Lawyers for Kenneth Bernard Rouse should have filed their petition no later than 5 o'clock on Monday, Feb. 7. They procrastinated or miscalculated. Somehow they didn't file until Tuesday the 8th. The lawyers were one day late.

Rouse is now looking death in the eye. He has exhausted his state remedies. Unless the Supreme Court takes his case, or the governor of North Carolina commutes his sentence, Rouse will die for murder in the first degree.

The case presents a classic example of the conflict between law and equity. Within the U.S. Court of Appeals for the 4th Circuit, seven judges have come down on the side of law, four on the side of equity. All of them are doing what they feel they have to do.

The underlying facts are ugly. In March 1992, in the course of an armed robbery, Rouse murdered Hazel Colleen Broadway. He is black; she was white. According to the evidence, Rouse stabbed her repeatedly. She died slowly. At some point he sexually molested her. An all-white jury found Rouse guilty. He was sentenced to death for murder, plus 40 years for armed robbery and 20 years for attempted rape.

After the trial had ended, Rouse's counsel made a disturbing discovery involving one of the 12 jurors, Scott Baynard of Archdale, N.C. In 1954, Baynard's mother had been murdered by a black man in Jacksonville, Fla. He was 22 years old at the time. He had failed to disclose this relevant experience in voir dire questioning. In an affidavit in 1996, Baynard said:

"I did not reveal this information during the jury selection process of Mr. Rouse's trial. I knew that if I disclosed what had happened to my mother, I would be excused from serving on Mr. Rouse's jury. I wanted to serve on this jury.

"I noticed similarities between the facts of my mother's murder and that of Mrs. Broadway. In particular, the pictures of Mrs. Broadway at the murder scene reminded me of pictures of my mother after she had been murdered. In addition, robbery was involved in both crimes, as were sexual assault and drug abuse."

Baynard was almost certainly right: If he had disclosed this personal history, he would have been excused — and he wanted to serve on this jury.

In a handwritten postscript to the affidavit, Baynard pointed out that 40 years had passed. He said, "This similarly gruesome family tragedy had very little, if any, effect on my decision in the Rouse trial." He added that there were numerous other factors, such as "bigotry," that could have been more influential.

After he lost in state courts, Rouse moved to U.S. District Court on a petition for habeas corpus. Denied. Then his court-appointed lawyers, Grady Jessup and Tracy Hicks Barley, prepared an appeal to the Fourth Circuit. Jessup is a professor at N.C. Central Law School. She practices law in Durham. They may have misapplied what is known as the "mailbox rule." In any event, their petition arrived one day late. The court, sitting en banc, refused 7-4 to accept it.

Judge Karen Williams, speaking for the majority, said that equitable tolling of the statute could rarely be justified lest "extraordinary" circumstances of individual hardship supplant the rules of clearly defined statutes. A policy of generous extensions "would loose the rule of law to whims about the adequacy of excuses." Resort to equity must be reserved for rare instances where it would be unconscionable to enforce the limitation and "gross injustice would result." There is nothing "extraordinary," she said, about attorney error. Because Rouse's attorneys could have filed on time, but simply failed to do so, he is not entitled to equitable tolling.

Judge Diana Gribbon Motz, speaking for the four dissenters, said her colleagues should have taken the case. In the dissenters' view, Rouse had presented a powerful constitutional claim that he had been denied a fair trial when juror Baynard was seated. The juror brought to the box a sense of "personal vengeance and racial bias." This prejudice "infected Rouse's death sentence."

The failure of appellate counsel to make a timely filing was "egregious error, disastrous error," said Judge Motz, but "I cannot join a decision that would allow the most minor procedural default imaginable to prohibit all evidentiary inquiry into such a serious constitutional claim."

For my own part, I would join the majority view of filings that involve only a prison term. Stick strictly to the rules! But I would join Judge Motz in urging a new trial for Kenneth Rouse. Here we're talking death — and death makes a difference.

Universal Press Syndicate. E-mail Jack Kilpatrick at [email protected]