Death by Bowles v. Russell?
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.