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Washington Death Row Prisoners Get Habeas TRO

In the August, 1996, issue of PLN we reported the passage of the Anti-Terrorism and Effective Death Penalty Act of 1996 (habeas law). One of the new law's provisions is that it has an option whereby a state's death penalty cases can be placed on a judicial fast track, whereby all federal habeas petitions must be filed within six months of exhausting state remedies, courts must promptly rule on the petitions, and few if any stays of execution will be granted. However, before a state can "opt in" and take advantage of these speedy resolution provisions for capital cases (readers should note these provisions apply only to death penalty cases), it must take measures to ensure a fair and complete state post-conviction appeal process. This requires a rule or statute governing the standards of competency for counsel in capital cases, a mechanism for the appointment and compensation of counsel; payment of litigation expenses and a "unitary review" system whereby petitioners can raise collateral claims on direct review in state court.

Shortly after the habeas law's passage on April 24, 1996, Washington state's ethically challenged attorney general Christine Gregoire announced that she would place Washington death penalty cases on a fast track. Seattle attorney Todd Maybrown filed a § 1983 suit on behalf of three Washington death row prisoners who have exhausted their state remedies but not yet filed habeas petitions in federal court. Their complaint seeks declaratory and injunctive relief from the fast track provisions of the habeas law.

On July 11, 1996, federal district court judge Franklin Burgess in Tacoma issued a Temporary Restraining Order (TRO) holding that the plaintiffs had shown a likelihood of prevailing because Washington has yet to establish any rules or statutes to comply with the "opt in" provisions of the new habeas law. The court relied largely on Ashmus v. Calderon, _F. Supp._ (5/3/96 ND CA) in which judge Thelton Henderson issued a TRO enjoining the state of California from applying the fast track provisions to its death row prisoners because it had not met the statutory requirements.

In his order Judge Burgess ordered that, pending disposition of the case and a show-cause order, defendant Gregoire and her agents were "hereby restrained and enjoined from trying or seeking to obtain for the state of Washington the benefits of the provisions of Chapter 154 of title 128, United States Code, in any state or federal proceeding involving any prisoner under sentence of death by the state of Washington." The order is unpublished. See: Benn v. Gregoire, Tacoma Case No. C96-5589FDB, (WD WA 1996).

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Benn v. Gregoire


 

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