Last Fall the Texas Court of Criminal Appeals got some deservedly bad press for allowing the execution of a death row inmate to proceed because the appellate lawyers arrived at the courthouse door 20 minutes late.

Mind you, the defendant had not yet been killed – but his lawyers ran into some problems getting to the courthouse on time, and missed their deadline by twenty minutes. They called beforehand to let the Court know they were on their way, but apparently Sharon Keller was late for happy hour – or something, I forget the exact details – and at 5:20 p.m. they were literally shut out.

So, this morning they decided to fix the problem. They adopted the innocuously titled Miscellaneous Rule 08-101 which moved the deadline for filing a stay of execution or subsequent writ application to 48 hours before 6 p.m. on the scheduled execution date.

Excellent. Sounds like the problem is solved. Unless you take a moment to think about it.

A deadline is a deadline. (If that sounds almost tautological, you got me.)

All the court has done is move the goalpost. You can miss a 6 o’clock Wednesday deadline just as easily as you can miss a 5 o’clock Friday deadline. It’s the same thing.

To be fair, they threw this in:

Special Requirements for Untimely Petitions or Other Motions.

Counsel who seek to file an untimely motion for a stay of execution or who wish to file any other untimely motion requesting affirmative relief in an impending execution case, must attach to the proposed filing a detailed explanation stating under oath, subject to the penalties of perjury, the reason for the delay and why counsel found it physically, legally, or factually impossible to file a timely request or motion.

Counsel is required to show good cause for the untimely filing.

OK. Admittedly, the fact that death penalty lawyers are now given a few extra hours to explain why they were late might make a difference some time in the future.

But as often as we execute people in Texas, who wants to bet that we will be reading future court decisions that reject a lawyer’s reasons for an untimely appeal because they didn’t prove that it was physciall, legally or factually impossible for them to make it to the Courthouse steps by 6 p.m.?

[Hat Tip: Kiele Linroth Pace for originally posting about the new rule on the Austin Criminal Defense Lawyers ListServ]