The Death Penalty Case That Has Even Scalia Griping About Incompetent Lawyers.

Oral argument from the court.
Oct. 4 2011 6:44 PM

Dead Letter Office

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

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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?”

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate

Hard to imagine a more damning indictment of the American capital justice system than that.

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?”

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.

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