Death by Bowles v. Russell?
posted by Frank Pasquale
The Supreme Court’s 5-4 decision in Bowles v. Russell “dismiss[ed] the appeal of a convicted murderer because it had been filed two days late, even though it had met a separate deadline set by the trial judge.” The NYT now reports on a prisoner who has been executed due to his attorneys’ barely missing a deadline:
The presiding judge of the Texas Court of Criminal Appeals is the target of a rising national outcry a month after turning away the last appeal of a death row inmate because the rushed filing was delayed past the court’s 5 p.m. closing time. The inmate, Michael Richard, was then executed for a 1986 sexual assault and murder — the last person to die in Texas while the United States Supreme Court reviews the constitutionality of lethal injection.
The judge, Sharon Keller, has said she did not know that Mr. Richard’s defense lawyers in Houston were having computer problems when they asked the court for 20 more minutes to deliver their final state appeal to Austin hours before the scheduled execution on Sept. 25.
I suppose one question raised here is: did Judge Keller have a choice? Was she forced by Bowles not to extend the deadline? Justice Thomas’s opinion in Bowles stated that the “taking of an appeal within the prescribed time is ‘mandatory and jurisdictional.’” But Justice Souter’s dissent suggests there is ample precedent out there to make the majority’s view the “outlier;” he states that the majority “suddenly restore[d] [the] indiscriminate use of the ‘mandatory and jurisdictional’ label to good law in the face of three unanimous repudiations of [this] error.” It’s not my area, but I’d be fascinated to hear what others think.
Hat Tip: Doug Berman.
October 25, 2007 at 6:18 pm
Posted in: Criminal Law
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Responses (4)
Howard Wasserman - October 25, 2007 at 9:14 pm
Bowles was about time requirements for filing appeals in federal court; it has no effect on the time requirements in state court. Judge Keller would have to do her own analysis of the nature of the Texas rules (whether legislatively or judicially created). I suppose Bowles was be persuasive of how the Texas rules should be understood. But Bowles certainly would not have required Judge Keller to do (or not do) anything.
AYY - October 26, 2007 at 2:04 am
Beldar has some interesting information about this.
See http://beldar.blogs.com/beldarblog/2007/10/more-facts-rece.html
and
http://beldar.blogs.com/beldarblog/2007/10/was-michael-ric.html
BTW, why do you say he was executed because his attorneys missed a deadline? He was executed because he committed a capital crime.
B - October 26, 2007 at 8:09 am
I’m glad you blogged about the story, but Bowles has nothing to do with this. Even leaving aside the federal vs. state law issue.
On the day Richard was scheduled to be executed, the Supreme Court granted cert in a case that called his execution into question. His attorneys rushed to request a stay. There is no “jurisdictional” bar, in the Texas CCA or any court that I am familiar with, to a court accepting an after-hours filing in such an exigent situation. Other judges on the court were waiting around for a last-minute filing. Certainly Keller has not claimed that she was powerless to allow a filing at 5:20 rather than 5.
The only question here is whether there was some miscommunication that explains what happened or instead whether Keller simply abused her control over the administrative staff in gross fashion and to the shame of the CCA (which would be quite a feat).
Scott Dodson - October 29, 2007 at 10:21 am
Bowles is a big case. For those who are interested in commentary on it, see Northwestern University Law Review’s Colloquy conversation here and here and my blog post about it here.
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