Anthony Wainwright, Executed June 10 in Florida, Lost Federal Appeals Due to Lawyers’ Mistakes and Indifference and Was Denied Counsel of His Choice

When a lawyer makes a mis­take, who suf­fers the con­se­quences? The ​“agency prin­ci­ple” says the client does, under the ratio­nale that clients choose their lawyers and autho­rize their actions. But courts uni­ver­sal­ly apply this prin­ci­ple to all attor­ney-client rela­tion­ships, includ­ing when indi­gent, iso­lat­ed death-sen­tenced pris­on­ers are appoint­ed attor­neys by the state, with lit­tle or no means of con­trol­ling their lawyers’ actions. 

Many com­men­ta­tors have not­ed the prob­lems apply­ing this the­o­ry to those on death row. Building on work by Professor Eric M. Freedman and Paul Sessa, DPI recent­ly doc­u­ment­ed cas­es where attor­neys missed fil­ing dead­lines, result­ing in courts dis­miss­ing fed­er­al appeals for over six­ty men.

Last night, Anthony Wainwright became the thir­ty-sec­ond per­son to be exe­cut­ed in the mod­ern death penal­ty era with­out ever hav­ing a fed­er­al court review his con­sti­tu­tion­al claims. One of his attor­neys missed his fed­er­al fil­ing dead­line, while anoth­er refused to chal­lenge Mr. Wainwright’s exe­cu­tion — and courts pun­ished Mr. Wainwright for his attor­neys’ fail­ures while block­ing him from pro­ceed­ing with the attor­ney of his choice.

Attorney James T. Hobson was appoint­ed to rep­re­sent Mr. Wainwright in fed­er­al habeas pro­ceed­ings but missed the fil­ing dead­line by six days. Mr. Wainwright’s only option was to con­vince the court he deserved ​“equi­table tolling,” pro­vid­ing him with an exten­sion of the dead­line ​“in the inter­ests of jus­tice.” But Mr. Wainwright was not appoint­ed a new attor­ney for this pur­pose; Mr. Hobson made the argu­ment. Federal courts lat­er agreed this was a con­flict of inter­est. Mr. Hobson ​“was the attor­ney who missed the fil­ing dead­line and was placed in the posi­tion of argu­ing his own inef­fec­tive­ness,” the Eleventh Circuit Court of Appeals wrote. Mr. Hobson ​“avoid­ed dis­cus­sion of his own per­for­mance” and instead blamed the error on a low­er court deci­sion being mailed to the wrong address. 

Despite find­ing a con­flict of inter­est, the fed­er­al courts did not give Mr. Wainwright anoth­er chance to argue for equi­table tolling with a new attor­ney, and they dis­missed the appeal on the grounds that Mr. Hobson’s ​“neg­li­gent mis­cal­cu­la­tion of the fil­ing dead­line — though trou­bling — was not extra­or­di­nary.” The Eleventh Circuit acknowl­edged that the peti­tion Mr. Hobson did file ​“con­tained typo­graph­i­cal and fac­tu­al errors, and only includ­ed four case cita­tions,” but held that ​“those short­com­ings demon­strat­ed neg­li­gence” rather than will­ful mis­con­duct. Mr. Hobson was lat­er dis­ci­plined by the Florida Bar for miss­ing anoth­er fil­ing dead­line in a separate case. 

Mr. Wainwright also argued that Mr. Hobson had ​“mis­rep­re­sent­ed his expe­ri­ence and qual­i­fi­ca­tions” in cap­i­tal cas­es, which ​“led to him being hired and paid $25,000 by a char­i­ta­ble orga­ni­za­tion” to argue Mr. Wainwright’s state post-con­vic­tion and fed­er­al appeals. According to the Eleventh Circuit, ​“the prob­lem is that there is no ​‘causal link’ between that ​‘appar­ent deceit’ and the sub­se­quent untime­ly fil­ing of the habeas cor­pus petition…[a]nd with­out that link, any ​‘appar­ent deceit’ on Mr. Hobson’s part does not pro­vide a basis for…relief based on equi­table tolling.” As a result, no fed­er­al court ever con­sid­ered the mer­its of seri­ous con­sti­tu­tion­al issues in Mr. Wainwright’s case, such as whether his tri­al coun­sel had been effec­tive, whether the pros­e­cu­tion with­held mate­r­i­al evi­dence from the defense, or whether Mr. Wainwright had intel­lec­tu­al dis­abil­i­ty or brain impair­ments that would exempt him from the death penalty.

It is no acci­dent that Mr. Wainwright faced these rep­re­sen­ta­tion issues in Florida, which alone accounts for over one-third of missed dead­lines com­piled by Professor Freedman and Mr. Sessa. The state’s fail­ure to pro­vide com­pe­tent coun­sel to death-sen­tenced pris­on­ers can be traced to a cost-sav­ing scheme in the late 1990s. The leg­is­la­ture cre­at­ed a reg­istry of attor­neys to rep­re­sent cap­i­tal clients, includ­ing attor­neys with lit­tle death penal­ty expe­ri­ence, while simul­ta­ne­ous­ly cut­ting funds for ded­i­cat­ed cap­i­tal defense offices. Most of the missed dead­lines occurred in cas­es where reg­istry lawyers were appoint­ed. Other Florida pris­on­ers who lost their chance for fed­er­al review because their attor­neys missed dead­lines include Jeffrey Hutchinson, who was exe­cut­ed May 1, and Mr. Wainwright’s code­fen­dant Richard Hamilton, who died on death row in 2023. Mr. Hamilton was held respon­si­ble for his attorney’s fail­ure to file in time even though the judge had giv­en the par­ties the wrong filing date. 

Several years after Mr. Hobson missed the fed­er­al dead­line in 2005, Florida appoint­ed reg­istry attor­ney Baya Harrison III to rep­re­sent Mr. Wainwright in fur­ther state pro­ceed­ings. But by the time Gov. Ron DeSantis signed Mr. Wainwright’s exe­cu­tion war­rant this spring, Mr. Harrison had not per­son­al­ly spo­ken with Mr. Wainwright in over a decade of rep­re­sen­ta­tion. He had repeat­ed­ly waived his client’s rights with no con­sul­ta­tion and declined oppor­tu­ni­ties to pur­sue new avenues of appeal. On May 9, the Florida Supreme Court gave Mr. Wainwright 11 days to file any peti­tions chal­leng­ing his sched­uled exe­cu­tion, but all Mr. Wainwright heard from Mr. Harrison was silence. Instead of call­ing his client, Mr. Harrison mailed him a let­ter that took ten days to arrive because of an incorrect address. 

Meanwhile, Terri Backhus, a retired attor­ney with decades of cap­i­tal habeas expe­ri­ence who had pre­vi­ous­ly worked with Mr. Wainwright, sub­mit­ted a pro bono peti­tion on Mr. Wainwright’s behalf along with his signed con­sent to her rep­re­sen­ta­tion. But Mr. Wainwright then faced a ​“per­verse” prob­lem that is all too com­mon in these cir­cum­stances: the court refused to accept the fil­ing with­out the approval of Mr. Harrison, who was still coun­sel of record, and refused to con­sid­er the client’s request to replace Mr. Harrison as coun­sel. When the court told Mr. Harrison the peti­tion would be dis­missed unless he approved it, he refused to do so. He did not file any peti­tion of his own.

Ms. Backhus appealed Mr. Wainwright’s dis­missed peti­tion in state and fed­er­al court, but state pros­e­cu­tors suc­cess­ful­ly fought at every turn to deny her assis­tance in favor of Mr. Harrison’s inac­tion. A group of orga­ni­za­tions includ­ing the Florida Association of Criminal Defense Lawyers, the Florida Justice Institute, and Conservatives Concerned sub­mit­ted eth­i­cal argu­ments, urg­ing the U.S. Supreme Court to stay Mr. Wainwright’s exe­cu­tion and rec­og­nize Ms. Backhus as his cho­sen coun­sel so that his claims could be con­sid­ered. 

The ​“Florida court gave uni­lat­er­al author­i­ty to a lawyer who had no time or desire to pre­pare a habeas peti­tion him­self and who opposed allow­ing Ms. Backhus to file the one that Mr. Wainwright autho­rized her to pre­pare,” the group wrote. “[P]redictably, in clos­ing the cour­t­house door to Mr. Wainwright’s cho­sen attor­ney, the Florida Supreme Court denied Mr. Wainwright access to the state supreme court’s habeas process altogether.” 

The ACLU also filed a brief in sup­port of Mr. Wainwright that con­nect­ed his case to Florida’s flawed reg­istry sys­tem, which is ​“plagued by wide­spread break­downs in cap­i­tal rep­re­sen­ta­tion.” The ​“con­sti­tu­tion­al issues raised here…are part of a sys­tem in which the State forces indi­vid­u­als under a death sen­tence to be rep­re­sent­ed by assigned coun­sel, and a larg­er pat­tern of those unac­count­able reg­istry lawyers waiv­ing claims, fil­ing ​‘the wrong claims at the wrong time,’ and lack­ing the ade­quate train­ing need­ed to rep­re­sent peo­ple con­demned to be exe­cut­ed by the State,” the ACLU wrote. The pris­on­ers who suf­fer the con­se­quences have no ​“reme­dies or recourse for poor per­for­mance” of their lawyers save a com­plaint to the Florida bar, which they can hard­ly file once they are exe­cut­ed. The ACLU not­ed that Mr. Harrison was appoint­ed to rep­re­sent at least five oth­er cap­i­tal clients and waived or for­feit­ed poten­tial­ly mer­i­to­ri­ous claims, end­ing in the exe­cu­tions of all five men.1

Mr. Wainwright died by lethal injec­tion at 6:22 p.m. on June 10, with no fed­er­al court ever con­sid­er­ing the mer­its of his con­sti­tu­tion­al claims, nor any state courts con­sid­er­ing the final habeas peti­tion that his cho­sen attor­ney had filed. 

To deny Mr. Wainwright rep­re­sen­ta­tion by under­signed coun­sel in these pro­ceed­ings, when the right to pro­ceed with coun­sel of choice would be a ​“done deal” for a sim­i­lar­ly sit­u­at­ed wealthy defen­dant, vio­lates Equal Protection under the Law.

— Terri Backhus, pro bono attor­ney for Anthony Wainwright

1 - Mr. Harrison rep­re­sent­ed Danny Rolling (exe­cut­ed 2006), John Ruthell Henry (exe­cut­ed 2014), Donald Dillbeck (exe­cut­ed 2023), Larry Joe Johnson (exe­cut­ed 1993), and Oba Chandler (exe­cut­ed 2011). For more infor­ma­tion, see the ACLU’s brief, pages 18 – 20.

Source: Death Penalty Information Center, Leah Roemer, June 11, 2025

"One is absolutely sickened, not by the crimes that the wicked have committed,
but by the punishments that the good have inflicted."

— Oscar Wilde