The Supreme Court Investigates Apparently Unauthorized Cert. Petition in Capital Case

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Monday, the Supreme Court denied a petition for certiorari filed in Ballard v. Pennsylvania. One interesting aspect of the case is that the defendant on whose behalf the petition was filed says that he never authorized it to be filed, and the lawyer who filed it says that he is not the inmate’s lawyer. The Supreme Court has asked the lawyer to explain himself.

First, a bit of background. Ballard is a capital case. The defendant was charged with stabbing four people to death, including his ex-girlfriend. He was on parole at the time, having previously been convicted of murdering another man. He pled guilty to four counts of first-degree murder, and after a sentencing hearing, a jury imposed a sentence of death. He appealed his conviction in the state courts. The Pennsylvania Supreme Court affirmed in November 2013. Com. v. Ballard, 80 A.3d 380 (Pa. 2013).

Ballard was represented at trial and in his state court appeals by a public defender. According to the public defender, after the state supreme court decided the case, he wrote Ballard and advised him of his legal options. The normal course in a capital case is to seek Supreme Court review of the state court’s decision, and then to file a federal habeas petition. But Ballard “wrote back and said he did not intend to pursue any further appeals.” So the public defender didn’t file anything.

In February 2014, Marc Bookman of the Atlantic Center for Capital Representation in Philadelphia filed a motion for extension of time with the Supreme Court on Ballard’s behalf. In March 2014, he filed a petition for a writ of certiorari with the Court. The Court’s docket sheet lists Bookman as Ballard’s lawyer.

In early June, Ballard wrote to the Supreme Court. The text of his letter is available here. In a nutshell, it asserts that he learned of the filing only through the media, that he “never authorized anyone to file anything on [his] behalf,” and that Bookman (who he described as a “Federal Defender”) acted without his authorization and without his knowledge.

The Court denied the petition and ordered Bookman to respond to Ballard’s letter within 40 days. Bookman has apparently told a local newspaper that he was not Ballard’s attorney, and has declined further comment.

As to the possibility of a future federal habeas filing, it appears that attorneys with the Federal Defender’s office have contacted Ballard and have encouraged him to seek federal review. According to this article, Ballard “has refused to allow the federal defenders to represent him and has instructed the state prison system to bar them from visiting him.” The district attorney says that he will “file a complaint with the disciplinary board” if the federal defender files a petition on Ballard’s behalf.

Perhaps Bookman’s response to the Supreme Court will offer a satisfactory explanation of the situation. For example, perhaps Ballard did authorize Bookman to seek Supreme Court review, and lied about it in his letter. Or perhaps the two had an ambiguous conversation that left Bookman believing that he was authorized to go forward while Ballard believed that no such decision had been made. Ballard had previously indicated that he wanted to appeal, and a woman with whom he corresponds recently said that his current intentions are “confusing to her, and could be merely a ‘tactic’ in his legal efforts.” (See the end of this article.)

But if Bookman is in fact an interloper who filed a petition on Ballard’s behalf but without his approval, Bookman is in serious ethical trouble. Whether to appeal is a client’s decision, not a lawyer’s. It certainly isn’t a decision to be made by a lawyer who isn’t involved in the case. Even if there were doubt about Ballard’s competence – an issue that arises frequently when a death-sentenced defendant seeks to drop his appeals – the public defender who represented him would be in the best position to raise the issue, not Bookman. And even if Bookman thought that the public defender was dropping the ball on that front, simply filing a petition on behalf of Ballard without raising the issues of competency and representation would not be the way to do it.

Anyone see anything else in this case? Any other possible explanations for Bookman’s alleged conduct? It’s interesting to me that the Supreme Court has decided to address the issue itself rather than remanding it to a lower court. Stay tuned.

2 comments on “The Supreme Court Investigates Apparently Unauthorized Cert. Petition in Capital Case

  1. Prof. Welty,

    Yes, I do see something else in this case — that the “client” can be used as cover for The Cause.

    http://www.crimeandconsequences.com/crimblog/2014/06/the-rationale-for-defense-lawy.html

    Thank you for your discussion. I hope we’ll see more on legal blogs.

    Bill Otis
    Adjunct Professor of Law
    Georgetown University Law Center

  2. Marc Bookman was my classmate at UNC. I see him from time to time. He is a good man and a good lawyer. He has high ethical standards.

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