Press Release

Cooley Files Amicus Brief to Protect Habeas Rights in Capital Cases

August 28, 2020

Washington, DC – August 28, 2020 – Cooley has filed an amicus brief in the US Court of Appeals for the DC Circuit to ensure habeas corpus petitions from individuals sentenced to death receive appropriate state and federal review. The brief, filed on behalf of The Innocence Network and the Southern Center for Human Rights, challenges a decision by US Attorney General William Barr that would make Arizona the first state whose condemned citizens would receive only truncated federal review. As Cooley’s brief demonstrates, such a decision would profoundly limit the ability of people who were wrongfully convicted or sentenced, or who were victims of racial injustice in their capital cases, to challenge those dire outcomes. Cooley lawyers contributing to the amicus brief include Adam Gershenson, Kyle Wong, Barrett Anderson and Zach Sisko.

“The attorney general’s certification is literally a matter of life and death for capital inmates,” said Gershenson. “If they cannot fully and fairly challenge unconstitutional verdicts and sentences, it will be a loss for every aspect of the justice system. We sincerely hope our brief in support of the petitioners can help the court reach the right conclusion – that the attorney general’s certification should be reversed.”

The dispute concerns Chapter 154 of the Antiterrorism and Effective Death Penalty Act. Chapter 154 provides that, if a state ensures that people sentenced to death receive competent counsel with sufficient resources to represent death row inmates in state habeas proceedings, the Attorney General may then certify those procedures to provide the state with certain benefits. Those benefits include curtailing federal post-conviction review by cutting the statute of limitations for a habeas petition from the standard one year to a foreshortened 180 days, among other significant limitations on petitioners. The plaintiffs challenging the certification, which are the Office of the Federal Public Defender for the District of Arizona and individuals whom Arizona has sentenced to death, contend that the state’s process fails to meet these essential, minimum requirements for certification under Chapter 154.

Cooley’s amicus brief argues that to receive the procedural benefits of Chapter 154, states must establish a process that in practice – not just in theory – provides competent, adequately resourced counsel to capital defendants in their state post-conviction proceedings. Arizona’s mechanism, however, does not in theory or in practice provide for this adequate counsel. As a result, decisions like the attorney general’s compromise both state and federal review and undermine the very purpose of habeas corpus review – to catch and remedy profound injustices.

Read the amicus brief

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