The Atlantic

Debunking the Court’s Latest Death-Penalty Obsession

The conservative majority complains that capital-defense lawyers are making up claims at the last minute. It’s wrong.
Source: Reuters / Jason Reed

On March 29, 1994, the Texas lawyer Mandy Welch rose to argue before the Supreme Court on behalf of a condemned prisoner named Frank McFarland.

Justice Antonin Scalia, however, wanted to put Welch’s law firm, the Texas Resource Center, on trial. McFarland’s petition, Scalia said, had been filed late in the process, disrupting Court procedure. He was not interested in her explanation: Her firm had originally tried to recruit volunteer counsel for McFarland, and finally had to take him on itself—one of 220 death-penalty cases being handled by 18 young lawyers. “I just want you to know that I am not happy with the performance of the Texas Resource Center in the cases that come before me as circuit justice,” Scalia said.

“I wasn’t prepared” for Scalia’s wrath, Welch told me in an interview recently. “It was easy for me to respond with the feeling that if you understood what happened, you would know that we had no control over any of [the timing].” (The case concerned McFarland’s right to counsel for a habeas corpus petition; though he won on that issue, he was eventually executed anyway.)

Scalia’s ire against the capital-defense bar has survived his death. This term, members of the new conservative majority have been in high dudgeon about death appeals. The conservatives’ complaints home in on a specific point: Capital punishment in the U.S. would go off smoothly if lawyers would just stop making up claims at the last minute. Having

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