When should equitable tolling be available in death penalty cases?

By Anna Christensen
on Mar 4, 2010 at 10:14 am

Below, Harvard Law School’s Kate Wevers recaps Monday’s oral argument in Holland v. Florida.  Kate’s preview of the argument is available here.  Check the Holland v. Florida (09-5329) SCOTUSwiki page for additional updates.

At Monday’s oral argument in Holland v. Florida, the Court focused on trying to identify a test that would delineate cases in which equitable tolling might be appropriate from cases in which it would not.

Todd Scher, arguing for petitioner Albert Holland, concentrated on the facts of the case.  He argued that whether equitable tolling is available should be determined on a case-by-case basis, without resort to categorical rules.  In this case, he continued, the “confluence of events” – the attorney’s negligence, his assurances to Mr. Holland, Mr. Holland’s diligence, and Mr. Holland’s efforts to get rid of the attorney – warranted equitable tolling.

Several Justices, however, were clearly concerned about where to draw the line in future cases.  Mr. Scher faced a number of questions regarding the line between “negligence” and “gross negligence” – a distinction that Justice Alito described as “ephemeral.”  Justice Sotomayor asked whether the line between negligence (of whatever kind) and intentional, dishonest, or bad faith conduct might be more workable, while Justice Kennedy suggested that it could be unfair to clients who had been the victims of “mere” negligence to draw a line between “gross negligence” and “negligence.”  Justice Kennedy also questioned the requirement that a client have acted diligently, reasoning that such a test would place an ignorant bewildered client in a worse position than a knowledgeable “pesky” client, when arguably it should be the other way around.  (And during the state’s oral argument, Justice Breyer queried why negligence was relevant at all, suggesting that the inquiry should instead be whether the prisoner was diligent, the circumstances were extraordinary, and the result is fair.)

Scott Makar, Florida’s Solicitor General, faced numerous hypothetical scenarios challenging the state’s position that equitable tolling should never be available.  Justice Breyer queried whether equitable tolling should be denied even when the missed deadline resulted from an earthquake, fire, flood, or counsel being kidnapped.  Although Mr. Makar initially maintained that it should be, by the end of his argument he appeared to concede that equitable tolling might be available in situations external to the attorney-client relationship.   Justice Breyer also suggested that it would be reasonable to read the statute as allowing for some flexibility to account for unusual “human circumstances” –such as counsel becoming “deathly ill.”  But even if equitable tolling were sometimes available, Mr. Makar emphasized, it should be limited to extreme attorney misconduct or incompetence – which in his view was not present in this case.  That argument, however, drew a question from the Chief Justice regarding why a missed deadline is not extreme attorney incompetence.

The mood of the Court was perhaps best summarized by the Chief Justice, who commented during the state’s argument that it is very hard to argue against equitable tolling, but that there is also a need for a “constraining principle” so as not to “do away with” the statute of limitations entirely.