Cornell Law Review Volume 91 Issue 5

Giarratano is a Scarecrow: The Right to Counsel in State Capital Postconviction Proceedings

In the apocryphal Case of the Kettle, one thing is plain: The defendant has no liability for the damage to the plaintiff’s pot.  This may be because he never borrowed it, or because it was cracked when he borrowed it, or because it was sound when he returned it.  Murray v. Giarratano is a similar case.  Although courts continue citing to it for the proposition that there is no right to counsel in state capital post-conviction proceedings, when one reaches the legal bottom line by any of the several available routes that proposition proves to be as dead as “some ghoul in a light-night horror movie.”  Indeed, I will argue that it was never alive in the first place.  Like Bowers v. Hardwick before Lawrence v. Texas overrulled it, Giarratano is actually a scarecrow, whether because in concrete instances the decision actually supports rather than negates the existence of the claimed right, or because legislative chagnes have made the case irrelevant, or because it should be overruled either as wrong when decided or wrong now.


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