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An Utterly Baseless Action by a Federal Public Defender

Federal public defenders are screaming loudly across the country that the sequester has cut their budgets below what is necessary to perform their essential functions.  Yet some FPDs continue to squander public funds filing claims they should not be filing.

Edward Schad's long-overdue execution is scheduled for tomorrow in Arizona.  The US Supreme Court opinion affirming the judgment on direct appeal 22 years ago is here.

In addition to all the challenges to the court proceedings, the federal public defender filed an action attacking the executive clemency proceedings.  The primary US Supreme Court precedent on such an attack is Ohio Adult Parole Authority v. Woodard (1998).  This is a 4-4-1 split opinion, so we have to pick our way through two opinions to decide what has been decided and what is open.  Judicial review of executive clemency, a core function of a coordinate branch of government, is allowed either (1) never, or (2) only under extreme circumstances, such as decision by flipping a coin or cases of bribery.  Which of these alternatives is correct is unresolved, but the law is certainly no more favorable to the inmate than (2).

As is evident from the Ninth Circuit's opinion in Schad's case, nothing remotely close to alternative (2) is involved in this case.

So why were scarce resources, needed to perform the FPD's core functions, squandered on this patently meritless action? 
The capital defense bar has developed a culture in which lawyers are expected to throw everything possible against the wall, no matter how frivolous, no matter how clearly guilty the defendant is, and no matter how clearly deserved the punishment is.  This has to stop, at least where it is being done at taxpayer expense.  Capital inmates should receive competent representation, not scorched-earth litigation.

BTW, Schad has applied to SCOTUS for a stay of execution to hear his challenge in his habeas case, not the civil action described above, in application 13A350.  He is represented by an AFPD from Tennessee, a long way from Arizona.

Update (10/9):  Supreme Court denials are here, here, and here.  No dissent is noted in any of them.

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