a professor at the New York University School of Law.
However well-meaning, such lawyers may be inexperienced or overmatched. Some may know the judges who make the appointments, but not the voluminous and complex law surrounding habeas corpus. Others have been found to have mental-health problems, substance-abuse issues or other complications that were missed in their screening.
In about one-third of the 80 cases where habeas deadlines were missed, the federal courts eventually allowed prisoners to go forward with their appeals, often because their attorneys’ failures went beyond what the courts would categorize as mere negligence.
Yet even when attorneys have been chastised in federal court rulings for work described as “inexcusable” or “deeply unprofessional,” they have managed to evade any discipline from bar associations or other agencies. One lawyer castigated by the U.S. Supreme Court for “serious instances of attorney misconduct” still has an unblemished disciplinary record.
A prominent death-penalty defense lawyer, Gretchen Engel of the Center for Death Penalty Litigation in North Carolina, offered a simple reason for the discrepancy between the magnitude of some lawyers’ mistakes and the paltry consequences they face: “The people who were hurt by it are prisoners.”
‘A terrible mistake’
The challenge of finding capable, experienced attorneys to handle the habeas caseload has been especially notable in Florida, which has accounted for 37 of the 80 cases with missed deadlines.
When the state set up a registry of private attorneys in 1998 to help handle capital appeals, it enlisted some lawyers who had little or no idea how to do the work. While these attorneys were contracted to handle appeals in the state courts, many carried their cases on to the final stage of federal habeas corpus, even though the legal issues there could be even more complicated.
One of the attorneys on the registry, Jefferson Morrow, later told a federal judge that he had taken the case of a death-row inmate, Floyd Damren, “because somebody had to.”
Morrow was 208 days late in filing his habeas petition. When pressed for an explanation in court, he said he was inexperienced in habeas law, sent a petition to the wrong court and was never able to determine the deadline in the first place.
“I thought I had enough time,” he said. “I know that sounds stupid. But I thought I had — I thought there was enough time.”
The federal judge called Morrow’s work “grossly negligent.” Had he “conducted rudimentary legal research,” the judge wrote, “he could have ascertained the limitations period.”
A year after Morrow testified to missing the deadline, he was elected a trial court judge in Jacksonville, Fla.
Another attorney on the registry, Stuart Mishkin, represented Ronnie Johnson, who had been condemned in two separate cases. Mishkin handled both — and mishandled both, failing to meet either deadline.
“I knew it was specialized, but I did not know to what extent,” Mishkin said of the post-conviction appeals process in an interview with the St. Petersburg Times in 2000. “It was a terrible mistake for me to get involved.”
Mishkin eventually was suspended by the Florida bar for 90 days, though not for his missteps in the capital cases. Other, paying clients had accused him of missing court hearings, failing to file motions and neglecting to keep them informed. When Mishkin failed to respond to their bar complaints in a timely fashion, he was suspended.
Both Morrow and Mishkin have since died.
Despite the early problems with the state registry, Florida’s governor at the time, Jeb Bush, pushed in 2003 to close a state death-penalty appeals office and replace it entirely with registry lawyers.
The office, called the Capital Collateral Regional Counsel, was targeted by Republican legislators mainly because it was seen as dragging out death-penalty appeals at public expense. The agency’s lawyers were handling about 85 percent of the state’s death-penalty cases and had won the exoneration of four death-row inmates over the previous four years.
Opponents of the Bush plan argued that the registry would not be able to find enough competent attorneys, and that it would not be able to adequately supervise those whom it hired. Instead of closing the whole agency, the state in 2003 shut down just the northern regional office. But that experiment did not fare well, leading the legislature to reopen the office last year.
Lack of action
In extreme cases, federal judges may suspend incompetent or unethical lawyers from practicing in their districts. But the primary instruments for lawyer oversight and discipline are state bar associations.
In North Carolina, for instance, the state bar will investigate if it becomes aware of a judicial order suggesting attorney misconduct in a case. “However,” the bar counsel, Katherine Jean, stated in an e-mail, the bar’s grievance committee “cannot review the hundreds of thousands of court orders entered in the state and federal courts each year to see whether they might contain such information.”
The kinds of orders that get entered include one addressing the work of two Raleigh lawyers, Wayne B. Eads and Mark A. Perry. They were appointed to handle the capital appeal for Elton O. McLaughlin, who was convicted in 1984 of killing a man, his wife and a 4-year-old child in a murder-for-hire scheme.
In reviewing the lawyers’ failure to file McLaughlin’s habeas petition on time, a federal district judge, Terrence W. Boyle, noted in 2000 that they had not taken even “basic, preliminary steps” before the deadline came and went. They had not gathered the complete trial transcript or met with McLaughlin’s trial lawyer; other lawyers had telephoned them to warn of the approaching deadline, but Eads and Perry hadn’t returned their calls.
The two lawyers “failed to take any action at all,” the judge wrote. “The behavior of Eads and Perry in this case is neither ‘innocent’ nor ‘garden variety’ and it is certainly not excusable.”
So extreme were the attorneys’ failures that the judge waived the deadline. McLaughlin received new attorneys and was ultimately spared the death penalty when a court concluded he was mentally retarded.
State bar officials would not disclose whether they ever examined Eads’s and Perry’s work on the case, but neither lawyer was ever sanctioned. Perry later ran for a county judgeship and lost. Eads said in an interview that he had been diagnosed with cancer not long after taking the McLaughlin case, of which he has “very little memory.”
“That was a tough period for me, but I came through it fine, eventually,” he said. (Perry did not return calls asking for comment.)
When attorneys in some of the 80 missed-deadline cases have gotten into trouble, it has almost always been for mistakes they made in other, non-capital cases. A North Carolina attorney was disbarred for misappropriating the trust funds of a client. A lawyer in Florida failed to show up for a crucial pretrial conference in a lawsuit against the Boy Scouts; he was later suspended, and eventually disbarred.
In disciplinary matters involving other clients, at least five attorneys in these cases were sanctioned for taking too long to respond to a bar complaint — a deadline involving their law license, not a client’s life.
‘Chasing after’ answers
In December 2007, a federal judge in Jacksonville held oral arguments in three capital cases.
The judge, Timothy Corrigan, who was appointed in 2002 by President George W. Bush, pulled the cases together because they all raised the same issue: what to do about lawyers’ failure to file their clients’ habeas petitions on time. In two of the cases, the lawyer who filed late was Mary Bonner.
Corrigan seemed to be in disbelief at what had transpired.
Both of Bonner’s clients, William Gregory Thomas and Mark Asay, had directed her to file their habeas appeals before the deadline. Thomas would testify that he had completed a petition on his own, signed it and given it to her. Asay, convicted of a 1987 double murder while on parole, would say he had urged Bonner to abandon an argument she had come up with for why he had more time. “I had days left to file. And I wanted Ms. Bonner to file,” he would later testify.
But Bonner did not file either petition in time.
“They knew what they were talking about and the lawyers didn’t, right?” Corrigan asked a lawyer for the Florida attorney general’s office who was arguing that the deadlines should be enforced anyway.
In Thomas’s case, Corrigan had appointed Bonner after she had filed an emergency request to represent him in the habeas appeal. At that point, Thomas, who had been convicted of murdering his wife in 1991 to avoid making payments in their pending divorce, was only three months from his deadline to file.
Corrigan gave Bonner the case with the expectation that she would move as quickly as possible.
Instead, he heard nothing. He was forced to go “chasing after” Bonner for answers, the judge said, and to order an update on the status of the case. Even then, she missed the filing deadline by nine months.
“How is that not either my fault . . . for not appointing a lawyer that was going to file on time, or why is it not Ms. Bonner’s fault?” Corrigan asked the state’s attorney.
“That’s just tough luck?” Corrigan asked.
“That’s the statutes,” the state attorney said. “I’m not saying that. Congress did.”
Bonner told the judge she was “a very, very diligent practitioner” who had run into some hard times. Her husband of 40 years had suffered a stroke and had open-heart surgery, she said. She was hospitalized for a problem with her blood, and also suffered a head injury and broken arm.
“Being a tough old Irish woman, I have believed all along that I could carry what had to be carried and do what had to be done,” she told Corrigan.
“I don’t know what to tell you, other than, ‘I apologize,’ ” she said. “I am not a bad person.”
At another hearing, in 2008, Bonner said she had somehow become confused about the deadline in Thomas’s case. She was at a loss to explain what had happened, in part because many of her case files had been destroyed in a hurricane. “I just don’t know,” she said.
When Corrigan ruled in these cases in 2009, his language was unsparing.
“The terms ‘bad faith’ or ‘dishonesty’ capture Ms. Bonner’s conduct,” he wrote of her work for Asay. In the Thomas case, he wrote, Bonner “engaged in an egregious pattern of misfeasance.”
Bonner’s failures were sufficiently grave that Corrigan granted both prisoners “equitable tolling,” a judicial remedy allowing the missed deadlines to be forgiven.
Bonner was asked to comment for this story in e-mail and telephone messages and letters sent to her office and home addresses in Fort Lauderdale. She did not reply to any of them, and no one answered the door when a reporter made multiple visits to the two locations.
In 2007 — four years after Bonner missed the deadline in one capital case, and two years after she missed deadlines in two other capital cases — she was appointed to represent another death-row inmate, Leonardo Franqui.
This time, Bonner filed Franqui’s petition on time. But a federal appeals court judge still denounced the quality of her work, saying it reflected either “something more than negligence” or “a level of gee-golly, aw-shucks lawyering that is completely unacceptable in capital cases.”
In the three cases where Bonner missed the habeas deadline, there is no record that she ever submitted a request to be paid. In yet another case, in which a habeas deadline had been missed by an earlier attorney, she did seek payment. But that request, which was supposed to be filed with the court within 45 days after the case closed, arrived four years late.
Bonner blamed the delay on a heavy workload and health problems that included four heart surgeries. The judge denied her request, noting a “pattern of untimely pleadings” and “the use of the same or similar health problems and excuses.”
In the 80 capital cases with a missed deadline, the inmate who missed the mark by the most was Paul Anthony Brown, whose petition was more than 11 years late. Bonner shows up in that case, too. Brown’s federal deadline had already passed when Bonner — who was one of Florida’s private registry attorneys — was appointed in the state courts to work on a post-conviction motion.
Court records show that almost seven years passed before she filed the pleading. “Bonner apologized to Brown for the delays and explained that she was hampered by health problems,” a court order says.
Despite the criticism she has weathered, Bonner has a spotless record with the Florida Bar. She is still eligible to practice in the federal judicial district where she missed the three deadlines. And she remains on the Florida registry of attorneys for capital appeals, where she has asked to be considered for appointment in every circuit in the state.
Bonner’s missed deadlines do not appear to have registered with the Supreme Court, where in 2006 she argued a question of timing in federal habeas cases in Lawrence v. Florida.
For the court’s purposes, Bonner had put forward the right case at the right time: One that raised a somewhat narrow but important technical question on which lower courts had split.
Bonner commemorated her Supreme Court appearance by commissioning a painting of the event. The work, in watercolor with gouache highlighting, shows her standing at the lectern in a navy blue dress and a strand of pearls, holding forth as the nine justices listen thoughtfully and courtroom illustrators sketch her portrait.
Bonner and her client lost the decision by a vote of 5 to 4.
Of the 80 federal habeas cases noted here, the one attorney held accountable for the missed deadline did more work for less money than many of his counterparts.
Earle Schwarz, an attorney in Memphis, declined to comment for this story. But his account can be pieced together from a letter he wrote to the Board of Professional Responsibility of the Tennessee Supreme Court, along with other records in the board’s file.
A specialist in commercial law and alternative dispute resolution, Schwarz’s typical clients included Blue Cross Blue Shield and BellSouth. But in 1998 he agreed to handle a capital appeal — his first — and to do the work free of charge. He hoped for a case in his own state but was persuaded that the need for volunteer counsel was greatest in Alabama.
Schwarz took the case of an Alabama death-row inmate named Robin Myers, who had been convicted of fatally stabbing a woman and stealing her VCR. He picked up the case in the state post-conviction phase, the second tier in the three-tier appeals process.
For more than four years he juggled the appeal with his commercial law practice. Schwarz and his legal team went back and forth to Alabama, to interview “countless witnesses and potential witnesses,” Myers’s trial attorney and investigator, and Myers himself, according to Schwarz’s letter to the board. Together they logged more than 1,200 hours of work on the case. Had the hours been billed, the total would have come to about $145,000 at the law firm’s going rates.
While representing Myers, Schwarz changed firms. His old firm had an “enlightened policy” concerning pro bono work and offered support, according to Schwarz’s letter. His new firm “did not have a similar commitment.”
He made mistakes, Schwarz wrote. He was “mortified” to discover he had missed an important deadline in the state courts, owing to his lack of familiarity with the local rules: Alabama had a 14-day filing requirement while in Tennessee the period was 60 days. Another mistake — perhaps his biggest — was “not remembering” there was a one-year statute of limitations on the filing of Myers’s federal appeal.
When Myers lost his state appeal, Schwarz didn’t notify his client, nor did he formally withdraw from the case. While Schwarz did nothing, the filing deadline for Myers’s federal habeas petition came and went.
At the request of Myers’s subsequent attorney, Schwarz later signed a declaration owning up to his mistakes. That declaration then became the source of a disciplinary complaint.
Complaints filed against attorneys by inmates often go nowhere. But the complaint against Schwarz came from the federal magistrate assigned to Myers’s appeal.
In 2005, Tennessee’s disciplinary board issued a public censure, declaring Schwarz’s conduct to be improper but imposing no restrictions on his practice.
Myers is still on death row. Earlier this year, his execution was indefinitely postponed because Alabama ran out of drugs used in lethal injection. But two months ago the state adopted a new drug protocol and resumed its request for execution dates, including one for Myers.
Chance for reform
The rash of missed deadlines has become a source of frustration for some federal judges, and a subject of some concern in the Justice Department.
In an interview, the outgoing United States attorney general, Eric H. Holder Jr., said that before he relinquishes his post, he will deliver a report to President Obama on problems with the death penalty around the country, and that the department will consider the issue of missed deadlines in the filing of habeas petitions.
“When you’re talking about the state taking someone’s life, there has to be a great deal of flexibility within the system to deal with things like deadlines,” Holder said. “If you rely on process to deny what could be a substantive claim, I worry about where that will lead us.”
Rosemary Barkett — a former chief justice of the Florida Supreme Court who later sat on the U.S. Court of Appeals for the 11th Circuit — called the courts’ practice of stripping inmates of their habeas rights because of the lawyers’ failures to file on time both “unconstitutional and immoral.”
Earlier this year, after confronting another case where the deadline was overshot, the Eleventh Circuit authorized the establishment of a new unit that would handle habeas appeals in the office of the Federal Defender for the Northern District of Florida. That is the same region where the state of Florida had disbanded its own capital-defense office to rely on the registry of private attorneys.
The Capital Habeas Units of the federal defenders’ offices, which now operate in 17 judicial districts spread across 12 states, specialize in habeas corpus and take pains to monitor the progress of death-penalty cases through their state courts.
Dale Baich, an assistant federal public defender in Arizona, says his unit keeps track of legal pleadings and filing dates for each of the jurisdiction’s condemned inmates, checking electronic dockets and calling clerks’ offices if necessary.
When the unit gets a case, it is assigned a team usually consisting of two lawyers, two investigators, a paralegal and a legal assistant. A single petition can generate that much work, he said.
The federal defenders in the northern district of Florida are now hiring for their new capital habeas unit.