Dead Letter Office; Supreme Court Death Penalty Case

[jimmy olsen]

Pool Playing Scum! 

http://www.slate.com/articles/news_and_politics/supreme_court_dispatches/2011/10/cory_maples_case_can_a_man_be_executed_even_if_he_has_no_lawyer_.html

Dead Letter Office
The case that has even Antonin Scalia wondering what to do about incompetent lawyers in death penalty cases.

By Dahlia Lithwick|Posted Tuesday, Oct. 4, 2011, at 6:44 PM ET

Cory R. Maples is facing execution because his lawyers got lost in the mail. At oral argument in his case this morning, Justice Antonin Scalia found himself all alone in thinking that was OK. Yet it is Scalia who notes, toward the end of the hourlong session, that there are never any consequences when defense lawyers screw up a capital case. "Does anything happen to the counsel who have been inadequate in a capital case?" Scalia asks Alabama Solicitor General John Neiman. "Other than getting another capital case?"

Hard to imagine a more damning indictment of the American capital justice system than that.
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Maples was convicted in 1997 of killing two friends after a night of heavy drinking, driving, and pool-playing. (The pool playing was significant to the appellate court for some reason.) At his trial, Maples' lawyers warned the jury that their inexperience might look like they were "stumbling around in the dark." They also failed to present evidence of Maples' mental health history, which includes suicide attempts; the fact that he drank heavily that night; and information about his history of alcohol and drug use.

Alabama is the only state that doesn't grant taxpayer-funded legal assistance to death-row inmates seeking to challenge what happened at trial. So for his appeal, Maples had local counsel acting in name only, while he was represented for free by a pair of second-year associates at the fabulous New York law firm of Sullivan and Cromwell. For 18 months nothing happened with his appeal, during which period his young lawyers left their firm without notifying Maples or the court. They did tell the mailroom. So when the Alabama court sent a ruling to his two lawyers indicating that his appeal had been denied, the mailroom stamped it "Return to Sender" and sent it back to Alabama. The county clerk stuck it in a file and Maples—who knew nothing of any of this—missed the 42-day deadline for filing another appeal. Maples' local counsel, John Butler Jr., also received a copy of the ruling, but because he believed he was Maples' lawyer in name only, he did nothing with it.

So Maples thought he had three lawyers when in fact he had none. He missed his filing deadline.

Reviewing courts all rejected Maples' request for an extension in the filing deadline. The 11th Circuit Court of Appeals wrote that "any and all fault here lies with Maples for not filing a timely notice of appeal." The Supreme Court itself has not had a lot of patience for missed deadlines of late.

But the question before the court today is whether Maples' missed filing deadline can be excused if he himself was blameless, and the government's actions were a contributing factor. The majority of the court is flummoxed at Alabama's decision to deny a man the right to appeal when he missed a deadline—quoting Justice Samuel Alito—"through no fault of his own, through a series of very unusual and unfortunate circumstances."

George W. Bush's former solicitor general, Gregory G. Garre, represents Maples, and immediately Scalia attacks him for claiming that local counsel wasn't the attorney of record in this case: "You want us to believe the local attorney had no responsibility for the case at all? ... Even if local counsel was just a functionary, surely his functions would include forwarding a notice?"

Justice Ruth Bader Ginsburg points out that the state prosecutor sent a notice directly to Maples in prison telling him he'd lost his appeal, presumably because he knew that local counsel wasn't acting on his behalf. Scalia retorts that there is nothing in the Constitution or the federal rules of procedure that says the accused has a right to judicial notice. Garre replies that death penalty cases might be different. Scalia asks why.  "Once you are in court and you have a lawyer, it's up to your lawyer to follow what goes on in the court."

Justice Anthony Kennedy is bothered by the fact that the Alabama trial judge sat on the case for 18 months, and by the assumption that Maples would naturally just fail to appeal. Even the solicitor general of Alabama is willing to concede that most capital defendants do appeal.


When Neiman stands to represent Alabama, he discovers that most of the court's conservatives are just not willing to be that guy—by which I mean, the guy who sends another guy to the chair because of a mailroom error. Only Scalia battles on, arguing first that "Return to Sender" stamped on the Sullivan and Cromwell envelopes doesn't necessarily mean his attorneys had abandoned him; it could just mean that the court had the "wrong address." When the prosecutor mailed a letter directly to Maples in prison indicating that he had lost his appeal, Scalia asks, that wasn't so much a recognition that his lawyers had abandoned him as an "extraneous volunteer statement to Maples."

Chief Justice John Roberts looks puzzled. "Why did he do it, then? Just gloating that the fellow had lost? He must have thought there was a problem, right?"
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Justice Elena Kagan puts it this way: "The question that we are supposed to ask ourselves is: Is this what somebody would do if they actually wanted the person to get that letter. So I'm just going to ask you, general, if you were a lawyer in an important litigation and you send off an important letter to two lawyers, your principal adversaries, as well as to a local counsel who you think may not be involved in the substance of the litigation. ... So you send off this letter and you get it back from the principal attorneys, and you ask yourself: Huh, should I do anything now? What would you say?"

Neiman grudgingly replies, "I suspect that in those circumstances I might well personally do something else."

Alito has had enough. "Mr. Maples has lost his right to appeal through no fault of his own, through a series of very unusual and unfortunate circumstances. Now, when his attorneys moved to file an out-of-time appeal, why wouldn't you just consent to that? If he did not receive effective assistance of counsel at trial, why not give a decision on the merits of that?"

Roberts questions Neiman on what it is that Maples' local counsel, Butler, ostensibly did in the case to suggest he was actively involved. When Neiman can't produce an answer, Roberts retorts: "You still haven't told me one thing he did more than move the admission of the out-of-town attorneys." Neiman looks distressed.

Garre concludes his rebuttal by explaining the stakes: "Mr. Maples is not asking to be released from prison. He is asking for an opportunity to present a serious constitutional claim of ineffective assistance of counsel. ... Allowing those claims to be adjudicated on the merits will go a long way to preserve the legitimacy of the system of criminal justice in a case in which a man's life is at stake."

It says an awful lot about the Alabama capital justice system that it is willing to put to death a man who—for all intents and purposes—had no legal representation. Today the court is clearly more horrified by Alabama's willingness to press forward on that technicality than by any of the foul-ups that comprise these facts. That's too bad because those screw-ups are depressingly common in death penalty cases. Not even Scalia denies that fact.

   

[The Minsky Moment]

the fabulous New York law firm of Sullivan and Cromwell   

Nice to see Sullivan has upgraded their LGBT recruiting. 

[Rasputin]

the fabulous New York law firm of Sullivan and Cromwell   

Nice to see Sullivan has upgraded their LGBT recruiting. 

on a serious note, this seems to be a case of the system working....the man got his case to the supreme court and will likely get the 11th circuit reversed, whereupon, he will get to have his appeal heard on the merits which he will likely then lose on the merits and be executed

[Razgovory]

the fabulous New York law firm of Sullivan and Cromwell   

Nice to see Sullivan has upgraded their LGBT recruiting. 

You really should have notified your client you were leaving the firm.

[Ideologue]

I'm not 100% up on the mechanics of how out-of-state attorneys and attorneys of record work.  Do the ordinary rules of withdrawal not apply to the out-of-staters?

[Rasputin]

I'm not 100% up on the mechanics of how out-of-state attorneys and attorneys of record work.  Do the ordinary rules of withdrawal not apply to the out-of-staters?

They do; that's what scalia was getting at when he wondered where the punishment was for all three lawyers

every state makes it a breach of ethics to act without competence; very few attorneys ever get sanctioned for violating that rule

I suspect that the two cromwell and sullivan lawyers, as smart and well educated as they otherwise must have been, did not understand that once the pro hac vice appearance was granted, responsibility for the representation stayed with them until excused by the court...

of course cromwell still had responsibility as did the local counsel

[Martinus]

the fabulous New York law firm of Sullivan and Cromwell   

Nice to see Sullivan has upgraded their LGBT recruiting. 

Well, their CEI is 100%. 

[The Minsky Moment]

It's easy to point fingers at S&C, the two junior associates, and the Alabama local counsel and Scalia has done so.

But the whole situation arises in the first place because adequate counsel wasn't provided to a capital defendant after trial.  Indeed no counsel was provided.  That means Alabama death row inmates have to get by as best they can on a patchwork of ad hoc pro bono representations.  And ad hoc, patchwork arrangements are inherently prone to unravelling.

The best point here is Alito's - when it found out what happened, why the hell didn't the State just agree to the extension?  This case never shouldn't have gone this far. 

[Ideologue]

I'm not 100% up on the mechanics of how out-of-state attorneys and attorneys of record work.  Do the ordinary rules of withdrawal not apply to the out-of-staters?

They do; that's what scalia was getting at when he wondered where the punishment was for all three lawyers

every state makes it a breach of ethics to act without competence; very few attorneys ever get sanctioned for violating that rule

I suspect that the two cromwell and sullivan lawyers, as smart and well educated as they otherwise must have been, did not understand that once the pro hac vice appearance was granted, responsibility for the representation stayed with them until excused by the court...

of course cromwell still had responsibility as did the local counsel

That's what I was thinking, but considering these people are so fabulous, I figured I'd ask in case something I considered pretty basic didn't apply to a pro hac vice arrangement.  Like, maybe it was all on the local counsel to arrange the withdrawal once he was informed.  On a closer reading of the story, the ineptitude on all sides is sort of staggering.  Maybe I ought to have taken the bar; I'm not the brightest light, but I'm clearly not dumber than these folks.  That is, I've never been under the impression just quitting my job (and mentioning in passing to someone that maybe they should inform my co-counsel) ended a representation.  Or that having my name at the end of court documents didn't mean anything.  And I wouldn't be a prosecutor anyway, so that's out.

I'm also not sure it's completely kosher to try to leverage inexperience in a statement to the jury.  But I guess at least they weren't making it up.

[Rasputin]

It's easy to point fingers at S&C, the two junior associates, and the Alabama local counsel and Scalia has done so.

But the whole situation arises in the first place because adequate counsel wasn't provided to a capital defendant after trial.  Indeed no counsel was provided.  That means Alabama death row inmates have to get by as best they can on a patchwork of ad hoc pro bono representations.  And ad hoc, patchwork arrangements are inherently prone to unravelling.

The best point here is Alito's - when it found out what happened, why the hell didn't the State just agree to the extension?  This case never shouldn't have gone this far.

i think suggesting the state could have agreed to the extension is misleading and a mental lapse on the questioner

most deadlines to file an appeal (as opposed to deadlines for filing once the appeal has commenced) are juridictional and cannot be extended by consent of the adversary or even act of god unless the act causes the courthouse to close; without having ever seen it, i suspect that this formed the basis of the eleventh circuit's refusal to provide relief

I agree with you that it's a very troubling case and a remedy should be fashioned where monetary damages against a lawyer's malpractice carrier are a hollow remedy for the victim

nonetheless that remedy will likely be in contravention to a pretty substantial body of case law

[The Minsky Moment]

Under the Federal Rules, extensions of time to appeal can be granted for excusable neglect or good cause.  I don't know what the Alabama rules are.

[Rasputin]

Under the Federal Rules, extensions of time to appeal can be granted for excusable neglect or good cause.  I don't know what the Alabama rules are.

even rule 5c frap appears jurisdictional ...

I dont know the alabama rules either

florida's appellate rules are jurisdictional -- one day late means no appeal and the consented extension of one's adversary cannot fix that

[The Minsky Moment]

FRAP 4 permits extensions for various causes; I know b/c my adversary just got one. Of course if you don't get the extension, you are out of luck . . .

The "jurisdictional" status of these timing rules doesn't make a lot of sense and the Supreme Court was busy getting rid of them until Thomas' decision in Bowles.  After Morrison and other cases limiting what is characterized as jurisdictional, Bowles is looking more and more like an outlier. Funny though, Alito joined that one.

[Rasputin]

FRAP 4 permits extensions for various causes; I know b/c my adversary just got one. Of course if you don't get the extension, you are out of luck . . .

The "jurisdictional" status of these timing rules doesn't make a lot of sense and the Supreme Court was busy getting rid of them until Thomas' decision in Bowles.  After Morrison and other cases limiting what is characterized as jurisdictional, Bowles is looking more and more like an outlier. Funny though, Alito joined that one.

I meant 4(a)(5)(c)

i understand your point and confess i don't know the alabama rule; from experience i can tell you that in practice the eleventh circuit is not shy about refusing to hear a matter on the merits where it believes either a procedural default has occured or that a party has blown a jurisdictional deadline and our state appellate courts are in some respects even tougher.

[The Minsky Moment]

I understand why the 11th circuit did what it did.

Looking at the full transcript, it is clear that Alito was assuming that there was some "good cause" time extension rule in Alabama; Neiman appeared to concede that there was but said the court found the rule didn't apply to these particular circumstances.  The open question is what would have happened if the prosecutor, instead of fighting the extension request, either didn't oppose or affirmatively took the position that the there was good cause here.