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June 2008

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This article is in the news archives --- for current news go to the Third Branch News.


2255 Project Offers Help

The federal judge was looking at a familiar case. Nearly a year before, he’d presided over the criminal case of a man who had been found guilty and received a death sentence. Now the case was before the judge again, as a 28 U.S.C. § 2255 case, essentially asking the judge to find any errors or mistakes in the way the case was handled that would lead to a new trial or penalty phase hearing.

Such capital § 2255 litigation is a relatively new field. According to Ruth Friedman, Director of the Federal Capital Habeas Project, informally known as the “2255 Project,” fewer than a dozen such matters have been litigated to completion since the re-emergence of federal death penalty cases in 1988. However, an increasing number of federal capital cases have entered the post-conviction state.

“The number of federal death row cases is growing,” said Friedman. “In 1998, there were 20 individuals on federal death row, five of whom were in § 2255 proceedings. As of 2008, there are 53 individuals on federal death row, and 25 inmates who are in post-conviction proceedings.”

A § 2255 case is shorthand for cases in which a prisoner under the U.S. Criminal Code claims the right to be released on the ground that the sentence “was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack . . .” Uniquely in federal proceedings, the same judge who determined the sentence also considers the § 2255 motion.

“In the typical § 2255 case, a federal judge is called upon to review proceedings that occurred in his or her own courtroom,” said Judge John Gleeson, chair of the Judicial Conference Committee on Defender Services. “It’s human nature to think we don’t make errors, and so the evaluation of claimed trial errors, and the inclination to appoint counsel or experts to develop ways to attack the conviction or sentence, might not be the same as it is when we’re handling a challenge to a state court conviction. But this is the last proceeding available before a death sentence is executed. It is very important that our handling of the representation reflect that and also reflect the unique nature of capital post-conviction litigation.”

The Committee on Defender Services saw that judges presiding over the cases needed help. “The federal system is relatively new to collateral attacks on federal death sentences under § 2255 cases. They are different from direct appeals and require different skills,” said Gleeson.

In December 2007, the Committee funded the 2255 Project initiative. It provides consultation and assistance to courts adjudicating, and defense counsel litigating, capital cases pursuant to § 2255.

“The prompt appointment of qualified counsel to represent defendants in these cases has become critical,” Gleeson wrote to all federal district and magistrate judges, introducing the Federal Capital Habeas Project. “In addition to death penalty law, counsel must have expertise in the substantive and procedural habeas jurisprudence developed through § 2254 cases, as well as the law governing § 2255 proceedings. Even the most experienced and learned trial advocates may not have the knowledge and skills necessary for capital post-conviction litigation.” Gleeson recommends that courts consult with the 2255 Project early in a death penalty case to identify attorneys for appointment who have the appropriate experience.

“Death penalty cases are very specialized and there is recognition that quality counsel is needed,” said Friedman. “We can recommend to the courts counsel with the required expertise and then offer those lawyers support in the development of the case. Counsel in these cases will need to be familiar with both procedural and substantive law and with years of death penalty and habeas jurisprudence. As these cases can be very expensive, there are also funding issues with which we can assist both the courts and counsel. Invariably, there are very long records, often with many witnesses, and there are sometimes multiple trials with which the lawyers must become familiar. And there’s an additional pressure, in that the minute certiorari is denied by the Supreme Court, the clock starts running for the filing of the § 2255. With only a year to bring the case, qualified counsel should be ready to go as soon as certiorari is denied.”

Friedman draws on 20 years of experience in the field and is a nationally recognized expert in habeas corpus and death penalty litigation. She is well suited not only to identify counsel with the necessary skills but to help train lawyers to handle these cases.

“There are not a lot of attorneys qualified to take capital habeas cases,” she said, “and many of those who are, have their plates full.” That’s why the 2255 Project also offers training for lawyers through a series of seminars.

The Project hopes to monitor the status of all death penalty cases.

“We hope to get in touch with the attorneys to offer assistance,” said Friedman. “Our help is free. Run your ideas by me. Let us take a look at the pleading. We’ll even help with case budgeting. We’ll respond to every request for help.”

“We want to encourage judges to understand the gravity of the § 2255 situation,” adds Gleeson. “Speak to the defender, speak to the 2255 Project, and get an attorney who is up to the task. If the system is to retain its integrity, we need to make sure people get the representation they deserve.”