In today’s New York Times, former Chief Justice Norman Fletcher has written an editorial denouncing the upcoming execution of the Georgia inmate sentenced to death in 1990. Chief Justice Fletcher is particularly concerned about the fact that the inmate lost out on the possible federal review of this case. The inmate, while representing himself, missed the deadline for federal habeas corpus by eight days. Georgia is one of the states that fails to recognize the right to counsel after the direct appeal, even on sentences of death.

For Chief Justice Fletcher, the tragedy is even worse because there were potential issues of merit in the habeas corpus.

Justice Fletcher sheds light on not only a troubling issue in death penalty cases in Georgia. He also discusses the fact that there is no right to counsel at the habeas corpus stage in spite of the fact that habeas corpus is a complex process that is confusing even to attorneys. In Georgia, the defendant must raise ineffective assistance of counsel at the motion for new trial phase if new counsel is appointed to the case or if the defendant is pro se on his direct appeal. In the event that the same lawyer who handles the appeal also handled the trial, then ineffective assistance of counsel is relegated to the habeas corpus stage, where the inmate does not have the right to counsel.

Georgia should have a regime in place and allows a person under the sentence of death to have the right to counsel at every stage of the proceedings. And there should be a process where a court could appoint counsel on potentially meritorious habeas corpus cases.. The judge could act as a clearinghouse for those cases where an appointed attorney could be of assistance (similar to what exists in the federal system). Right now, where inmates cannot afford counsel, habeas corpus petitioners either must go it alone or rely upon a volunteer lawyer. When no volunteer lawyer is available, then a person with potentially meritorious issues could be literally killed for want of a lawyer.

As the legislature considers criminal justice reform, the right to counsel in at least some habeas cases is worth a look.