August 31, 2010
A new Supreme Court decision joins the case law recognizing that appellate lawyers are different from other litigators. In In re Morgan, the Court yesterday fashioned a procedure for deferring its rulings on certain state habeas corpus petitions to preserve the rights of death-penalty inmates to seek federal habeas corpus relief. The procedure addresses a threat to those rights caused by a combination of federal habeas timelines for the exhaustion of state remedies and too few attorneys available to handle state habeas corpus petitions.
The Court explained that the lack of legal representation for habeas petitions was a matter of both increased demand (a more than tripling of the number of death row inmates between 1987 and 2007) and a scarcity of supply. On the supply side, the Court noted the “serious shortage of qualified counsel willing to accept an appointment as habeas corpus counsel in a death penalty case.” One of the reasons for the shortage, the Court said, is that “work on a capital habeas petition demands a unique combination of skills. The tasks of investigating potential claims and interviewing potential witnesses require the skills of a trial attorney, but the task of writing the petition, supported by points and authorities, requires the skills of an appellate attorney. Many criminal law practitioners possess one of these skills, but few have both.”
We find this dichotomy of skills true for civil litigation, too. Many trial lawyers get the hives if they’re stuck in the law library for more than a half hour at a time. On the other hand, we can write a mean brief, but don’t ask us to depose an expert witness or pick a jury.