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.