Evitts v. Lucey Page 14

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Media for Evitts v. Lucey

Audio Transcription for Oral Argument - October 10, 1984 in Evitts v. Lucey

William M. Radigan:

Oh, the deficiency notice that they are doing now.

Thurgood Marshall:

Yes.

William M. Radigan:

If that had been in existence at the time, we would have been fine, but it wasn't.

Thurgood Marshall:

That wasn't my... it wasn't my question.

If we say that, are you satisfied?

William M. Radigan:

No, Your Honor.

Mr. Lucey still wouldn't have an appeal.

Thurgood Marshall:

Why?

William M. Radigan:

He would still be denied his appeal.

Thurgood Marshall:

Why?

If they say he can file this five day thing?

William M. Radigan:

Because that is not what happened in this circumstance.

Thurgood Marshall:

Well, well, what do you want us to do, to say he ipsy dixie gets an appeal?

William M. Radigan:

I want this Court to say that Mr. Lucey has the right to effective assistance of counsel on appeal, that when he is denied that due process right, that indeed, what should occur is that there should be an appeal granted him anew, that he begin again and have the right to have his appeal, his conviction reviewed by an appellate court.

John Paul Stevens:

May I ask a question?

William M. Radigan:

Certainly, Justice Stevens.

John Paul Stevens:

From your colloquy, I gather this problem has arisen more than once in Kentucky.

William M. Radigan:

Unfortunately, Justice Stevens--

John Paul Stevens:

And which suggests there may be either some clever lawyers or some incompetent lawyers in Kentucky, and I am wondering if the revision in procedures includes some procedure for disciplining counsel who are found to have been so incompetent as to be unable to file a notice of appeal.

William M. Radigan:

--Well, Your Honor, I hate to do this, but if I can refer you to a case called in Re Radigan, which is cited in Mr. Lucey's brief, the Supreme Court of Kentucky used me as an example of that.

At that time I was working at the Public Defender Office in Frankfort as an appellate attorney where I had worked for about nine years, and the Supreme Court of Kentucky directed me to file a brief within a specified period of time.

I said to the Supreme Court of Kentucky in a hearing in front of them, I can't, I have too many cases.

And they said, I'm sorry, Mr. Radigan, you are in contempt of court, and but because you are a fine attorney who we have known for a long time, we will withhold the rendition of that fine over you.

So yes, the Supreme Court of Kentucky, as I well know, has the right to go ahead and have enforcement of its rules through chastising its attorneys.

William J. Brennan, Jr.:

Mr. Radigan, your time is about up.

May I get back because I didn't understand when we were talking about the mootness question.

William M. Radigan:

Yes, Your Honor.

William J. Brennan, Jr.:

You mentioned that you had consulted with your client about ten days ago.

William M. Radigan:

That is correct, Your Honor.

William J. Brennan, Jr.:

Are you telling us today that he wants you to, as of today, not as of ten days ago, continue with the defense of the judgment of the Court of Appeals?