Lee Kovarsky

  • July 5, 2017
    Guest Post

    by Brandon L. Garrett, Justice Thurgood Marshall Distinguished Professor of Law, University of Virginia School of Law and Lee Kovarsky, Professor of Law University of Maryland Francis King Carey School of Law. Professors Garrett and Kovarsky co-author a habeas corpus casebook, Federal Habeas Corpus: Executive Detention and Post-conviction Litigation, published by Foundation Press. 

    This week, in Davila v. Davis, the Supreme Court blocked a promising avenue for criminal defendants to enforce their rights to counsel. After Davila, when a state habeas lawyer forfeits an argument that an inmate was deprived of the constitutional right to appellate counsel, the inmate is out of luck. The holding came in a death penalty case, but the rule applies against noncapital defendants too.

    The fact pattern was familiar: trial counsel objected to an unlawful jury instruction, but appellate and state habeas lawyers ignored the claim. And the instructional error was really important, because it likely allowed Davila to be convicted of capital murder based on insufficient evidence of intent. Texas permits the death penalty to be imposed for multiple intentional killings, and has a transferred intent rule providing that, in situations where someone trying to murder one person kills another, the killing is still “intentional.” Erick Davila killed two people, but the evidence strongly suggested that he had tried to kill only one person—who was not a victim. Davila means that, had the scenario involved trial counsel’s failure to challenge the instruction rather than appellate counsel’s failure to appeal the issue, the claim could be revived in federal court. But because appellate counsel made the mistake, it cannot.

    What a mess.

  • May 30, 2013
    Guest Post

    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.

  • August 2, 2012

    by Jeremy Leaming

    In summer 2002, the U.S. Supreme Court ruled that it is unconstitutional for states to execute mentally disabled people. But its opinion in Atkins v. Virginia has failed to take hold in Texas, a state that as University of Colorado law school professor Paul Campos puts it “likes killing people, and it’s not terribly particular about whom it kills.”

    Campos is not kidding. The state under its current governor, Rick Perry (pictured), leads the way in killing people, far outpacing other death penalty states. And as Campos highlights the state has found a way to circumvent Supreme Court precedent and not only kill mentally disabled inmates, but people “represented by frighteningly incompetent lawyers, and almost certainly innocent.”

    Recently the Supreme Court declined to intervene and stop Texas from executing Yokamon Hearn, who suffered from brain damage and was poorly represented at trial. The Texas Defender Service had fought to stop the execution of the mentally disabled Hearn.

    The state is on the verge of executing yet another mentally disabled man, Marvin Wilson. Wilson’s attorney Lee Kovarsky, an assistant professor of law at the University of Maryland, has urged the Supreme Court to intervene to stop the execution set for Aug. 7. Wilson was convicted of allegedly killing a drug informant, but Kovarsky’s petition for a writ of certiorari casts serious doubt on that.

    Citing Atkins, Wilson’s attorney notes that Donald Trahan, a neuropsychologist appointed by the court to examine Wilson, diagnosed him as suffering “mental retardation.” Wilson, Kovarsky continues, “received a 61 on the Wechsler Adult Intelligence Scale …, recognized as the gold standard of intellectual assessment. The evaluation places Wilson well below the “first percentile of human intelligence.”

    As Campos noted Wilson has the “mental development of the average first-grader.” But, Campos continued, the “most shocking aspect of this case is that the state of Texas has never even bothered to present any evidence contesting” Wilson’s diagnosis.

    Instead Texas has been able, thanks to the ultraconservative U.S. Court of Appeals for the Fifth Circuit, to apply its own standards in determining whether a death row inmate is mentally disabled. Texas’ factors for determining whether a person is mentally disabled are not recognized by the American Association on Intellectual and Development Disabilities. Kovarsky writes that the factors Texas employs to determine mental illness “lack any scientific foundation, violate the basic diagnostic principle that adaptive strengths and limitations coexist ….”