It's Not Just Process, It's DUE Process

I've written about this guy before. 

His name is Cory Maples, and the State of Alabama wants to kill him.

Here's the plot.

Maples is on death row in Alabama.  There seems to be no question that he committed the crime that put him there.  There seems to be a lot of question, though, about whether he should be killed.  The jury wasn't unanimous, but it was enough for the judge.  Anyhow, because Alabama, alone among the states, doesn't provide any court-appointed counsel to pursue issues that weren't raised at trial, folks like Maples end up represented by volunteer lawyers.  Most of those volunteers are from out-of-state.

Maples hit the big time.  He got the services of Sullivan  & Cromwell, a big, respectable, white-shoe New York based law firm.  Firms like S & C do this stuff pro bono.  They pump big bucks and lots of associate time into the cases.  They can do spectacular work.

Or the associates working on the case can leave the firm, the new associates assigned can forget to enter an appearance, the firm's mail room can return unopened the notices (two of them) from the court in Alabama saying that Cory lost, and the deadline can pass for filing the notice of appeal.

Ooopsy.

S & C tried to fix it.  Nope, said the courts of Alabama.  Deadlines are deadlines.

Why, if we allowed Cory Maples to have his appeal even after his lawyers screwed up, then we'd have to let other people on death row have an appeal after their lawyers screwed up.  And gosh, golly, next thing you know, we'd have to say that people on death row shouldn't be killed over things that aren't their fault.  Why, we might have to revise the system so that fairness is more important than finality.

I've talked about all these things (Maples, finality, blaming the client for the errors of the lawyer, all of that) at one time or another.  I'm back to them today first because Adam Liptak takes up the Cory Maples story in his Sidebar in today's Times and second because blawger John Kindley, in a comment on his own post in the current interblawg squabble over "justice" and defending sent me to this post by Mark Bennett (from before I started reading most of this stuff) with comments about due process, which Bennett refers to as "procedural justice."  (Got that?)

Anyhow, I'm a lawyer and a criminal defense lawyer.  I believe deeply in due process.  Procedure is absolutely key to fairness.  Rules matter.

Fifteen years or so ago, I was arguing a sentencing appeal.  Ohio had a relatively new felony sentencing regime in place that required judges to jump through all sorts of technical hoops when imposing sentences, and judges were screwing it up right and left.  The case I was arguing was one that, I thought, was screwed up.  The problem is that it wouldn't matter to the client who'd get, at the most, nothing more than a field trip from the state prison to the county jail for resentencing.  Then he'd be resentenced, and he'd get the same sentence he had the first time.  (I don't remember the details at this remove.  The sentence may have been a mandatory minimum; I do recall that it was from a plea bargain the client had no interest in undoing.)  Still, it was clear (at least to me), that the trial court had screwed up.

So there I was in the court of appeals, making my pitch, when one of the judges, a conservative law-and-order type, asked a question.  From there, it went something like this.

JUDGE: So why are we here?  We send the case back, he gets the same sentence.  What's the point?
ME: Your Honor, it's about the rules.  It may not make a difference to the state or to my client, but the rules matter.  Someone has to tell the judges how to do this right, and you're the ones in a position to do that.  And if the outcome doesn't matter to the parties in this case, it will certainly matter in some other case.
JUDGE: I've never said this before; I don't think I've ever even thought this before.  But I agree with you.

And I won that case.  My client got a field trip back to county.  And he ended up with the same sentence.  But we made law that did, in fact, help a fair number of people over the next few years.

Process matters.  A lot.  The rules make a difference.  They have to count.

But there's a problem.  I've talked about it before (especially here and here).  We take the necessary thing (procedures/rules) and fetishize it.

Due process is fine, important, valuable.  But only (let's put that in boldface to make the point) only when it's a means to ensure a fair outcome.  A federal judge I know once explained that when you say, "That's not fair," you've got a due process issue.

The problem, of course, is with fairness.  Kent Scheidegger, over at Crime & Consequences, thinks it only fair that my clients should be killed.  Due process only applies, from his point of view (yes, I'm oversimplifying to the point of being slightly misleading, live with it), if it hastens executions.  Me, I see it the other way.  And there's one rule on my side.

The accused is entitled to Due Process.  The government isn't.

It's the difference between process (the government gets plenty of that) and due process.  And that's not about getting just deserts, it's about being treated fairly.

So let's go back to Cory Maples for a moment.  The two letters telling his lawyers at S & C that he'd lost (and therefore needed to appeal) were returned unopened.  The court (or the clerk or however it works in Alabama) could have tried harder to give notice.  It could have sent out more letters, made phone calls, told Cory, done something.  It didn't.  Not a thing.

Here's Adam Liptak, pointing to an argument in Maples' petition at the Supreme Court.

That petition discussed a precedent that might seem instructive.
In 2006, in Jones v. Flowers, the Supreme Court considered what sort of notice must be given when the government wants to sell a home for unpaid taxes. If a letter is returned unopened, Chief Justice John G. Roberts Jr. wrote for the majority, officials must try harder to reach the owner.
“This is especially true,” he wrote, “when, as here, the subject matter of the letter concerns such an important and irreversible prospect as the loss of a house.”