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Kindler, Escape, and Procedural Default

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On November 2, the Supreme Court will hear oral argument in the Philadelphia capital case of Beard v. Kindler. The case involves whether a federal habeas court should hear a claim that the defendant defaulted in state court. The case is all too common in one respect and highly unusual in another. It is common in that the federal court cavalierly brushed aside the state default rule as "inadequate" with its own inadequate analysis of that issue. The case is unusual, though, in that the default is not some omission by defendant's lawyer in arguing his case but rather defendant's own action in escaping from custody and fleeing to Canada. CJLF's brief in the case is here. The warden's reply brief is now in. After discussing the odd notion that discretionary rules are inadequate, it contains this gem of a paragraph:

Apparently recognizing this dilemma, Kindler resorts to mere chutzpah: he blames the Commonwealth, asserting that his forfeiture should be forgiven in federal court because the state is just trying to execute him without any review at all. But it was not the Commonwealth's idea to short-circuit the challenge to Kindler's sentence; he arranged all that by himself. He essentially said to the state courts, "so long, suckers," and now demands to know where his appeals went. They went across the border with him. That was the "appeal" he chose.

Perhaps Kindler will be the seminal case of the "so long, suckers" doctrine.

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The real pity, of course, is so basic a proposition has to be litigated at the Supreme Court.

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