Unfair & Unconscionable: The Capital Jurisprudence of Antonin Scalia

He'll get a chance because his lawyers abandoned him.  So said 7 of 9.  Ginsburg wrote the opinion.  Alito (no pushover he) joined but wrote also his own concurrence to point out that it was the lawyers who were at fault and not the deeply flawed Alabama system of providing (or not providing) capital representation. 

Scalia dissented.  Joined by Clarence Thomas, Scalia explained that really, he was abandoned by only some of his lawyers.  And sure it's all unfair but then if we demanded fairness of our criminal justice system it would be the end of the republic.

OK, he didn't actually say that.  What he said was this.

But if the interest of fairness justifies our excusing Maples’ procedural default here, it does so whenever a defendant’s procedural default is caused by his attorney.That is simply not the law—and cannot be, if the states are to have an orderly system of criminal litigation conducted by counsel. Our precedents allow a State to stand on its rights and enforce a habeas petitioner’s procedural default even when counsel is to blame.

That is to say if we demanded fairness, then it would be the end of "an orderly system of criminal litigation conducted by counsel."  The republic would survive, but our whole system of criminal justice would collapse.  (Which he might think would destroy the republic, but he doesn't say that.)

So fairness be damned.

The case is Maples v. Thomas, and I've written about it before.   It's the sad saga of Cory Maples.  He's on death row in Alabama.  He got Sullivan & Cromwell, a fancy-ass, white-shoe, big-shot law firm in New York to represent him in state post-conviction proceedings because Alabama can't be bothered actually paying lawyers to do that sort of work.  But S & C dropped the ball.  Horribly.  Inexcusably.  Their lawyers abandoned Cory without telling him.  Alabama sent word to the lawyers that Cory had lost a round of his case which started a clock by which he had to appeal.  S & C returned the letters unopened because the lawyers who'd been working on Cory's case left the firm.  And then Alabama did nothing.  Until the deadline passed.

And SCOTUS today, in an opinion that really does nothing much to break any legal ground but really is no more than a correction of a monstrous and self-evident wrong, by a vote of 7-2, said to give Cory a chance.  Because, after all (although they didn't say this), the alternative is unfair.

Which left Nino to stammer and threaten the end of criminal law (if not the republic).

There's nothing much new in any of this.  On those occasions when 5 members of the High Court are sufficiently appalled by what the system did to the convicted guy, he wins.  Because it's only fair.

On those occasions when 5 members of the High Court are more appalled by the crime than by the unfairness of what was done to the convicted guy, he loses.

Well, 5 members of the Court who don't understand that a fair system means anarchy, criminals running rampant through the streets.  

Bar the gates.

Hide the silverware.  

Lock up the women and children.

A year and a half ago, it was Holland v. Florida.  Then, too, the poor guy's lawyer had, effectively, abandoned him.  If it's sufficiently gross abandonment, said a 7-2 majority of the Court, not just garden variety negligence, but negligence with cooties, he gets a chance to be heard.

Scalia would have none of it.  The problem he identified then wasn't that the republic (or at least the system of criminal law) would crumble if we tried to make it fair.  The danger then wasn't fairness.  It was conscience.  Judges, he said, might have a conscience.  But its dangerous and must be tamped down.

The Court’s impulse to intervene when a litigant’s lawyer has made mistakes is understandable; the temptation to tinker with technical rules to achieve what appears a just result is often strong, especially when the client faces a capital sentence. But the Constitution does not empower federal courts to rewrite, in the name of equity, rules that Congress has made. Endowing unelected judges with that power is irreconcilable with our system, for it “would literally place the whole rights and property of the community under the arbitrary will of the judge,” arming him with “a despotic and sovereign authority,” 1 J.Story, Commentaries on Equity Jurisprudence §19, p. 19(14th ed. 1918). The danger is doubled when we disregard our own precedent, leaving only our own consciences to constrain our discretion. 

So fairness is out.  Conscience is out.  What's left?

Oh, yeah.

Let them eat cake.

Carpe Diem: Cory Maples, Rick Perry, and Prohibition

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.

Alito:

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? 

Roberts:

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?

Scalia:

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.  

Greenfield writes

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..

First Monday in October

They're back.

It's the First Monday in October (title caps because it's a special day like Christmas Day or Flag Day or the Day of the Dead) which means the Supremes are in session.  (Well, the session is done for the day, but you know what I mean.)

God help the Republic.

As everyone who writes generally about the Court (think mainstream media) keeps pointing out, this year's docket, at least as so far set, seems to have less focus on corporations and big civil cases than in the last couple of years.  (Though the grizzly banging on the door is the Affordable Care Act.)  Rather, this is supposed to be the year (except for the Affordable Care Act) of criminal law.

God help the Republic.

Adam Liptak in his preview of the court's year (with reference to the Affordable Care Act), says that the focus is on First Amendment and criminal law.  He quotes Eric Freedman, law prof at Hofstra, fan of the First Amendment and important player in capital defense and especially capital habeas circles.

The Supreme Court has positioned itself to improve the quality of the criminal justice process from beginning to end.

Well, I suppose there's some truth to that.  Of course, it's also positioned itself to damage the quality of the criminal justice process from beginning to end.  (Not to mention, so I won't, the Affordable Care Act which of course is/isn't constitutional.)

Anyhow, as the term begins, a brief look at what will be up for oral argument this week.

Reynolds v. U.S. is a narrow issue.  

Because of how scared we are of them, sex offenders have to register and then there are all those notification provisions.  Along with the state requirements that are usually what we talk about, there are federal ones.  Reynolds registered as he was supposed to in Missouri, but when he moved to Pennsylvania, he didn't.  The feds said he had to, and brought charges. Reynolds said that the law can't be made retroactive to him until the Attorney General adopts rules that say it is, and while there is such a rule, he says it wasn't properly adopted.  (Does this seem sufficiently narrow?) 

The thing about narrow issues is that they sometimes morph.  The John Roberts who appeared before the Senate Judiciary Committee for confirmation hearings a few years ago emphasizing "judicial modesty" and the importance of not reaching out to get at issues not presented would never let that happen.  That John Roberts, of course, does not sit on the US Supreme Court.  The one who does, the one who's Chief Justice, has a different approach.

Of course, this case may generate a ruling exceptionally narrow and of little significance.  On the other hand.

Howes v. Fields deals with two things the Five Who Decide don't much like: Miranda and habeas.

OK, it's not really about habeas, that's just how the case got to the Court.  Here's the set up.  Randall Fields was doing time in a local Michigan jail for disorderly conduct when the corrections officers took him to a conference room where a couple of deputy sheriffs interrogated him about a sex offense with a minor.  They didn't give him Miranda warnings.

The formal rule of Miranda is that when you're in custody and questioned, the cops have to give you the warnings or what you say can't be used in court (and yes, it's more complicated than that and there are exceptions).  Clearly, Fields was in custody (he was in jail, after all).  But was he in custody for Miranda purposes?  You know, the kind of custody where he couldn't just leave.  After all, he could have just left.  Except he couldn't have.  Except the deputies told him he could.  Except that they also told him he could later - once corrections officers came to take him back to his cell where he would/wouldn't be in custody.

My head hurts.

Michigan courts didn't see a problem here.

The district court and the 6th Circuit did.

SCOTUS?  The smart money is that Fields will lose.  Why?  Because the He's-a-Fucking-Sex-Offender Rule which says he should never get relief will likely trump Miranda which the Five Who Decide thinks should never apply anyhow.  Oh, and it's the 6th Circuit, which always gets reversed.

Maples v. Thomas is the Cory Maples case I've written about before.

He's the guy who got screwed by high priced lawyers at Sullivan & Cromwell who dropped the ball on his case.  Maybe it's so egregious that SCOTUS will give him another shot.

But rules are rules and when your lawyer screws up, even if you didn't choose the lawyer and didn't want the screw up - well, somebody has to die.  And it ain't going to be the lawyers from S & C.

Martinez v. Ryan is about the right to counsel.

Here's the basic rule (spoiler alert - I'm oversimplifying again).  You're entitled to a lawyer when you'recharged with a crime and can be locked up.  Once you're convicted, if you have an absolute right to an appeal, you're entitled to a lawyer for it.  If you have a right to a second appeal or any other sort of thing, you're not.  You may get one.  Courts might be generous.  The state might authorize it.  But you have no federal constitutional right.

Here's the other basic rule.  You have a right to effective assistance of counsel at that trial and from that lawyer on a first appeal, by the way.  You're not entitled to effective assistance from any other lawyer you might have.  The measure of effectiveness is preposterously low, but that's a different issue.

So here's what happened.  Luis Martinez was on trial and convicted.  He wanted to argue that he was denied effective assistance of counsel at trial.  The only way to do that under Arizona law was by a post-conviction proceeding, not by direct appeal.  He had a lawyer for that proceeding, but the lawyer didn't raise that issue.  He tried to raise it later, and the Arizona courts said that he should have raised it before, so he was out of luck.  He tried to argue that his post-conviction lawyer was constitutionally ineffective, but nobody gave a rats ass because he wasn't entitled to have that lawyer do even a marginally good job.

Except that was the only time he could complain about his constitutionally ineffective trial counsel.   Except he didn't.

Except that was because . . . .

Aw hell.  So far, Martinez has drawn the short straw every time.

There are other cases up for argument this week, but if you think I'm going to write about Medicaid or copyright or whether a religious school can discriminate against its teachers on the basis of the "ministerial" exception to the American's with Disabilities Act, you're nuts.

And of course, there's no need to mention the Affordable Care Act.

Anyway, they're back.

God help the Republic.

He's Got A Chance

So just maybe.
We have to go back to the story of Cory Maples.  He's the guy on death row in Alabama whose lawyers,  big-law-fancy-ass-white-shoe-firm-top-tier-law-school-graduated-mega-bucks-an-hour lawyers at Sullivan & Cromwell fucked up big time.  (Well, he's one of the guys.)
Here, lifted from one of the earlier posts, is 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.

As Alabama goes, so goes the 11th Circuit.  Over and done.  Too bad.  But rules are rules.

It's a continuing debate: Fairness v. Finality.  But that's on paper, in courts and law reviews and law schools.

In the real world it's a different story.  It's a guy who got fucked.

Today, the Supreme Court agreed to hear the case, Maples v. Allen.  That's a good sign.  But it takes 4 votes to agree to hear it.  It takes 5 for Maples to win.

So just maybe.

But only maybe.

Cory Maples

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.”

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.