Tuesday, May 3, 2016


Ethics Bureau Alumni Publish Essay on Equitable Tolling

A recently published essay written by three Yale Law graduates highlights the inequities that plague the courts' application of the federal Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) and that have, as a result, stripped many indigent prison inmates of their opportunity to contest their criminal convictions when their lawyers have committed misconduct or error.

Written by Jonathan Atkins ’15, Danielle Rosenthal ’13, and Joshua Weiss ’15, the paper critically examines the courts' equitable tolling jurisprudence under AEDPA, which establishes a total of a one-year statute of limitations for an inmate to file for federal habeas review after completion of the direct appeal and the state collateral review process. The essay, titled The Inequities of AEDPA Equitable Tolling: A Misapplication of Agency Law, was published in the Stanford Law Review in February 2016. The authors were all members of the Ethics Bureau at Yale (EBaY) during their time at the law school — a clinic that focuses in multiple ways on the professional responsibility of lawyers.

“What I learned early on as a clinic student is that our system of indigent criminal defense is rife with ethical failures, often resulting from under-funded public defense systems and under-qualified lawyers being tasked with post-conviction work that necessitates specialized, technical knowledge,” said Joshua Weiss. “The AEDPA statute of limitations is a prime example of these issues — it is a technical statutory issue that is regularly bungled by indigent inmates’ lawyers.”

Since EBaY focuses on capital cases that involve ethical violations by lawyers that could provide habeas relief, a significant portion of the casework relates to the AEDPA statute. And those cases are always gravely serious, involving life sentences or capital cases that are matters of life and death. Through this work, students noticed they were consistently crafting briefs with the same story — the lawyer failed to fulfill the client’s right to proceed and the law placed the consequence of the lawyer’s mistake on the client. As a result, the client lost his chance for federal habeas review and yet the lawyer was unlikely to suffer any repercussions.

“The core point of the piece is that the law in this area is theoretically unsound and morally untenable,” said Atkins.  “When a client on death row loses the opportunity to air his or her habeas claims in federal court on account of his or her lawyer's failings, it should not be the client's price to pay, quite possibly with his or her life.”

Since the law passed in 1996, lawyers for at least 80 petitioners sentenced to death have missed the AEDPA filing deadline, according to research by the clinic’s students. Courts relieved the client of the effect of the lawyer’s mistake regarding the deadline in less than one third of these cases, meaning that the vast majority never had their cases reviewed in federal habeas corpus proceedings, according to statistics the students cited in their essay.

“The law places an extreme burden on a client to pursue his own rights diligently,” said Weiss. “This is a requirement that the courts have abandoned in virtually any other context and that is particularly unsuited to this context, where the client has little to no access to communications to the outside world or legal research materials, and often suffers from mental or intellectual disabilities.”

The essay is intended to spotlight the critical flaws in the courts' equitable tolling jurisprudence under AEDPA, and advocates for changes to the tests courts apply in determining whether to toll the deadline for a negligent lawyer’s failure to file a timely habeas petition.

“This essay thus argues strenuously that it is insufficient for the relationship between lawyers and clients to be governed by formalisms that do not take into account the more urgent meaning of what it is to serve a client in desperate need,” state the authors in concluding the piece. “But the real solution lies in a fundamental reconception of the role of a lawyer as a more general matter: only when our society values effective legal counsel on par with the practical need for such counsel will the system of indigent defense, and of legal representation more broadly, come into line with its loftiest ideals.”

Weiss said he hoped the essay would prompt important conversations and ultimately lead to movement in the jurisprudence.

“I don’t harbor illusions that writing an essay will magically cause the law to change,” said Weiss, “but we hoped to make the case that change is needed here and perhaps convince some readers that the law ought to move in what we contend would be a more just and jurisprudentially sound direction.”

So far, the graduates have already seen their writing have an impact. Soon after the piece was published, Rosenthal received an email from a federal defender representing habeas petitioner Ronald Smith, whose case she and her coauthors discussed at length in the essay. The lawyer thanked her for “covering this complex and maddening issue,” particularly given that the State of Alabama was currently seeking an execution date for Mr. Smith. 

“That was most rewarding for me,” Rosenthal explained. “To have a lawyer who is tirelessly fighting for his client on death row take the time to read the piece and thank us for bringing attention to the issue easily made all of the years of hard work on the piece well worth it.” 

The Ethics Bureau advises lawyers on how to proceed when faced with professional responsibility questions under the applicable rules of professional conduct and other ethical dilemmas. Students draft amicus briefs in cases involving professional responsibility issues; help prisoner’s counsel develop ineffective assistance of counsel claims; and offer ethics advice to nonprofit organizations. EBaY is taught by Lawrence Fox, the George W. Crawford Visiting Lecturer in Law. It is one of the only clinics of its kind and in recent years has been involved with major rulings and cases.

Last summer the Supreme Court in Christeson v. Roper unanimously reversed a capital case in which the clinic had played a dual role, first preparing an expert witness affidavit with Mr. Fox opining on the lawyer's abandonment of the client and then an amicus brief in support of the court agreeing to hear the case. The court's opinion quoted the affidavit. 

Most recently, in March 2016, the clinic attended Supreme Court oral arguments in a case in which it had submitted an amicus brief. The case raised the question of whether Pennsylvania Supreme Court Chief Justice Ronald D. Castille should have recused himself from an appeal to the Pennsylvania Supreme Court by death-row inmate Terrance Williams from the trial court’s granting of habeas relief. Castille had served as the District Attorney of Philadelphia and personally authorized his subordinates to seek the death penalty against Williams while serving in that role. As of May 1, 2016, the case has not yet been decided.

"The Ethics Bureau at Yale has exceeded our wildest expectations,” said Larry Fox, who supervises in the EBaY. “Yale student work has been cited by the United States Supreme Court three times in cases granting relief to death row prisoners, the clinic has provided ethics advice to dozens of lawyers, and it has produced white papers and ethics opinions on a number of important issues. One thing is clear — the work of the clinic has demonstrated how important the topic of professional responsibility is."

For students working in the clinic, having this broad range of experience working on matters of great significance has been important as they embark on their own careers.

“My experience in EBaY contributes to my conviction that I want indigent criminal defense work to play an important role in my legal career, however it ultimately takes shape,” said Weiss.

“For me, the experience in EBaY has been hugely impactful on my (early) post-graduation life,” said Atkins. “While I don't deal directly with the same issues anymore, the fact is that every lawyer must grapple every day with how to carry out his or her duties to clients ethically and responsibly. It's not always straightforward or easy, especially when balancing many competing demands. To have an awareness of the ethical issues that complicate the practice of law as well as an appreciation for how significant the lawyer's responsibility is can't be anything but invaluable.”