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本帖最后由 满仓 于 2014-11-24 08:57 编辑
【中文标题】律师之误，司法之殇
【原文标题】When lawyers stumble, only their clients fall
【登载媒体】华盛顿邮报
【原文作者】Ken Armstrong
【原文链接】http://www.washingtonpost.com/sf/national/2014/11/16/when-lawyers-stumble-only-their-clients-fall/
在至少80个死刑案件中，律师错过了上诉的最后期限，承担这些严重后果的往往是犯人本人。
2006年秋天，一位名叫玛丽•凯瑟琳•邦纳的律师前往美国最高法院，为一名死囚犯辩护。犯人的最后一次上诉申请刚刚被驳回，因为他的前任律师错过了提起诉讼的最后期限。邦纳对法官说：“你们知道，律师总是会在最后一分钟提出申请。”
邦纳与一些政府机构进行了交涉。作为迈阿密大学法学院的优秀毕业生，她曾经为一些社会高层人士辩护，还处理过复杂的国际法律纠纷，因此被准许在联邦法庭中执业。
但是，就在她的最高法院之行前一个月，邦纳遭到了一名联邦法官的训斥，原因是在她负责的另外两个死刑案件上，邦纳都错过了提起诉讼的最后期限。其中一个晚了210天，另外一个晚了278天。在今年年初的第三个联邦案件中，她提出的人身保护令申请比规定的最后期限晚了312天。
针对前两个案件，地区法院法官蒂莫西•J•科里甘写道：“我很难理解，一个主动与法院预约好时间的律师，怎么会放弃诉讼最后期限这条最基本的原则？这些案件所反映出，我们的联邦司法制度似乎无法应对那些风险极高的法律问题。我觉得自己必须要表达出这类担忧，否则就是我的失职。”
科里甘所表现出的担忧，在1996年之后的一系列案件上都曾经出现过。当时，比尔•克林顿总统签署了一项共和党提案，为提交人身保护令设定一年的期限，来限制死刑犯上诉的数量。这些联邦上诉的申请，往往出现在州法院中所有的脱罪理由都被驳回之后，罪犯有最后一次机会，以包括陪审员不尽职和检方私藏证据等在内的各种理由，重新审理定罪和量刑。
但是，马歇尔项目所进行的一项调查发现，至少在80个死刑案件中，律师错过了提交上诉的最后期限——部分原因是律师的无能或疏忽。这些错误所导致的后果全部由罪犯承担。调查发现，在数十名需要为这些错误承担责任的律师中，只有一个人因为错过最后期限而受到惩罚。这名律师被简单地批评了一下，这是律师行业中最轻微的惩罚方式之一。行业缺少监管，加上缺乏责任心的从业人员，导致很多错过最后期限的律师随心所欲地与联邦法庭预约申请新的死刑上诉机会。当那位佛罗里达律师邦纳在最高法院前陈词时，法官丝毫没有提及她从前的累犯行为，或许他们根本就不知道。
对于这类与委托人性命有关的错误缺乏系统的监管和惩罚，凸显出那些由政府出资提供法律援助的死囚犯们，在联邦法庭中得到的服务质量参差不平的现象。在国内94个司法辖区中，有17个设立了政府出资组建的特别律师调查团队，他们负责监控本辖区法院审理的案件，确保代理律师了解每个案件的截止期。在其它司法辖区，联邦辩护办公室帮助评估有可能被委派处理此类案件的私人律师。但是对于那些不为政府效力的律师来说，这样的工作既复杂又没有油水，因为用来调查和聘请专家的资金实在少得可怜。在大部分司法辖区，法院根据评估委员会的意见，或者凭借自己的经验来筛选律师，因此出现的法律服务质量千差万别。
纽约大学法学院教授、保护令专家兰迪•A•赫兹说，联邦法官有时候会指派“根本不够资历处理此类案件”的律师。在这种类似志愿的服务中，有的律师难以胜任，有的律师被大材小用，有的或许仅仅是认识主审法官，但是对有关人身保护权的庞杂法律知识一窍不通。还有一些被发现存在心理问题、滥用药物现象等筛选时被忽略的问题。在80个超过保护令最后期限的案例中，大约有三分之一的犯人最终被准许继续提出申请，原因大多是他们的律师所犯的错误已经超过了法院所认为的“疏忽”的范畴。
但即使那些犯下“不可原谅”或者“极为不职业”的错误的律师被联邦法院痛责，他们几乎没有受到来自律师执业协会和其它机构的任何惩罚。一个被美国最高法院斥责为“严重的玩忽职守”的律师，惩处记录仍然是一片空白。北卡罗来纳州死刑诉讼中心的著名死刑辩护律师格雷琴•恩戈尔，对于律师所犯错误的严重程度与他们所承担的后果之间的不平衡给出了一个简单的解释：“受到这些错误伤害的只不过是犯人。”
“一个严重的错误”
找到一个有能力、有经验的律师来处理人身保护令在佛罗里达尤其困难。80个错过最后期限的案件中有37个出现在佛罗里达。这个州在1998年开始要求私人律师登记处理死刑上诉申请，之后登记的律师中有一些人根本不知道如何处理这些案件。尽管这些律师与州法院达成协议代为提交申请，但往往都会拖到保护令有效期的最后一刻，有些人接手的案件内容极为复杂。
一位登记在册的律师杰佛逊•马洛，与一位联邦法官谈到他所代理的佛洛依德•达姆伦死刑犯案件时说：“这种事情总要有人做。”马洛提交人身保护令的时间比最后期限晚了208天。在法庭上被要求给出解释时，他说他没有处理保护令案件的经验，所以把申请提交给了错误的法庭，而且从一开始就不知道最后期限是什么时候。他说：“我以为还有足够的时间。我知道这听起来很愚蠢，但我的确以为……我还有足够的时间。”联邦法官说马洛的工作存在“严重的疏忽”，如果他“做一些基本的法律研究，可以轻松查明最后期限”。
马洛声明错过最后期限一年之后，他被选为佛罗里达州杰克逊维尔的庭审法官。
另一位登记在册的律师斯图尔特•米什金代理被控两项罪名的罗尼•约翰逊。他同时代理上诉这两项罪名，但都错过了最后期限。
米什金在2000年接受《圣彼得堡时报》采访时，谈到宣判后的上诉事件：“我知道这是非常专业的工作，但不了解要专业到什么程度。这对我来说是一个及其糟糕的错误。”
米什金最终被佛罗里达暂停执业90天，但原因不是处理死刑案件时的过失。一些支付佣金的委托人说他不出席法院的听证会、未能及时提交动议，以及不告知相关信息。在未能及时回应这些抱怨之后，米什金被暂停执业。
马洛和米什金都已经过世。
尽管注册制度的早期出现了一些问题，但佛罗里达州长杰布•布什在2003年关闭了州立死刑上诉办公室，完全用注册律师来取代。这个名为“资本区域担保顾问”的办公室曾经遭到共和党立法委员攻击，因为它被视为用公共开支排挤死刑上诉申请。这家机构的律师处理州内85％的死刑案件，在过去4年中，成功地为4名进入死囚区的罪犯脱罪。反对布什计划的人说，注册制度不能确保找到足够专业的律师，也没有足够的监控机制确保律师忠实履职。2003年，佛罗里达没有关闭整个机构，而仅仅是关闭了北部区域办公室。但试验的效果并不理想，立法委在去年不得不重新开放这个办公室。
缺少行动
在极端情况下，联邦法官可以让那些不称职、不道德的律师在司法辖区内暂停执业，但是对于律师的失职和惩戒工作，主要还是由州律师协会负责。例如在北卡罗来纳州，如果发现有律师干扰司法程序或者在处理案件时有错误行为的迹象，州律师协会会进行调查。协会顾问凯瑟琳•简在电子邮件中说，“但是”，协会的投诉处理小组“无法逐一了解每年在州法院和联邦法院中数十万次庭审的秩序，因此所谓的迹象很难获得”。
其中一个得到投诉处理小组关注的事件是有关罗利市的两位律师——韦恩•B•伊兹和马克•A•佩里。他们被委任处理艾尔顿•O•麦克劳林的死刑上诉申请，这个人在1984年被宣判，罪名是雇凶杀害一个男人、他的妻子和一名4岁的儿童。
两位律师未能按时提交人身保护令的申请。一名联邦地区法官特伦斯•W•波伊尔在2000年回顾这件事的时候提到，他们在最后时限到来之前，以及之后，根本没有采取“任何最基本、最初步的行动”。他们没有收集完整的庭审记录，也没有与麦克劳林的庭审律师会面。其他律师打电话给他们，提醒即将到来的最后期限，但是伊兹和佩里根本没有理会。波伊尔写道，这两位律师“没有采取任何行动。伊兹和佩里在这个案件中的行为既非‘无知’也不‘常见’，完全不可原谅。”律师极端不寻常的错误让法官不得不推迟了最后期限。麦克劳林被安排给新的律师，最终因为一家法庭确认他的心智存在问题而被免除死刑。
州律师协会拒绝透露他们是否调查过伊兹和佩里在这起案件中的行为，但是两位律师都未曾遭受任何惩罚。佩里后来曾经参选县法官的职位，但以失败告终。伊兹在一次采访中说，他在接手麦克劳林案件之后不久被诊断出患有癌症，关于案件他“已经没有印象了”。他说：“那是一段艰难的时期，但我最终战胜了自己。”（佩里对此事没有发表任何看法。）
参与这80个错过最后期限案件的部分律师的确遇到了一些麻烦，但大部分都是因为他们在处理其它非死刑案件时犯了错误。一位北卡罗来纳州律师因为不当使用委托人的信托基金而被吊销执业资格。一位佛罗里达州律师在一个起诉童子军案件的关键预审会议上没有出席，从而被暂停执业，最终被吊销律师资格。在界内惩戒问题上，至少5位律师因未能及时回应律师协会的质询而遭到批评。但是这只会影响他们的律师资格证，而无法改变委托人的命运。
“追求”答案
2007年12月，杰克逊维尔的一名联邦法官为三起死刑案件举办了一场口头辩论。
2002年得到乔治•W•布什总统任命的法官蒂莫西•科里甘把相关案件整合到一起，因为它们都存在同样的问题：律师未能及时提交委托人的人身保护令申请。其中两起案件的律师是玛丽•邦纳。科里甘似乎对目前掌握的事实有所怀疑。
邦纳的两个委托人威廉•乔治•托马斯和马克•阿萨都曾经提醒她在最后期限之前提交人身保护令的申请。托马斯作证说，他已经完成了自己的申请表格，并且签字，给到邦纳。在1987年被判两项谋杀罪名成立的阿萨说，他曾敦促邦纳放弃自认为还有更多时间的想法，“距离最后期限只有几天了，我让邦纳女士现在就提交。”
但是邦纳在最后期限之前没能提交任何一份申请。
科里甘向一位佛罗里达检察官办公室的律师问到：“他们知道自己在说什么，但是律师不知道，对吗？”这位律师坚持认为最后期限不能妥协。
在托马斯的案件中，科里甘指派邦纳担任律师，因为她主动提出申请要为托马斯提交人身保护令。当时，托马斯被认定在1991年为逃避离婚补偿金而杀害妻子，距离提交人身保护令的最后期限只有三个月时间。
科里甘把案件交给邦纳，期望她可以尽快采取行动。但是就像石沉大海，他不得不“追着”邦纳要结果，甚至命令律师报告案件的进展。即使如此，她还是晚了9个月才提交申请。
科里甘问检察官办公室的律师：“这是不是我的错误——没有指派一名可以及时提交申请的律师？为什么不是邦纳女士的错误？是我的运气不好吗？”
律师说：“这就是规定，不是我说的，是国会颁布的。”
邦纳对法官说，她是“一个非常非常勤奋的律师”，但经历了一些生活的困境。她40多岁的丈夫中风，并且做了开胸手术。由于血液问题，她住院治疗一段时间。期间头部还曾经受伤，手臂也骨折了。她说：“作为一个坚强的爱尔兰女人，我一直相信我可以尽职尽责。我不知道该说些什么，除了‘对不起’。我不是一个坏人。”
在2008年的另一次听证会上，邦纳说她完全不知道错过了托马斯案件的最后期限。解释原因时她显得很茫然，部分原因在于她的很多案件资料在飓风期间丢失了。她说：“我就是不知道。”
科里甘在2009年裁决这两起案件时使用的措辞毫不留情。在托马斯的案件中，他写道：“邦纳女士的行为完全可以用‘奸诈’、‘不诚实’来形容，这是非常糟糕的不法行为。”邦纳所犯错误的严重程度足以让科里甘为两个犯人发布“衡平中止”——这种司法补救措施可以让错过最后期限的行为依然有效。
我们设法通过给他的办公室和家庭地址发送电子邮件、电话留言和信件的方式请她对此发表看法，但都没有得到回复。记者多次造访以上两个地址，但敲门都没有得到回应。
2007年——邦纳错过一个死刑案件申请的最后期限4年之后，以及她错过另外两个死刑案件申请的最后期限2年之后——她被委任代理另外一个死囚犯人莱昂纳多•弗兰奎。这一次邦纳及时提交了申请，但是一位联邦上诉法官依然批评她的工作质量，说她“不仅仅是玩忽职守，而且把律师工作搞得一塌糊涂。对于死刑案件，完全不能接受。”
在邦纳错过保护令最后期限的三个案件中，没有记录显示她曾经提交过付款申请。但是在另一个前任律师错过最后期限的案件中，她却提出了付款申请。但是这份本应在案件结束45天之内提交给法庭的文件，晚到了4年。邦纳把原因归结为健康因素，包括4次心脏手术。法官驳回了她的申请，说：“完全没有理由的申请，依然在用同样的健康问题找借口。”在80个错过最后期限的案件中，被延误最长时间的犯人是保罗•安东尼•布朗，他的上诉申请被延误了11年。这个案件的代理律师依然是邦纳。当作为佛罗里达私人注册律师的邦纳被法庭指派处理审判后动议适宜时，布朗的联邦法庭最后期限已经过期了。法庭记录显示，她几乎花了7年的时间才正式提交申请。一份法庭报告记载：“邦纳向布朗道歉，并解释延误的原因是健康问题。”
尽管遭受了无数的批评，邦纳在佛罗里达律师协会中的执业记录几乎完美无瑕。她依然有资格在错过了三个案件最后期限的联邦司法辖区中执业，依然在处理死刑上诉案件的佛罗里达注册律师名单中，她甚至还主动申请在州巡回法院中任职。
邦纳错过最后期限的行为似乎并未引起最高法院的注意，2006年，她在最高法院审理“劳伦斯诉佛罗里达州”的案件中陈述对联邦人身保护令的时间安排的观点。从法院的角度来看，邦纳在正确的时间提出了一个正确的问题：一个被下层法院忽略掉的细节问题。邦纳请人绘制了一幅画，借此表达自己在最高法院中的表现。在这幅水彩画中，她身着蓝色职业套装，戴着一串项链，站在讲台上侃侃而谈。九名大法官作沉思状，法庭速记员正在绘制她的肖像。
大法官以5比4的投票否决了邦纳和她的委托人的申请。
面对现实
在我们提到的80个涉及人身保护令的案件中，有一位律师也错过了最后期限，但是与其他律师相比，他做了最多的工作，取得的报酬最少。孟菲斯律师厄尔•施瓦茨拒绝对此发表评论，但是我们可以根据他写给田纳西州最高法院专业责任委员会的一封信，以及这个委员会中保存的其它记录中，拼凑出他的故事。
作为一名商业法律和非诉讼纠纷解决机制的专业律师，施瓦茨的客户包括蓝十字蓝盾保险公司和贝尔南方电信公司。但是在1998年，他决定接手第一个死刑上诉案件，不收取任何费用。他本来打算处理本州内的一个案件，但是被告知亚拉巴马州对志愿律师的需求量最大。于是施瓦茨接手了亚拉巴马州一位死囚犯罗宾•梅耶斯的案件，这个人被控刺死一位妇女，并偷走了她的录像机。他接手时，案件已经宣判，正处于三级上诉程序中的第二级。
4年多的时间里，他努力利用自己的商业法律经验应付上诉的流程。施瓦茨和他的律师团队往返于孟菲斯和亚拉巴马州，施瓦茨致委员会的信中写到，与“无数证人和潜在证人”、梅耶斯的代理律师、调查员和梅耶斯本人面谈。他们为此案件共投入了1200个小时，如果这是收费的服务，按照这家事务所的收费标准折算，将高达14.5万美元。
在代理梅耶斯期间，施瓦茨换了一家律师事务所。他的老东家有一项“开明政策”，鼓励律师提供无偿服务，并提供支持。但是新公司“没有类似的政策”。
施瓦茨在信中提到他犯了一些错误。他“惭愧地”发现自己错过了州法院一个重要的截止时间，因为他对当地的法规缺乏了解：亚拉巴马州规定的申请期限是14天，而田纳西州的规定是60天。另外一个错误——或许也是最大的错误——是，“不记得”提交梅耶斯的联邦上诉申请有一年的法定失效。在梅耶斯上诉失败之后，施瓦茨没有通知他的委托人，也没有正式从这件案子中撤出。在施瓦茨无所事事的过程中，人身保护令的最后期限悄悄地过去了。应梅耶斯后来聘请的律师的要求，施瓦茨签署了一份声明，坦承自己的错误。这份声明后来成为惩戒投诉的主要信息来源。
犯人对律师的投诉往往会无果而终，但是施瓦茨收到的投诉来自于负责梅耶斯上诉的联邦行政司法官。2005年，田纳西州纪律检查委员会发表了一份公开谴责声明，宣布施瓦茨行为不当，但是没有对他的执业行为做出任何限制。
梅耶斯依然被关在死囚牢。今年年初，他的行刑日期被无限期推迟，因为亚拉巴马州库存的死刑注射药物已经用完。但是两个月之后，这个州开始使用一种新型的药物，并重新排定了犯人行刑的日期，这其中就包括梅耶斯。
改变的机会
错过最后期限的行为已经让一些联邦法官愁眉不展，也是司法部决心要整治的一个问题。美国司法部长艾瑞克•H•霍尔德在接受采访时说，在他退休之前，他会向奥巴马总统提交一份报告，详述全国范围内死刑判决中存在的问题。司法部将会考虑错过提交人身保护令最后期限的问题。他说：“我们现在谈到的是有关剥夺一个人的生命的问题，总会有办法解决制度中类似最后期限这样的问题。如果因为程序的原因让我们忽略掉审判中存在的漏洞，我很担心这会造成怎样的后果。”
佛罗里达州最高法院的前首席大法官、美国第十一巡回上诉法院法官罗斯玛丽•巴科特，在提到法院因为律师的错误而剥夺死刑犯人身保护令权利的问题时，说这种做法“既不合宪又不道德”。
今年年初，在看到又有一个案件的最后期限被耽搁了之后，第十一巡回法院授权成立了一个新的机构，专门处理佛罗里达州北部司法辖区公派辩护人办公室的人身保护令申请工作。正是在这个司法辖区里，佛罗里达州曾经抛弃了州立的死刑辩护办公室，用私人律师的注册制度来取代。公派辩护人办公室的死刑人身保护令小组已经在12个州的17个司法辖区中成立，专门处理人身保护令的申请工作。他们通过州法院审理的死刑案件，逐一梳理人身保护令的处理进程。
亚利桑那州公派辩护人办公室的一位助理达尔•巴荷说，他的团队跟踪司法辖区内每一个死刑犯的法律申请提交日期，检查电子庭审记录，有必要的情况下会直接致电书记办公室。一旦他们接到一个案件，一个由两位律师、两位调查员、一位律师助理和一位法律助手组成的小组会专门处理。人们想不到一个简单的上诉申请会涉及那么多的工作。
佛罗里达州北部司法辖区公派辩护人办公室正在为新的死刑人身保护令工作招聘人手。
网友评论：
MMuffley：
在任何一个第一世界国家，这都是一个丑闻，立即会被曝光并得到改正。但是在美国，我们对“正义”的司法系统不正义地对待坏人丝毫不觉得有任何问题。真是“例外论”丑陋的一面。
Californiawalrus：
天啊，你的生活不错了。你真的太天真的，竟然相信邮报的报道，还真的以为世界上有比美国更好的地方。走吧！
Maxjl：
我的生活并非安稳无忧。我曾环游世界，去过很多极为贫困的地方。是的，他们很多地方做得都比美国好。这就是你的回答吗？不去想怎样改进我们的问题，就拍拍屁股走人？
Looking_in：
这就是爱国主义傻瓜在看到别人比我们做得更好时的标准回答：“去那里生活吧。”
Californiawalrus：
生活不易。
WhiskeyTangoFoxtrot1：
深刻！
WaPoReader1961：
这些死囚犯的身后都是累累的罪行，所以他们绝不是“无辜的受害者”。
FLWin：
你看到过这些罪犯所有的犯罪记录吗？我猜没有。
T.j. Kennedy
没人说他们是无辜的，但是他们应当忠实地遵循司法程序。
Tdbrew：
如果你没有犯下谋杀等重罪，你根本不会把自己的命运托付给一个不称职的律师。
Bill7547：
不一定，你显然没看到一些无辜的人被定罪的新闻，多年后才洗刷罪名。在德克萨斯，他们不管你有没有犯罪，只关心判决结果。
T.j. Kennedy：
感谢Bill的提醒。截止到今天，146个人已被免罪。
Bill7547：
我们小镇里有一位警察局长被捕入狱。一个在政界交际广泛的律师，找到两个被其它警察局开除的警员，在警察局长不知情的情况下安排到这里上班。局长因为隐瞒这件事情被判有罪。这个律师竟然还为局长做辩护，他的律师费让局长倾家荡产。
iSmellLiberalFear:
这些人都不是无辜的，这让我们看到清除社会中的渣滓给我们带来了多大的麻烦。
FLWin：
你怎么知道？如果真的有无辜的人被定罪呢？以前发生过这样的事，你在主观上的否认是不合逻辑的、生硬的。
WhiskeyTangoFoxtrot1：
“这些人都不是无辜的。”听了这话，我无语了。
Skinsdude：
他们在州法院被定罪，最高法院也没有找到推翻原判的理由，所以他们不是无辜的。
T.j. Kennedy：
什么叫渣滓？
Matt Haley：
不管这些人是不是真的有罪，他们应该得到比那些律师更好的法律服务。人身保护令的提交延迟了多长时间，就应该暂停他们的执业多长时间。
Robert R. Bryan：
作为一名专业死刑诉讼律师，我知道在很多的案件中，律师的错误让犯人命悬一线。这并不是罕见的现象。
ZZammit：
“其中一个晚了210天，另外一个晚了278天。在今年年初的第三个联邦案件中，她提出的人身保护令申请比规定的最后期限晚了312天。”她明知已晚，但还是提交申请，是因为1，她可以据此来收费；2，她在面对法官时有一些借口。
Skinsdude：
可惜她在这三个案件中并没有收费。
reah1：
死刑判决中漏洞百出，就应该废除。
Maxjl：
另外一个废除死刑的原因是，我们的“司法制度”千疮百孔，尤其对那些贫穷的人。以“正义”的名义处死一个无辜的人是绝对不能原谅的。
GBrouter：
委托人总是要为律师的愚蠢和错误付出代价，没有一个律师因为自己所犯的错误而被吊销执业资格。一个律师死后进入天堂。圣彼得说：“史密斯律师，你好。”律师说：“我不能死。我刚刚42岁，我有一个漂亮的妻子、3个孩子、2个情妇、一艘漂亮的游艇和一座大房子。我怎么能死呢？”圣彼得说：“按你的律师收费计时记录来看，你已经125岁了。”
GBrouter：
据2011年的调查数据显示，美国黑人家庭的平均年收入是6314美元，白人家庭的平均年收入是110500美元。过去十年里，这个差距越来越大，现在美国的贫富差距比种族隔离期间的南非差距更大。（美国白人人均财富是黑人人均财富的18倍，南非1970年的比例是15倍。）
－与1967年相比，白人与黑人之间收入的差距增加了40％。
－黑人平均寿命比白人短5年。
－与白人学生相比，美国的黑人学生接受高等数学和科学教育的机会更少。他们被休学和开除的几率比白人学生高三倍。
－根据国家经济研究所提供的数据，20岁左右、没有告终学历的黑人在就业中遭遇了更多的歧视。70％的中年黑人男性从未读完高中。
tpaxton27：
文章中贴出了死刑犯的照片，应该把那些律师的照片也贴出来。
brian112358：
这篇文章的作者，和那些恨不得把律师都千刀万剐的读者，请记住：很多涉及死刑的法律事务都是免费的服务。他们拿不到什么钱，所以根本没有动力，而且成功的几率很低。做这些事情的律师通常——并非全部，但通常——都是出于自身的道义。如果你不给这些代理死刑犯的律师们任何动力，那么干脆把犯错误的律师装上笼车去游街吧。这么做不会有任何好处，但我想算是让你们出了一口气。
Epaminondas Vindictor：
在南方，只有制度是重要的，个人的命运不算什么。
FergusonFoont：
这篇文章的目的是什么？让辩护律师受人谴责吗？让所有的律师远离死刑案件吗？我不觉得这是一个良好的意图。
SoCalWP：
文章中提到的这些律师不需要因为输掉官司而被惩罚，他们被惩罚的原因是失职，未能履行基本的法律程序而导致委托人失去上诉的机会。不管怎么说，如果申请没有提交，或者提交得太晚而被法庭拒收，那么上诉肯定是没有获胜的机会。至于让所有的律师远离死刑案件，我觉得应该这么说，文章中提到的这些律师，不应该再让他们接手死刑上诉案件了。
Skinsdude：
SoCalWP，你看问题的角度错了。他们并没有做什么伤害到委托人的事情，如果有的话，只能说他们通过拖延提交上诉的时间来延长委托人的生命，因为他们总有理由再进行一次上诉（因为原律师办事不力）。或许他们是在钻法律的空子。
rskins09：
你说的对……你可以输掉官司，但是你的委托热必须要得到最好的服务……太多的辩护律师做不到这一点……他们唯一关心的是钱……
Skinsdude：
三重谋杀、谋杀、盗窃、雇凶杀人、绑架，天啊，《邮报》为了宣扬它的反死刑思想，真是找对了代言人。我并不支持对所有的谋杀凶手都判处死刑，但是冲进别人的家里，把人杀死？杀一个还不够，再杀一个？收钱替别人行凶？“没有记录显示她曾经提交过付款申请。”这就是问题所在，这是无偿的服务。我们还忽略了一个事实，这些人已经经过了法庭审判并且定罪，如果仅仅因为一个人即将面对死亡就假设他的上诉必须要得到批准，这等于是滥用流程。如果他们已经被定罪，那么他们就是有罪。联邦法院应当少理会这些无聊的争论。
rskins09：
多年前曾经遇到一个案子，最高法院在上诉过程中舞弊……
ReadersWhoWonderAloud：
谋杀犯没有无限上诉的权利。
Pawn moves：
“一位德克萨斯女人的四只恶犬通过篱笆下的漏洞钻到邻居院子里，咬死对方10岁的猎兔犬，反而向对方追讨100万美元赔偿。”故事里有律师、法官、法庭，我们这个国家已经失控了。http://www.foxnews.com/us/2014/11/16/texas-woman-s...
Bobjlv：
我不看福克斯新闻，但完全赞同你的看法。似乎她心理非常清楚，有钱人普遍投鼠忌器，愿意花钱免灾，因此充分利用这种心理。希望一个有良心的法官能够主持正义。
rskins09：
这好像是《法官朱丽》里的一个案件，这个节目里有很多狗咬人的案件，你可以看到朱丽三分钟就做出了决定……
8534 feet：
没有时间、没有钱、太多人了……我在想，这个国家的人口如果达到6亿会变成怎样？
dfoster2：
这些被判定有罪的无辜的人“大限已至”的时候，《邮报》在哪里？
dfoster2：
有人知道为什么《邮报》不让人们评论Peter Kassig被斩首的报道吗？
JOelschl：
并不是每一个被定罪的犯人都有足够的理由上诉。
Pjjacobs：
如果上诉中没有阐述足够的理由，案子就不应该被受理。
Sedge2：
很多职业都有其不同的专业领域。例如，一个电气工程师恐怕无法确定建筑物的地基该如何打造。但是似乎很多律师都认为，专业知识无关紧要，只需要驳斥对方的观点。他们甚至为此设定了一套制度，让他们可以用话套出他们想要的答案，而专家证人无法自由表述他们的观点，更不能提问题。他们总是高高在上，或者自以为高高在上。为什么？因为在很多人看来，律师这个职业无关对错、合法与道德，只与收费有关，似乎随便一个律师就可以处理所有类型的案件。在多次作为专家证人作证之后，我很快就发现他们问的都是同样的问题，不但试图让我落入他们的圈套，而且在拖延时间，赚取更多的律师费。至于监管，根本没人去调查律师费用的合理性。在法庭上，一定要记住法官或许也曾经是一名受过培训的律师。再想想，国会成员中有多少是律师出身？
DorothyfromColumbus：
《华盛顿邮报》试图让我们得出一下两个结论：1，所有人——尤其是那些犯罪的社会渣滓——都应当享受一个“完美”的法律服务，而不仅仅是一个律师。不管给这会给社会带来多大的负担。2，如果律师犯了错误，他/她应该和委托人一起被处死。《邮报》简直培养了一大批蠢材。
rskins09：
在某种程度上，我同意……但是，错过最后期限……“80起谋杀案件错过上诉的最后期限”。这个最后期限是最高机密吗？如果他们不知道，找人去问一问呀。律师搞不懂自己为什么遭人鄙视，看过上面的文章后，我想他们还有什么借口。就应该被吊销执业资格。
dc_wolverine：
如果你得出是这两个结论，那么或许你和我们读到的不是同一篇文章。让我逐一驳斥你的观点：1，你的前提是，这些人都是有罪的渣滓，那么我想问为什么还要花时间审判？文章和法官都强调了“称职的”律师，不是完美的律师。被判定有罪的人就真的是罪人，这种说法太过天真了，要么就是别有用心。过去几年里，我们亲眼看到至少20名身处死囚牢的犯人被免罪。2，这个结论更加令人难以置信。你看到文章哪句话、哪个段落说要处死律师？这个结论是怎么得来的？你的最后一句话其实是你自己真实的写照。你的发言是我这个星期所见到的最无知、最讨厌的内容。
Sjford：
什么叫“完美”的律师？我从这篇文章了解到的是，他们需要一个称职的律师。关注死刑案件截止时间是一个过分的要求吗？？？
Glazeman：
我们看到了另一个废除死刑的理由。
air_please：
把几个律师绑在椅子上……问题就都解决了。我猜他们和所有人一样……管它什么责任感，只要有人付给我钱。
NJBob49：
显而易见（道德）的解决方法是废除野蛮的死刑，加入现代文明的国家行列。
cupojoe1：
去和谋杀案的受害者说吧。
SeaTigr：
那么你该和那些冤死的“犯人”说什么？“哦，对不起？”20人通过DNA检测而被免罪。如果我记得没错，两个人已经服刑超过30年！
cupojoe1：
这里讨论的并不是他们是否有罪的问题。
Pjjacobs：
你没有回答问题，你该和那些冤死的“犯人”说什么？
C_R：
我们的司法体制并不以报仇为目的。受害人肯定希望他们去死，但是他们的想法并不重要。
cupojoe1：
我发现这篇文章的一个重点被忽视了：这些人犯下了令人发指的罪行。他们不是Richard Kimball和Andy DuFresne，他们是货真价实的杀人犯。
SeaTigr：
与其让无辜的人受死，还不如让有罪的人自由。
cupojoe1：
文章中并没有质疑他们所犯的罪行。
Pjjacobs：
文章根本没有讨论是否有罪的问题，只是在谈律师。
SeaTigr：
我并不想质疑他们的罪行，但是我宁愿看到一个有罪的人利用制度漏同逃脱制裁，也不愿看到一个无辜的人被制度陷害而被处死。我又查了一下，的确有20名死囚犯因为DNA的证据而被免罪，但法庭对他们的判决记录并没有做修改。根据这部愚蠢的法律，如果律师没有在规定时间之前把几张纸交上来，他们就会被处死。
Tmx：
挑毛病总是很简单，但不要忽略其它的事实，无辜的人也可能在同样的制度中被冤枉。
Sjford：
你根本不知道……文章并没有讨论是否有罪的问题，只是在说提交申请。所以你到底是怎么得出他们有罪这个结论的？
Shanandoah：
我知道我写的东西往往都会落入聋子的耳朵，但还是要表明我的态度。在仔细研究我们的“司法制度”时，当局肆意的杀戮、不合法的逮捕、官员在宣誓后说谎、政府睁一只眼闭一只眼（比如大学校园强奸事件）、政治“法官”……人们必然会想，我们的“司法制度”究竟有多腐败。这当然取决于我们人民，但是人民显然并不掌控整个国家，这些披着合法外衣的暴行必将延续。
ballgame21：
不明白这有多重要。谁在乎坏蛋的命运？找点别的事情去做吧，别搞得好像他们都是清白的。
Tmx：
美国一共有321名死刑犯在宣判后通过DNA检测被免罪，有些人已经被投入死囚牢。还有一些案件无法确定，因为没有DNA证据。http://www.innocenceproject.org/know/
dc_wolverine：
这是在开玩笑。你真的认为我们从未处死过无辜的人吗？太天真了。
C_R：
文明的国家没有死刑。
Dontel：
非常好的文章。无能的律师不但在犯错之后可以全身而退，而且不留下任何职业记录污点。这么大的问题让人们怎么能放心地聘请律师？
原文：
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.
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.”
Floyd Damren
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.
Ronnie Johnson
“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.)
Elton O. McLaughlin
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.
Mark Asay
“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.
William Gregory Thomas
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.
Facing consequences
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.
Robin 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.
MMuffley
In any other First-World country, this would be a scandal, immediately addressed and corrected. But in America, we're perfectly OK with our "justice" system being unjust to those we dislike. A rather ugly side to our "exceptionalism".
californiawalrus
My God, you live a sheltered life. It's mind staggering that you believe everything you read in the post and also seriously think things are better elsewhere than in the U.S. Go there! Please!
maxjl
I don't live a sheltered life. I've traveled the world, including the most poverty-stricken places, and yes, things are better than the U.S. in many places. Is that your answer? Instead of trying to improve conditions here, just get the hell out of the U.S.?
Looking_in
Standard response of the patriotically stupid when confronted by evidence that we might be able to learn from other countries: "go live there."
californiawalrus
Life's tough.
WhiskeyTangoFoxtrot1
Profound!
WaPoReader1961
The unspoken truth about these inmates is they all have pages and pages of previous criminal records - thus they are far from "innocent victims".
FLWin
Have you read the criminal records of all of these people? My guess is not.
T.j. Kennedy
No one is saying they are innocent but they do deserve due process of the law
tdbrew
If you don't commit murder and multiple other serious crimes you most likely won't have to trust your life to an incompetent attorney.
Bill7547
That is not necessarily true. You obviously do not follow the news of a number of innocent people getting convicted, only to be cleared years later. In Texas they do not care if they get the right person, only they get a conviction.
T.j. Kennedy
Thanks Bill as of today 146 men have been exonerated
Bill7547
We had a Town Police Chief sent to jail. A well politically connected lawyer got two fired police officers from another department hired to his department without his endorsement. The Chief got convicted for hiding these two bad actions in his department. This same lawyer defended the Chief in Court and got him convicted. He also bankrupted him with his fees.
Mass Vocals
prison reflection the truth is who is the innocent who is victims the crimes listed here are mala prosa crimes of acts agaist others which damage to a party the olds days common law murder was not a sentance to life but life given you was shot dead after trial
iSmellLiberalFear
None of these people were innocent. This is just an example of how overly burdensome it is to rid society of undesirables.
FLWin
How do you know? What if there was an innocent man convicted? It HAS happened. Your ideological dismissal is illogical, unreasoned and callous.
WhiskeyTangoFoxtrot1
"None of these people were innocent." Now that, your honor, is some kind of dumb.
skinsdude
They were convicted in state court and the state supreme courts did not find reason to overturn. They are not innocent.
T.j. Kennedy
What is a undesireable
Matt Haley
Whether or not these men were guilty, they deserved much better than they got from the lawyers assigned. The lawyers losing their license for a period equal to the lateness of their appeals seems fair.
Robert R. Bryan
As one who specializes in capital litigation, I am aware of numerous cases in which the lives of the condemned have been jeopardized because of lawyer error. Sadly, this is not an unusual occurrence.
ZZammit
"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." She knew the appeals were late, but she filed anyway because (A) she could still charge a fee, and (B) it gave her something to complain about.
skinsdude
Except she didn't get a fee in three of the appeals.
reah1
The death penalty is so flawed in its application that it ought to be banned.
maxjl
Yet another reason to eradicate the death penalty. Our "justice system" is so deeply flawed, especially for those living in poverty. To execute even one innocent person in the name of "justice" is the most unpardonable act ever.
GBrouter
Client always pays the price of ATTORNEY stupidity and mistakes. No ATTORNEY is accountable for their errors of judgement or being licensed thieves. An attorney goes to Heaven. St. Peter says “Hello Attorney Smith, how are you today?” Attorney says “I cannot be dead. I am 42 years old, I have a beautiful wife, 3 wonderful children, two mistresses, a big beautiful boat and a big beautiful house. How can I be dead?” St. Peter says, “According to my records your billable hours make you 125 years old.”
GBrouter
The net worth of the average black household in the United States is $6,314, compared with $110,500 for the average white household, according to 2011 census data. The gap has worsened in the last decade, and the United States now has a greater wealth gap by race than South Africa did during apartheid. (Whites in America on average own almost 18 times as much as blacks; in South Africa in 1970, the ratio was about 15 times.)
• The black-white income gap is roughly 40 percent greater today than it was in 1967.
• A black boy born today in the United States has a life expectancy five years shorter than that of a white boy.
• Black students are significantly less likely to attend schools offering advanced math and science courses than white students. They are three times as likely to be suspended and expelled, setting them up for educational failure.
• Because of the catastrophic experiment in mass incarceration, black men in their 20s without a high school diploma are more likely to be incarcerated today than employed, according to a study from the National Bureau of Economic Research. Nearly 70 percent of middle-aged black men who never graduated from high school have been imprisoned.
tpaxton27
As part of the lead to this story, they show photos of death row inmates. They really ought to show photos of the attorneys who represented them.
skinsdude
or the photos of the Slain and their families, and the Crime Scene.
brian112358
For the author of this piece, and all of the would-be commenters who want a taste of lawyer-blood, just remember: many of the cases involving the death penalty are taken on pro bono. They don't pay well, they're emotionally draining, and they're almost never successful. The lawyers who take them on do so often - not always, but often - out of a sense of moral responsibility. If you want to remove all incentive for any lawyer to represent death-row inmates, then by all means, tar and feather every lawyer who makes a mistake. I don't think anyone will be better off, but I doubt you guys care much about that anyway.
bobjlv
probably why in most of these cases as stated in the articles, these lawyers still have spotless records in their state bars.
Epaminondas Vindictor
In the South, it is the system that is important - the individual is nothing.
FergusonFoont
What is the intent of this article, to make defense attorneys culpable for being defeated in court? Is the goal to dry up the supply of competent defense attorneys? I do not find that to be a particularly worthwhile goal.
SoCalWP
The lawyers discussed in these cases should not be punished for losing, they should be punished for gross negligence in failing to perform a basic duty that guarantees their client will lose his or her appeal. After all, one can't win an appeal if it's never filed or filed so late that it is automatically dismissed by the court. As far as drying up the supply of competent defense attorneys, I don't think that will be a concern if the attorneys discussed here are forbidden from litigating death row appeals.
skinsdude
SoCalWP, you are looking at the issue in the wrong light. They are not doing a disservice to their clients. If anything, they are PROLONGING their lives by dragging their feet on filing the appeals, because they also give grounds for yet another appeal (ineffective counsel). All part of the abuse of process.
rskins09
Your right ... You can lose but STILL give your client good representation ...Too many defense Lawyers don't ... Only thing they care about is how much $ they get ...
skinsdude
Murder x3, Murder/Burglary, Murder/Burglary,Murder for Hire, Murder and Kidnapping. Boy, the Post really picked some winners to plead their anti-capital punishment efforts here. I don't support the death penalty in every murder case, but breaking into someone's house and killing them in their own home? Killing multiple people? Accepting Payment for Murder?
**Bonner did not ask for payment on the 3 cases filed late.
There's the issue right there. It's Pro-Bono work. We're also overlooking the fact that these guys already had trials and had appeals filed in the State courts. It's an Abuse of the Process to assume that someone should have a Federal appeal simply because they are facing death. If they were convicted, they were convicted. The Federal Courts should stop tying up time with this junk. You should get an Auto-Supreme Court review and that's it.
tmx
"There have been 321 post-conviction DNA exonerations in the United States " These are cases where DNA is available In many cases it is not http://www.innocenceproject.org/know/
rskins09
Had a big Supreme Court case years ago to shorten the appeal process ..Still way to long though ...
ReadersWhoWonderAloud
Boohoo: murderous cretins don't get unlimited rights of appeal. Next.
Pawn moves
"A Texas woman whose four pit bulls entered her neighbors' yard through a hole in the fence and killed their 10-year-old beagle is suing them for $1 million." This says it all about lawyers, judges, and courts. We are a country out of control. http://www.foxnews.com/us/2014/11/16/texas-woman-s...
bobjlv
Even though I refuse to watch Fox News, I 100% agree with your comments. It appears she's (plaintiff) is very well aware of the goldmine people can make when hurt on someone else's property and she's taking advantage of it. Hopefully a common sense judge will throw it out.
rskins09
This sounds like a good case for Judge Judy ...The show has a lot of dog bite cases and you can see Judge Judy make up her mind the first three minutes ...
8534 feet
Not enough time, not enough money, too many people - I wonder what this country will be like with 600 million people?
dfoster2
Where was The Post when "time ran out" on the innocent victims of these convicted murderers?
dfoster2
Anyone have a clue why The Post won't let readers comment on the Peter Kassig beheading story?
JOelschl
Not every convicted murderer has valid grounds for an appeal. It should not be automatic. There should be actual grounds for the appeal.
pjjacobs
If there is no grounds for appeal, the case will be dismissed.
Sedge2
Many professions have areas of specialization. For example, an electrical engineer doesn't determine what kind of foundation a building should have but many lawyers seem to believe that all they need to be able to do is out argue the opposition, specialized expertise not needed. They have even set up a system where they get to ask questions to elicit specific answers but expert witnesses are restricted in what they can say and definitely can't ask questions. That way they always look good, or so they think. Why? Because for many the legal profession is not about right, wrong, legal, illegal, morals or ethics. It is all about billable hours and every lawyer apparently can practice any kind of law. Having been deposed several times as an expert witness I quickly learned that I would be asked the same questions many times, not only to try and trip me up but also to chalk up more billable hours. As for oversight, there is little to none as your lawyer is also chalking up billable hours. When in court, remember that the judge is also probably a lawyer by training and a member of the club. What percentage of Congress persons have law degrees?
DorothyfromColumbus
Two conclusions WaPo would like us to draw:
1. Everybody -- especially these guilty scum -- is entitled to a PERFECT lawyer, not just a lawyer. Never mind the cost to society.
2. If the lawyer fails, he or she should be put to death with the client.
Dumb and dumber grows the WaPo....
rskins09
I agree to a certain extent ...But , to miss the cut-off date for an appeal ..." 80 Capital Murder .. and missed the appeal " ,,, Is this date Top Secret or what ....If they don't know the cutoff date for an appeal, ask someone ..And Lawyers wonder why people despise them ...In the article
above I wonder what their excuses are ...They should be disbarred ..
dc_wolverine
If you drew those two conclusions, you weren't reading the same article as everyone else. Let me destroy both of your conslusions:
1. Everybody -- especially these guilty scum -- is entitled to a PERFECT lawyer, not just a lawyer. Never mind the cost to society.
Your premise is that they're all guilty scum - so I'm wondering why you even bother with a trial? The article and the judges emphasize "competent" counsel, not perfect. Assuming everyone convicted of capital murder is guilty is more than naïve, it's being willfully ignorant when we've see more than 20 death row inmates exonerated just in the past few years.
2. If the lawyer fails, he or she should be put to death with the client.
Dumb and dumber grows the WaPo....
This conclusion is almost beyond belief. Can you point to a single sentence or paragraph in the article that suggests lawyers should be put to death? How exactly did you invent this conclusion?
Your last statement in conclusion #2 really only applies to yourself. Yours is possibly the most ignorant and offensive post I've seen here this week, and that says a lot.
sjford
What "perfect" lawyer? What I got out of the article was they were looking for a competent lawyer. Is that too much to ask considering missing the deadline is effectively a death sentence???
glazeman
Yet another reason for an end to capital punishment.
air_please
Strap a couple lawyers in the chair...that'll fix it. Like everyone else I guess...to hell with accountability as long as I get paid.
NJBob49
The obvious (and moral) solution is to get rid of the barbaric death penalty and join the ranks of modern civilized nations.
cupojoe1
Tell that to the murder victims.
SeaTigr
And what are you going to tell the family of the innocent man/woman executed for a crime s/he didn't commit? "Oh, well, sorry about that."?
Twenty people on death row have been exonerated through DNA. Not had their convictions reversed on appeal due to a technicality. E-X-O-N-E-R-A-T-E-D. Two of them, if memory serves, were each wrongfully imprisoned for over 30 years!
cupojoe1
They're actual guilt is not being questioned here.
pjjacobs
You didn't answer the question: what are you going to tell the family of the innocent man/woman executed for a crime s/he didn't commit?
C_R
Too bad our justice system isn't about revenge; the victims may want them to die, but that's completely irrelevant.
cupojoe1
It seems to me that a central point of this article is missed: These guys all did horrible things. They are not Richard Kimball or Andy DuFresne. They're actual murderers.
SeaTigr
Better a guilty person go free than an innocent person executed.
cupojoe1
Nowhere in the article was their guilt questioned.
pjjacobs
The article did not really discuss guilt or innocence at all. It focused purely on the lawyers.
SeaTigr
And nowhere was I questioning their guilt. But I would rather see a guilty man go free because of a technicality than an innocent man executed because of a technicality.
And, last I checked, 20 people on death row have been exonerated by DNA evidence. Not had their convictions overturned on appeal due to a technicality, E-X-O-N-E-R-A-T-E-D. Yet, according to this asinine law, those men should be put to death if their lawyers don't file some piece of paper by a specified date.
tmx
its easy to pick out the worst cases and ignore the fact that innocent people can be and clearly have been executed in the same way that these were
sjford
You don't know that...the article didn't cover guilt or innocence - only filing deadlines so where in god's name are you getting they were guilty?!
shanandoah
Though often I know that what I write falls on deaf ear (or blind eyes), it still worth casting my opinion.
In dissecting our "justice system", given the numerous killing of people by authorities, uncalled-for arrests, officials lies under oath, officials looking the other way (college rapes for example), political "judges"... and so on, one cannot but wonder as to how corrupt our "justice system" is, and how long it will last. As it should be, it's up to us the people, however, the people, apparently, are not in control of the country and these atrocities under the cover of law, will continue. So sad.
ballgame21
Not sure why this matters at all. Bad guys who cares? Worry about something else to write about. Not like they were innocent.
tmx
There have been 321 post-conviction DNA exonerations in the United States. Some of these were on death row. There are many other cases which could not be determined because no DNA evidence was available. http://www.innocenceproject.org/know/
dc_wolverine
This can't be a serious post. Do you really think that we've never imprisoned or executed an innocent person? How truly naïve.
sjford
It's ignorant people like you that keeps our prisons populated with innocent people. If we kill a few innocent ones so what right?
C_R
Civilized countries don't execute.
Dontel
Very good article. Not only are the bumbling lawyers allowed to walk away from their incompetence without penalty, there is almost NO record anywhere of their being at fault. Such a disgrace and a huge problem for people looking to hire a lawyer.
annerogerduncan
Deadlines and mandatory sentences have a certain function but they also imply and lack of trust of the judges...who often ascend due to politics...so in a way politicians are cautioning the electorate not to trust the actions of politicians...and I have known judges who also miss deadlines and alike go unpunished. Who punishes a Supreme Court judge by the way?
dc_wolverine
Supreme Court justices can be impeached by Congress.
annerogerduncan
Can be and will be are very different phrases! Something like "almost never are and won't be!"
msmithnv
How about an article this size on victims of murderers. The solution is do not murder someone.
dc_wolverine
Good assumption. If they're innocent, then why in the world were they convicted and sitting in prison? Everyone knows that our justice system is 100% accurate and that we've never, in the history of the country, imprisoned or executed an innocent person. Thanks for the clarification!
myvoicetoo
Require DNA testing of evidence for all capital murder, rape and other pertinent cases to prevent conviction of the innocent. Eliminate the death penalty. Our prison system needs serious reform.
Yes Sir
Require the DNA test and if it matches then immediately execute within 24 hours.
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狗仔卡
发表于 2014-11-24 08:57
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发表于 2014-11-24 09:04
