Eleventh Circuit Bars Death Row Appeal Of Indigent For Lawyer’s Failure To File $154 Fee Or A Motion Of Indigent Status

200px-HK_Central_Statue_Square_Legislative_Council_Building_n_Themis_sShortly after Christmas, the Eleventh Circuit barred an appeal from Ronald B. Smith, a death row inmate in Alabama, due to his failure to “properly file” a document by the court deadline. The filing was actually timely but his lawyer failed to include a $154 filing fee or, in the alternative, file a motion that his client was indigent. He was indigent but that did not stop the Eleventh Circuit from barring the death row appeal. The Supreme Court has twice rebuked the Eleventh Circuit for its draconian treatment of such minor rules in capital cases but the judges on that court continue to dispense with notions of equity and proportionality (and justice) in barring such appeals. It turns out that his lawyer was under probation at the time and later committed suicide.

The case reminds many of us of the actions by Texas Judge Sharon Keller and other judges.

Notably, the appeal has merit. The jury in the case voted seven to five against the death penalty but Alabama allows the judge to override the recommendation and the judge sentenced him to death.

To make this even more unjust, it turns out that Smith’s lawyer himself was on probation for public intoxication and addicted to crystal methamphetamine. His lawyer, C. Wade Johnson, would ultimately be charged with drug possession, declare bankruptcy and commit suicide. Yet, none of this made any difference to the judge on the Eleventh Circuit.

Alabama has been repeatedly criticized by the Court for its capital justice system, including the failure of the state to supply counsel for indigent defendants in post-conviction cases.

The Eleventh Circuit however found that the involvement of another attorney (even though he was not licensed to practice in Alabama) made the failure to pay the small fee or file the perfunctory motion inexcusable. Judge Rosemary Barkett dissented noted rather obviously that “it is unjust and inequitable,” she wrote, “to require death row inmates to suffer the consequences of their attorneys’ negligence.”

Source: NY Times

45 thoughts on “Eleventh Circuit Bars Death Row Appeal Of Indigent For Lawyer’s Failure To File $154 Fee Or A Motion Of Indigent Status

  1. “Notably, the appeal has merit. The jury in the case voted seven to five against the death penalty but Alabama allows the judge to override the recommendation and the judge sentenced him to death.” -Jonathan Turley

    Who was the judge who overrode the jury’s recommendation?

    Our “justice” system…

  2. There seems to be a trend in American society that is troubling.

    On one hand we demonize inappropriate social behavior – tasteless, stupid comments. Societal responses to such behavior frequently resemble lynch mobs.

    On the other hand, we allow the state to commit acts of cruelty such as this column describes. Given the typical media (and reader) responses, we tend to regard these state actions with equanimity.

  3. Let me see, if your indigent you can go and kill at will and not face the death penalty? Why haven’t mass murders Jared Lee Loughner and James Holmes been put to death? These should be open and shut cases, who needs them? How about William Spengler, killed his grandmother in 1980 with a hammer doesn’t get the chair gets out of jail sets an ambush in upstate New York and kills 2 firemen. That alone says something for the death penalty.

  4. It’s only a matter of time before the death penalty is no longer an option in any of the 50 states, just a matter of time. Are there some cases that are slam dunk, Yep, have one here in Idaho, no question of his guilt, DNA, eye witness, plead guilty. He may or may not ever face his death sentence. Our Criminal justice system is overflowing with criminals as has been pointed out in many articles.
    So what to do? How about no death penalty and keep the worst of the worst in for life. Reduce the number of “criminals” in our jail system by much better substance abuse programs to get the non-violent back to a life with society. How about not putting people in prison who smoke marijuana? Drug cases do not belong in criminal court.

  5. Disgusting case. The entire Alabama court system should be reviewed to see how many people are incarcerated illegally and how many innocent people have been killed by the state and its indifference to the truth.

  6. …its indifference to the truth -rafflaw

    Well said, rafflaw. There’s too much “indifference to the truth.”

  7. The old common law notion of “equity” appears to have been abandoned in Alabama. The dismissal of this appeal for lack of fee payment is to my mind criminal in and of itself.

  8. What, is Judge Bork on this court? Sad to say, but these judges are more likely Republican appointees then those by Democratic appointees. Too many Republican appointees seem to have disdain with the concept of our civil rights and COnstitutional rights.

  9. no death penalty, your indgent so you push someone in front of a subway train to kill him you go to jail forever and live to the ripe old age of 86 (average age for lifers in prison) free medical board and room food.

  10. Any circuit but for the 9th and in my opinion is tenable…..would use this technical procedure to screw someone…… Where’s Kay posting today…… Is this justice…..

  11. Let me see the attorney does something inexcusable but the client pays. I don’t know anything about this case but not paying a fee on time should not be a basis to dismiss an appeal in a death penalty case.

  12. Bron,

    I’m not saying he don’t deserve to die….. But substantative due process and procedural due process are two separate beasts….. Kill him because he has had his due process, not because you can…..

  13. Who in the hell selected these two to represent Mr. Smith? I take it they were selected by and paid by someone other than Mr. Smith who being indigent and on death row couldn’t exercise any control over the process. Whomever hired the drunken druggie attorney and the out of state, non-licensed to practice in the state attorney, acted as Mr. Smith’s agent … right? Okay, so that agent should also face charges and disbarment procedures (if licensed) for failing so totally in successfully acting on Mr. Smith’s behalf … right?

    I’ve read through the original article and tried to find others wherein the agent representing Mr. Smith and thus responsible for selecting the idiots is identified. All I can find is … “The legal system generally answers by saying that lawyers are their clients’ agents. The answer makes perfect sense when you are talking about sophisticated clients who choose their lawyers, supervise their work and fire them if they turn out to be incompetent or worse.

    But the theory turns problematic, Judge Barkett wrote, when the clients are on death row, have no role in the selection of their lawyers and have no real control over them.” (NY Times)

    It’s that agent who dropped the ball first in selecting the attorneys and then again in failing to supervise them.

    Am I right or am I wrong?

  14. correction … It’s that agent who dropped the ball first in selecting the attorneys and then again in failing to supervise them, also responsible?

  15. Horrid

    Would some attorney in the know tell me why Alabama allows a judge to override a jury’s decision in a death penalty sentence when the US Supreme court declared only a Jury can hand down a death sentence? Or am I under the wrong impression.

    Respect the jury’s wishes. 7 to 5 against the death penalty. It is what it is.

    Personally, if I was a court clerk and saw the appeal paperwork come in and having knowledge of this case, the 7 to 5 issue and all, I would call up the attorney’s office and mention the fee being due. And if no answer before the deadline, $154 in cash would somehow appear out of thin air and guarantee this man’s appeal. Yes, I took my lunch break at the restaurant across from my bank, but that is strictly a coincidence.

  16. The Judges who kill will be judged. When they are dead and they go to the Pearly Gates for that interview which determines Hell, Heaven or Limbo, they will meet their judge who sits on the bench that day for the presiding Saint Peter who will be off playing golf. Sitting in will be a dog. The Sixth Commandment says that Thou Shalt Not Kill. No excuse because you wear a smelly black robe. Go to Hell.

  17. Judge Barkett got this one right. When justice meets exigent circumstances, sometimes a formality must bend like a reed in the wind if the true measure of justice and equity is to be had.

  18. Well, the failure to pay the $154 fee can be appropriate reason to kill a guy if and only if the State of Alabama can prove, absolutely and without a single shred of doubt, that it never once in the history of the state (and before that the history of the colony or territory) EVER paid a bill late that was $154 or more. If it can prove that it never once did that, then sure, kill the guy, who cares. But if that state or any agency in that state or any employee of any agency in that state on behalf of that agency or state ever once failed to pay or reimburse a sum of $154, they’re a pack of lying murderous corrupt disgusting subhuman thugs whose licenses (of all kinds to do anything) should all be immediately revoked. Oh yeah, and then kill them. Seven to Five. Kill them seven to five. And that judge, give him or her a fair trial and then take them out back and shoot them.

  19. Can’t you just hear all those people who say things like: “Yeah, well ,would you prefer the legal system they have in China, Roosha, Toikey etc.?”

  20. Jerome McCollom 1, January 10, 2013 at 12:55 pm

    What, is Judge Bork on this court?
    Bork has passed on to the big court in the sky.

  21. It’s the form over substance guys from the Bible Belt. Good ol’ Christian compassion whose exercise almost no one would quibble with or even mention in passing.

    Here’s praying that our black-robed nit pickers get the same swift, severe, and pitiless justice in the afterlife that they mete out so callously in this life.

    You have to be awfully certain to let a man die for the failure of his lawyer to pay $154.00. And we all know that certainty is the currency of fools.

  22. If I am fool, it is, at least, a doubting one; and I envy no one the certainty of his self-approved wisdom.

    ~Lord Byron

  23. AY:

    the older I get, I say give them life in prison with no get of jail card. Let the minor criminals out and clean them up. the money saved on the appeal process could pay for real rehab.

    save the death penalty for real sick ba$tards.

  24. Succinctly:

    The man received effectively a penalty of death over $154.00

    I should have read the NY Times source article sooner. An excerpt:

    Since 1976, Alabama judges have rejected sentencing recommendations from capital juries 110 times, according to data compiled by the Equal Justice Initiative, a nonprofit law firm that represents poor people and prisoners. In 100 of those cases, judges imposed the death penalty after juries had called for a life sentence

    Folks, after I read the above, what can a person say? Decorum prevents me from writing what I said afterwards, but you can get the picture. To me that was the most broad and unjust fact I have heard in years. What a disgrace. I am generally pro-death penalty but even someone like me would find this to be rather sickening. Jury spared them their lives, choosing life imprisonment and the judge overruled them and said execute him 100 out of 110 times. Just sick, why even have the jury to begin with? And getting incompetents to represent these defendants? What a show trial.

    I know some of you folks might get tired of me talking about Washington State a lot (it is what I know best) but despite some of my criticisms of the court decisions here I can say without any reservation whatever trials of capital offenses in Alabama are a cluster-F compared to Washington. We are an assigned counsel state and our system requires that indigent defendants receive attorneys with ability and experience commensurate with the level of crime charged, from arraignment to final appeal. And only a jury decides if a death penalty is assessed. And to get a death sentence, you have to be a pretty depraved individual.

  25. Bron,

    You know…. People can say the same thing…. While ignoring the truth….. I agree the death penalty should be abolished….. But there are some crimes that should never come to trial…….

  26. Bron,

    You know that there are many folks here that prefer form over substance….. That’s why they keep the Duce Party system in power….

  27. Ah, the “Filing Fee”. Yes, well, Judge Schmucko, when you were down on Earth you failed to pay your dues when they passed the plate at that Christian Church that you attended. Therefore, go to Hell.

  28. My objections to the Death Penalty have never been over whether it is moral for a society to execute foul murderers. My problem with it is that it has never been fairly applied and if an error is made it can’t be even partially rectified. To me the death of one innocent person and I know there have been many, negates the deserved deaths of many depraved killers.

  29. The Death Penalty: ah, yes. An eye for an eye. A tooth for a tooth. A penis from venus… But then there are those Commandments. The Sixth Commandment comes to mind. Thou Shalt Not Kill. Now, well, you might say that Alabama is different. They have a “Y’all can exception” to the Sixth Commandment. That means that the People of the State are “Y’all”. The State says let the People decide. Pick a jury. Jury says no death. Judge says: Kill em. So, eye for an eye. Tooth for a tooth. Death to the judge. Pretty simple logic when they defy the rule of Y’all Can in Alabama. And, as I said before, that Judge aint gettin into Heaven. Nope, its Hell. Pure and simple. So, enjoy life on this planet Earth you single “non Y’all killer”. Your time will come. This dog dont have mail privileges, so will someone mail the judge the comments on this blog. I am sure that that judge dont read this blog. He probably can’t read.

    Why is there a filing fee? A filing fee of $147.00 when you are requesting an appeal of a death sentence? Is this Saudia Arabia? Are we in some Pirate Territory?

  30. Just finished reading a Grisham novel where an appeal was to go to a judge who knew the appeal was coming and the lawyers were running late. The jdge told his clerk close the door at 5 p.m. on the dot and if they are not there then so what. The innocent man ended up dying (being killed) by lethal injection.
    Just a novel? Sounds awfully close to the eleventh circuit.

  31. Actually leejcaroll,

    Read all about this in the Texas Court of Criminal Appeals…. The court of last resort…. Judge Sharon Keller….

  32. Thanks AY, No ethical violation”?? Thght that was the worst until I read she was reelected. Hopefully this is not a situation of ‘you get what you deserve’.

  33. Ljc,

    It gets better…. She has a family that invests and trades real estate…. She is part of the empire…. She got busted for not disclosing….. So far she’s escaped the same fate as Diane Hathaway….. I won’t say her family is into shady dealings but damn close….

  34. lee, She is a Texas republican so she easily won re-election this year.although the democrats did field a good candidate against her. You can pretty much do what you want here if you have an r by your name. Both the State Supreme Court and Criminal Court of Appeals are 100 percent republican.

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