Access to Justice

by Brandon L. Garrett and Lee Kovarsky. Garrett is a professor of law at the University of Virginia School of Law and Kovarsky is an assistant professor of law at the University of Maryland School of Law. They are co-authors of a habeas corpus casebook, Federal Habeas Corpus: Executive Detention and Post-conviction Litigation, which was just published by Foundation Press.

This week, the Supreme Court handed down habeas decisions on two different gateways through procedural obstacles to federal habeas review. The first decision involved an “innocence” gateway. In McQuiggan v. Perkins, the Court held that, despite a constitutional claim’s untimeliness, a federal court could reach the claim’s merit if there exists a reasonable chance that the inmate was wrongfully convicted. The second gateway is a “bad lawyering” gateway. In Trevino v. Thaler, the Court held that inadequate state post-conviction representation can excuse the default of a trial-phase ineffective-assistance-of-counsel (IAC) claim if, as a practical matter, a state post-conviction proceeding was the only forum for a state inmate to raise it. In each case, the Court avoided mechanical readings of statutes or precedents in favor of interpretations that reflect the byzantine reality of modern habeas corpus review.

In the “innocence gateway” case, Floyd Perkins was serving a life sentence in Michigan. Perkins argued that he had new evidence proving his innocence: witnesses would say that another man was the killer, that the other man had bragged he had done it, and that the other man was trying to wash blood-stained clothes the day after the killing. Perkins had been convicted largely based on testimony of the other man, as well as two others who said they overheard Perkins admit his guilt. Perkins argued that his new evidence of innocence entitled him to merits review of his IAC claim, which was untimely under the one-year federal limitations period. He could not, however, show that he had acted with “due diligence” in bringing this evidence to the attention of the judge. He argued that new evidence of innocence should excuse the untimely filing, notwithstanding the technical defects in the petition.

by E. Sebastian Arduengo

Last month, U.S. Senator Patrick Leahy (D–Vt.) reintroduced the Gideon’s Promise Act of 2013 to address the problems plaguing the indigent defense system which have left the promise of Gideon v. Wainwright increasingly hollow for the poorest people in our society. The act would require states to use existing federal funds to improve the administration of criminal justice in a comprehensive, strategic way, and to collaborate with the Department of Justice and local authorities to devise a plan for adequately addressing indigent defense needs. If states refuse to comply then the Department of Jusice would have the power to take them to court to make sure that they are meeting their constitutional obligations.

But Leahy’s bill doesn’t go nearly far enough to address budget-related failings in our criminal justice system. With sequestration at the federal level, and years of budget cutbacks at the state level, we’re now to the point where years of political indifference to funding the judicial branch has affected the basic operation of the courts and the services that we expect them to provide.

This is a crisis that’s reached such endemic proportions that Chief Justice John Roberts made it a focus of last year’s state of the judiciary report, where he made the case that the federal courts were already being as cost-effective as they could possibly be, and warned that “significant and prolonged shortfall[s] in judicial funding would inevitably result in the delay or denial of justice for the people the courts serve.”

That scenario is already playing out in state and local courts across the country.

The effect of over a billion dollars of cuts in the last four years has been nothing short of devastating to the Los Angeles Superior Court system. Court officials plan to shutter a dozen courthouses and make an indeterminate number of staff layoffs. The only thing these courthouses will be used for now is for collecting traffic fines and administrative functions. The actual business of dispensing justice will be triaged at the remaining courthouses in the county, “where certain types of cases are heard at each remaining courthouse.”