The Sins of the Father . . . . .

January 22, 2012 Appeals

“Fathers shall not be put to death because of their children, nor shall children be put to death because of their fathers. Each one shall be put to death for his own sin.” Deuteronomy 24:16

My partner Howard came rushing into my office: “Did you read the Scalia dissent?” I confessed I had no earthly idea what he was referring to so he threw it down on my desk, finger jabbing at the last line, “Read this.”

“Because a faithful application of those precedents leads to the conclusion that Maples has not demonstrated cause to excuse his procedural default; and because the reasoning by which the Court justifies the opposite conclusion invites future evisceration of the principle that defendants are responsible for the mistakes of their attorneys; I respectfully dissent.”

Howard: “Imagine if the public actually read Supreme Court decisions and realized they are responsible for their attorneys bumbling. They would be scaling the walls of the Palace of Versailles.” With this introduction I pulled up the opinion of Maples v. Thomas to read it myself. It reads like an Edgar Allan Poe horror story.

Accused of a double murder in 1997, Maples was represented at trial by two court-appointed lawyers, only one of whom had experience in capital cases. Maples was convicted and sentenced to death. Alabama, “nearly alone among the states,” does not provide post-conviction legal representation for indigent defendants. Instead, it depends on volunteers, often by large out-of-state law firms.

In Maples’ case, Sullivan & Cromwell associates Jaasi Munanka and Clara Ingen-Housz took on his appeal, which, among other claims, raised ineffective assistance of counsel at trial. In 2002, both of them left the firm for positions which no longer allowed them to represent Maples – Munanka clerked for a federal judge, and Ingen-Housz went to the European Commission.

Unfortunately, neither lawyer informed Maples they were leaving, nor sought permission to withdraw from his case by the Alabama courts. The firm equally did not notify the Alabama court of any substitutions. So when the trial court denied Maples relief, notice to the lawyers was sent to Sullivan, and the firm’s mailroom returned the envelopes unopened.

This series of mishaps caused the time to file a notice of appeal to lapse and Maples lost the right to contest his death sentence in the appellate courts. He became eligible for immediate execution.

“Abandoned by counsel, Maples was left unrepresented at a critical time for his state postconviction petition, and he lacked a clue of any need to protect himself pro se,” wrote Justice Ginsburg. “In these circumstances, no just system would lay the default at Maples’ death-cell door.” This was not a case of  “a man who represents himself has a fool for a client,” but a poor schlub who thought he did have one.

In his concurrence, Justice Samuel Alito, Jr. described Sullivan & Cromwell as “one of the country’s most prestigious and expensive” law firms, and said what befell Maples was “a veritable perfect storm of misfortune.”

In the end it seems a just result for Mr. Maples. Most would agree that a man should not be executed because of his lawyer’s negligence. But what about Justice Scalia? He seems quite peeved that Maples got another bite at the apple because giving him relief would open the veritable floodgates to indigent defendants represented by sleeping, or alcoholic, or drug-addled lawyers.

This is nothing new for Scalia, and it isn’t even among his greatest hits. Take Troy Davis and his claim that he was “actually innocent.” “This court,” Scalia pointed out, “has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a court that he is ‘actually’ innocent.” A very comforting thought.

But as we lawyers know, courts are reluctant to excuse procedural defaults. Enforcing the rules regarding timely filing and the proper raising and development of claims is necessary to keep the courts running smoothly. But in cases like Cory Maples, the default cannot be attributed to, or held against, the client. The only default would be a moral one if we denied him his basic rights.

When the rules become more important than the reason why we have rules, then we have lost our way. The end result is not that Cory Maples gets off death row, but rather he gets back his right to appeal.

Our system of justice will not crumble because of that.