I was going to write about Cory Maples.
The idea was that I'd begin by quoting the last couple of sentences from the transcript of the oral argument at the Supreme Court yesterday. These sentences, from the end of the rebuttal argument by Maples' attorney, Gregory Garre:
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 to a Federal habeas court on the merits.
If the claims are as manifest as we think, that clearly will have little burden on it. But simply allowing those claims to be adjudicated on the merits in Federal court will go a long way to preserve the legitimacy in criminal justice in a case in which a man's life is at stake.
Then I was going to quote a brief exchange between Justices Ginsburg and Kennedy and John Neiman, Jr., Alabama's Solicitor General.
JUSTICE GINSBURG: Did you oppose it? Did the State oppose the out-of-time appeal?
MR. NEIMAN: Yes, Your Honor, the State did oppose the out-of-time appeal, and the State pressed the procedural bar in Federal court in this case. But the State had every prerogative to do so, in part because this Court recognized in Coleman, a case where Petitioner undoubtedly could have said that he lost his right to he appeal through no fault of his own, the State had the power to do that. There are good reasons for the State -JUSTICE
KENNEDY: Could the state in the Federal litigation have waived the procedural default?
MR. NEIMAN: Your Honor, I think the law's not exactly clear on that, but I know of no law that would say the Alabama Attorney General -- the Alabama Attorney General has to press every single non-jurisdictional defense at his or her disposal. But he did not do so here and had good reason not to. That's in part because Coleman says that this is how procedural defaults work. There are good reasons for procedural defaults. They are grounded in the same equitable principles that -
And then I'd join many others in quoting Justices Alito, Roberts, and Scalia.
This is a case where case where, as I said, it's a capital case, as we all recognize. 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 an effective assistance of counsel at trial, why not give a decision on the merits of that? Why push this technical argument?
Why did he do it? Why did he do it, then? Just gloating that -- that the fellow had lost? What was the point of it? He must have thought there was a problem, right?
If we find -- if we find that these lawyers did abandon their client, would there be some sanction imposed upon them by the Bar? I often wonder, just as when we find that there's been inadequate assistance of counsel in a capital case, does anything happen to the counsel who have been inadequate in a capital case?
. . .
Have you ever heard of anything happening to them? Other than they are getting another capital case?
I was going to give you that string of quotes and then doubt whether the collective wisdom of the media, that Maples will win either 8-1 or 7-2 (Scalia dissenting or maybe Scalia & Thomas), bears any actual relationship to reality.
Oh, it might. And my track record at predicting defense wins at SCOTUS (I never predict defense wins at SCOTUS) is less than perfect (I mean, once in a while the defense does win at SCOTUS). But the fact that everyone who spoke (which of course leaves out Thomas) except Scalia expressed some degree of distaste for Neiman's argument and for what Alabama did and, especially, for what the lawyers for Maples did (even Scalia didn't try to defend them), there was also serious skepticism about the argument Maples was making.
The truth is that for Maples to win the majority has to decide that his lawyers didn't just screw up royally but actually abandoned him to the maw of the execution machine. (Actually, the Court could just decide that his lawyers were not merely negligent but super-dooper-negligent-with-a-cherry-on-top.) And for all the recognition that Maples got fucked by his lawyers (which even Scalia acknowledged, remember) and at least quasi-recognition that he got fucked by the staff at the clerk of courts office in Alabama, it's far from clear to me that there are 5 votes (which is the magic number, after all) to say that he was badly enough fucked for them to give him a break.
Because, you know, the interests of finality. And it's not like Alabama courts didn't rule against him. And it isn't like he didn't kill anyone. Garre explained.
The question in the case is really not who shot the victim. The question was whether Mr. Maples was going to be convicted for capital murder or murder that would result in life imprisonment.
Which might make it easy.
The real problem, as I've said before, is that Cory Maples' lawyers just fucked him a bit more dramatically than the lawyers fucked their client in cases where the courts are are routinely willing to say,
Tough shit! And don't forget to turn out the lights after everyone leaves the execution chamber.
As I said, that's what I was going to write.
But then Scott Greenfield wrote about the importance of continuing to focus on our issues, and trying to figure out how to keep the press/public interested. Scott took as his jumping off point, this post at prawfsblawg by Lee Kovarsky of the University of Maryland Francis King Carey School of Law (naming rights being what they are, if I were a smart ass I'd wonder if they actually auctioned off the school's name to the highest bidder or simply jumped on the first person who offered a few million; of course, I'm not a smart ass, so those thoughts never crossed my mind).
Kovarsky has a simple question:
Is the recent spike in public attention to the death penalty a fleeting feature of Republican Primary coverage, or does it signal a more durable interest in capital process and outcomes.
The death penalty is, Kovarsky says, hopelessly racist in fact if not in theory and certain to kill some number of innocent persons. On the former point, he discusses a now-murdered client of his, Milton Mathis. On the former, he points not to the dead (Troy Davis, Cameron Todd Willingham) but to the exonerated, including his client Anthony Graves. We've done it, he says, and we'll do it again.
To believe otherwise is to live in denial of basic probability. The best death penalty defenders can say is that we can't pinpoint the specific cases. That's not the point.
Which is exactly right and precisely expressed.
But so what, he wonders.
In light of these two critiques - featured prominently alongside Perry's bruising ascent through the primary field - is the recent spike in focus on the death penalty durable? Will any lasting coalition for legislative change develop? Or is the interest a byproduct of our cable-tv fascination with jarring political personalities? I don't feel optimistic. The first calls on Milton's case from the national media were from well-intentioned reporters seeking to situate the execution in a broader narrative about Perry. And media coverage of the death penalty generally has sputtered while Perry's star fades.But maybe even the passing surge of interest is enough to counter the inertia in death penalty states? Nope. The problem is less Rick Perry per se than it is the constituency to which he genuflects. While general support for the death penalty has fallen to 67 percent nationally, and while the public is particularly concerned about wrongful executions, let's not confuse a national sample with the audience at that Republican debate. That audience looks a lot like the electorate in Republican primaries of deep-red, high-execution-volume states like Texas and Alabama. And I'm guessing support for the death penalty in that ampitheatre approached 100%, innocence and systemic racism be dammed.
OK, that's Kovarsky. I tried to write a comment, but what I wrote wasn't allowed. (No curse words. I think it's probably because I was too wordy.) Here's the guts of what I wrote.
To begin with, the reference to 67 percent of the population supporting the death penalty is at best misleading. The data are clear that while some 60-67 percent of the population (it varies by poll) support the death penalty as a punishment for murder when the question is yes or no, when there are alternatives the percentage shrinks dramatically. Add LWOP into the mix and the percentage drops dramatically - by some polls to less than 50 percent. Add LWOP with financial support (from prison earnings, say) to the family of the victim, and the polls consistently show less than 50 percent.
The polls also show that somewhere around two-thirds of the people think we've executed innocent people in the past 5 or 10 years but that roughly two-thirds of them still support the death penalty (again, as an abstract, yes or no question). But as I've argued elsewhere (see here), there are polls and there are polls. The ones in the jury room are as revealing, and perhaps as meaningful, as the ones conducted by the professional pollsters.
It may be that Rick Perry's capital record is responsible for some of the media flurry around the death penalty recently, but there was plenty when the Supreme Court ordered the Troy Davis case back to the district court for a hearing. As there was when Karla Faye Tucker was killed. As there was when Ted Bundy was. As there was when . . . pick your death row celebrity. It wasn't a presidential campaign that led to legislative repeal in New Jersey, New Mexico, and Illinois. It wasn't a presidential campaign that led to the New York Legislature not enacting a law that would have satisfied the New York Court of Appeals holding and reinstated the death penalty in that state.
I'm not starry-eyed about any of this. National abolition is a very long way from occurring, and Texas and many other states will likely get there, if they ever do, kicking and screaming. But to think that attention to and effective action toward abolition is largely a function of Rick Perry's record (or the cheers from the throng at the debate) is to seriously oversimplify and to draw a false conclusion.
I copied all that in here because I want to use it to make a point of mine (rather than just to respond to Kovarsky. Movements are hard. If you're watching Ken Burn's documentary sequence on Prohibition (or if you read Daniel Okrent's Last Call: The Rise and Fall of Prohibition), or if you study the history of women's suffrage (which Okrent convincingly shows was linked to prohibition, by the way) or any other major social movement, you'll discover that it takes enormous time and commitment and energy. Prohibition didn't happen overnight. The 18th Amendment was ratified in 1919, but Okrent shows that what he calls "the nations first large-scale expression of anti-alcohol sentiment" dates to 1840. That's 70 years.
Changing the world takes time.
Death sentences are down. Executions are down. The criminal justice system still fucks people over regularly, even when their lawyers don't.
For the brief, shining moment that Americans are hearing about potentially innocent, or definitely mentally retarded (except in Texas) men being executed, the least we can do is strike while the iron is hot. Given the efforts of the Innocence Project and its friends is raising our national consciousness, that our system is so fraught with imprecision and mistakes, most people are aware, at least to some extent, that their reliance on the criminal justice system, from trials to the Supreme Court, to assure us that only the guilty are executed has been undermined. And yet, this has yet to upset enough people to cause a shift in attitudes toward the death penalty.While writing, talking, discussing the problems with capital punishment isn't the sort of stuff that endears others at cocktail parties, or sucks in readers of all stripes, it may be a long time before people have the death penalty on their front burner again. Pretty soon, they'll be back to paying bills and feeding mouths, the things that directly affect their lives.Don't squander the opportunity. And really, who cares about Christie's weight or Perry's hair?
Which is right. Troy Davis's execution, coupled with Rick Perry's record and attitude put the death penalty on the front page, and abolitionists must take advantage of that. But even though it won't stay on the front page, even as it drops below the fold and then to page 27, it will be back. Because there'll be another death row celebrity and another case that cries out and gets the media's attention. It's happened before, and as long as we keep killing people, it will happen again.
And in time.
Kovarsky talks about McCleskey v. Kemp. It will, he says,
ultimately assume its rightful place in the anti-canon next to Dred Scott and Korematsu, involved an equal protection challenge to the death penalty. Recently-deceased Professor David Baldus provided as evidence a study that showed that, controlling for other variables, non-white offenders were 1.7 times as likely to receive a capital sentence as white offenders. Killers of white victims were 4.3 times as likely to be capitally sentenced as were killers of non-white victims. This, the Court ruled, was just the cost of doing the states' capital business.
And if the species survives long enough, he'll be proved right. And abolition will come to pass. In the meantime, as they kill more of his clients, and more of mine, we can know that each execution takes us closer to abolition. That's no comfort, but it's not something to forget, either..