NINO AND DAVID

Longtime and careful readers of our blog and Mr. David O Markus with a K's blog know that Mr. Markus has engaged in a long and continuing battle with us over Justice Antonin Scalia. Despite his Harvard education, Mr. Markus somehow clings to the belief that Justice Scalia is the best friend a criminal defense attorney has on the US Supreme Court. We have continually alleged that Scalia is a rank statist (you robed readers can click on the word for a definition) .

We shall now endeavor to examine the opinion in Holland v. Florida, to see who is right.

The facts are simple- Holland - a death row prisoner, had an ass for a court appointed attorney who missed the 2244 post conviction relief deadline. Out of time and seemingly out of luck, the 11th Circuit affirmed the District Court's denial of Holland's pro se request to toll the deadline. In a 7-2 opinion, Justice Breyer wrote for the Supreme Court that the time provisions of 2244 are subject to equitable tolling and that a lawyer's negligence can possibly satisfy the extraordinary circumstances required for equitable tolling.

Along comes Scalia in dissent with- (guess who? Stevens? Ginsberg? hahahaha) Justice Thomas. Note that the facts of this case are so extreme that even Roberts and Alito joined the majority, although they must have steadied themselves with a few stiff shots before agreeing to do so. (Alito concurred in part, and dissented in part because he didn't get a stiff enough drink.)

Scalia has two problems with the decision: first a complicated and somewhat convoluted argument about statutory interpretation; and second (and more important for our purposes) Scalia offers a rousing defense for incompetent attorneys and attempts to eviscerate the right to counsel.

Scalia looks to for ways to uphold the strictest possible reading of the statutory deadlines in 2244. He finds it in a string of 50 year old cases that examine the negligence of retained counsel in civil cases.

Because the attorney is the litigant’’s agent, the attorney’’s acts (or failures to act) within the scope of the representation are treated as those of his client, see Link v. Wabash R. Co., 370 U. S. 626, 633––634, and n. 10 (1962), and thus such acts (or failures to act) are necessarily not extraordinary circumstances.

Now, what about that pesky part of the sixth amendment right to effective counsel in criminal cases? To rule for the government, Scalia needs to take out his knife and do some carving:

"To be sure, the rule that an attorney’’s acts and over- sights are attributable to the client is relaxed where the client has a constitutional right to effective assistance of counsel. Where a State is constitutionally obliged to provide an attorney but fails to provide an effective one, the attorney’’s failures that fall below the standard set forth in Strickland v. Washington, 466 U. S. 668 (1984), are chargeable to the State, not to the prisoner.

(Rumpole notes: so far, so good).

But where the client has no right to counsel——which in habeas pro- ceedings he does not——the rule holding him responsible for his attorney’’s acts applies with full force. See Coleman v. Thompson, 501 U. S. 722, 752––754 (1991).4 Thus, when a state habeas petitioner’’s appeal is filed too late because of attorney error, the petitioner is out of luck——no less than if he had proceeded pro se and neglected to file the appeal himself.

(Kaboom!).

Let us put that in English for you: If you're poor and already convicted, you are stuck with the lawyer you get no matter how bad (or braless- see our previous post) he or she may be. If you're poor and not yet convicted, you may get the benefit of a Strickland v. Washington analysis if your lawyer was incompetent. But once you lose, you have no right to complain about how bad your lawyer is at the next level. It's not like innocent people have ever

been sentence to death and then vindicated through the great writ of habeus corpus, right? Of course not.

Scalia ponders what the possible reasons are that caused the attorney in the case to miss the deadline. Included in his pondering are that the attorney "missed in the mail" the opinion from the Florida Supreme Court, or even that "it simply slipped his mind." Woops. An attorney forgets about a man on death row who claims he is innocent. "What to do? What to do?

Well for Scalia, it's simple- he is a statist true and true in all cases requiring strict construction of statutes, unless you're last name is Bush and you don't want all the ballots in Florida counted. But if your last name is Holland and you are on Death row- here is all Scalia can muster for you:

Such an oversight is unfortunate, but it amounts to ““garden variety”” negligence, not a basis for equitable tolling.

One wonders how Justice Nino Scalia would feel about "garden variety" negligence in perhaps a heart surgeon performing a bypass on him or a loved one?

"Sorry Mrs Scalia- but the surgeon forgot to clamp off an artery. It slipped his mind. It's garden variety negligence and your husband is dead. Have a nice day and thanks for using GW Hospital."

Let us boil it down to simplistic terms that even great trial lawyers who unfortunately happened to attend law school in Cambridge can understand: In Justice Scalia's world, the people serve the law, not the other way around. The law does not serve to ameliorate human suffering or right wrongs. Indeed, to preserve order in the State, the law imposes strict deadlines that must be obeyed no matter what the consequences in human terms.

To Scalia, the law is a monolith that just is. Judges interpret writings on the monolith and apply it's exact meaning (unless the monolith happens to count some humans as 3/5th the value of others- then the monolith has to be read in terms of the time when it was written. ) But other than that, what is etched in stone goes, no matter what.

In Scalia's world- a law forbidding swimming on Sundays would require all lifeguards and bystanders on a beach to watch a child drown, because unfortunate as that event is, the law must be obeyed and is not subject to whimsical interpretations based on individual human need.

Under Scalia's interpretation of 2244, an innocent inmate who has missed the 2244 deadline and who is scheduled to be executed MUST be executed even in the face of 100% proof of actual innocence, because the law, like all orders from above, must be obeyed.

You can have Justice Scalia and his black and white world. David can have him too, although we doubt he agrees with this decision.

We choose to work for a law and a society that serves the citizens, not the other way around.

See You in court.