Kill Them Anyhow

There really is more than enough blame to go around.

The other day, Scott put up a blistering post about Sullivan & Cromwell, one of those biglaw, white shoe firms that took on a death penalty case in Alablama and then screwed it up. Here's the story, mostly courtesy of Above the Law, which is where Scott found it.

Alabama doesn't provide post-conviction counsel to pursue issues that aren't part of the trial court record. (You know, newly discovered evidence, ineffective assistance of counsel, favorable evidence improperly hidden by the prosecutors, that sort of thing.) So when Cory Maples was sentenced to die, he needed volunteer help, and he needed it badly. The ABA has a whole recruitment and assistance project for just that purpose. So do a couple of local bar associations.

It's important work, and biglaw is perfectly capable of doing it. When those firms take on the cases they can provide the resources that are desperately needed (and were probably denied at trial) for trial phase level investigation, for mitigation investigation, for mental health investigation. They have banks of attorneys that can do research and write, and they have access to experienced capital lawyers - not mostly on staff, of course - who are willing to offer assistance.

In Cory's case, Sullivan & Cromwell came through, providing a couple of associates in its pro bono program and whatever all else they did. They filed their papers and pursued their case in the Alabama trial court. To nobody's great surprise (or so I imagine), they lost. That's how these things work. You're making the record and taking it up the legal ladder looking for a court that will grant some relief. But you have to make the record (apparently S & C did), and then you have to be sure to keep it alive.

All law has procedural hurdles. That's especially true of criminal law, and especially of post-trial criminal law, and especially of capital post-trial criminal law. The first of these hurdles is not to miss a deadline that counts (some do, some don't). S & C missed a big one. They didn't file a notice of appeal after they lost in the trial court. In fact, they didn't even know they lost in the trial court because they returned the notice unopened.

See the lawyers who were handling the case had left S & C and the new lawyers hadn't filed an appearance and . . . . Oh, hell. There's really no excuse.

S & C tried to fix it. They asked the judge to reissue the order. He refused to participate in that sort of "subterfuge." They asked the court of appeals to let them off the hook. Nope. Deadlines is deadlines. (And death is death, of course, but that rarely seems to bother a court.)

Scott's point, not wrong, is that S & C blew it.

Biglaw has made some significant contributions to the cause of death row defendants, taking their cases pro bono, both as a public service as well as a training exercise for their associates. Better that they should practice on death row inmates than major (paying) corporations. Mistakes on paying clients had dire consequences. Mistakes on death row inmates, not so much. Even if their motives were suspect, at least they filled a void of representation, and often did some great work and won some major victories.

But Cory Maples remains on death row because Sullivan & Cromwell blew a deadline. I wonder how many partners and associates will turn out to watch as he's put to death. The execution chamber isn't big enough for a law firm of Sullivan & Cromwell's stature.

That's all right. And it's an important bit of chastisement that S & C will probably never notice.

But there's another point lurking here. One I pointed out in a comment to Scott's post and for which I received a legitimate reprimand. He didn't say I was wrong, he said that he chose the point he wanted to make.

I'm choosing mine, and making it here.

S & C screwed up, which is terrible. But death penalty cases are screwed up all the time. The real problem is that we let them get screwed up and then don't provide a repair mechanism.

When Roger Coleman (a guilty man who convinced a great many otherwise savvy people he was innocent and who had a strong enough innocence claim that, at one point, he might well have been found not guilty had he been retried) lost his post-conviction proceeding in Virginia, his lawyers missed, by three days, their deadline for appealing to the Virginia Supreme Court. That court dismissed the appeal as untimely. The U.S. Supreme Court agreed.

This isn't about Coleman, Justice O'Connor made clear in the first sentence of the Court's opinion. It isn't about whether an innocent man should be put to death. It isn't about fairness or decency or justice. It's about something else, she said.

This is a case about federalism.

With those words, she killed Roger Coleman, though it took another year before the folks in Virginia actually strapped him in the electric chair.

See, like Alabama, Virginia didn't really give a hoot about anything except its damned procedures. And Coleman's lawyers screwed them up.

When a lawyer screws up a civil case, the lawyer can get sued for malpractice so that, at least in theory, the poor sod who's out some money can recoup it from the lawyer. When a lawyer screws up a capital case, the poor sod gets executed.

Take Ohio. We have a statute that says that a person who has been sentenced to die is entitled, on request, to appointment of counsel to represent him in preparing and filing post-conviction pleadings.

The court shall appoint as counsel under division (I)(1) of this section only an attorney who is certified under Rule 20 of the Rules of Superintendence for the Courts of Ohio to represent indigent defendants charged with or convicted of an offense for which the death penalty can be or has been imposed.

Sounds good, doesn't it? The condemned gets not just any lawyer, he gets a lawyer who has gone through special training, has experience, and has been certified by the Supreme Court as being qualified to take on this sort of work.

What's that you say? I didn't quote the next sentence of the statute? OK, here it is.

The ineffectiveness or incompetence of counsel during proceedings under this section does not constitute grounds for relief in a proceeding under this section, in an appeal of any action under this section, or in an application to reopen a direct appeal.

Yep. That's really what it says. You're entitled to the appointment of highly qualified and certified counsel. The state will choose your lawyer from only those it's quite sure will do a good job. But if the lawyer doesn't? That's your problem.

It's not the lawyer's problem. It's certainly not the state's problem. You get a lawyer. But it's OK if the lawyer fucks up. No flies on the state. You just die.

So what are we doing here? Why in the world should Alabama not have an obligation to ensure that the people it wants to kill are actually well represented? Why should it think that its deadline is more important than ensuring that Cory Maples really is guilty and really deserves to die? Why should Ohio say you're entitled to a lawyer, and they'll even provide one, but if the lawyer messes up, that's your problem?

Capital cases are screwed up all the time. Trial lawyers make horrific mistakes or just do a terrible job. So do appellate lawyers and post-conviction lawyers and federal habeas lawyers. We're all running around trying to clean up the messes left by the lawyers below.

The states create unforgiving procedural hurdles because finality is so much more important than niceties like getting the right result. Congress set up even more unforgiving hurdles and absurdly rigid standards to make it harder for the men and women on death row to show that they shouldn't be there. The courts enforce those standards and hurdles with inconsistent but all-too-often unforgiving rigor.

Big law. Little guy. Doesn't much matter, in the scheme of things. When the mistake is made by the lawyer, we kill the client.

And nobody seems to give a damn.