Wednesday, October 5, 2011

Sometimes there are unanswered questions at oral argument.

Several media outlets are reporting about a death penalty case that was heard by the Supreme Court on Tuesday. The case, Maples v. Thomas, features some very odd facts. The coverage at Slate, Huffington Post, or the New York Times provides the pertinent background on the oral argument. One can also read the transcript of the argument here.

In reading the coverage, two questions occurred to me that are not directly about the merits of the appeal. First, however, some background.

Cory Maples was convicted in Alabama state court of two murders. Mr. Maples’s guilt is not in dispute. His court-appointed lawyers, who had apparently never tried a murder case before, failed to present mitigating evidence during the penalty phase of the trial and Mr. Maples was sentenced to death. Mr. Maples lost the appeals of his conviction.

Mr. Maples then began post-conviction proceedings claiming that he had received ineffective assistance of counsel during his trial. A large New York law firm, Sullivan & Cromwell, took his case pro bono and assigned it to two associate attorneys. The firm also, as was required by Alabama rules, associated itself with a local Alabama attorney for the case. The local attorney did not do anything on the file except move the admission of the New York attorneys.

For some reason, it took eighteen months for the district court to deny relief on the ineffective assistance of counsel claim. The court mailed the decision to each of Mr. Maples’s attorneys. Mr. Maples’s local counsel, who had not done anything on the case, did not provide the decision to Mr. Maples. This is not odd. How Sullivan & Cromwell treated the decision is odd. By the time the decision was issued, both of the Sullivan & Cromwell attorneys had left the firm. The lawyers had not informed the Alabama court they were leaving the case. Since neither lawyer worked at the firm, the mailroom at the firm, without opening the envelope, stamped the envelope “return to sender” and sent it back to the Alabama court.

Unsurprisingly under the circumstances, Mr. Maples missed the deadline to appeal the decision. Then, the second odd thing happened; the prosecutor in the case mailed the now-unappealable decision directly to Mr. Maples. Once Mr. Maples realized what had happened he tried to appeal the decision or excuse the failure to miss the deadline. The Supreme Court decision will decide whether Mr. Maples can get his ineffective assistance of counsel claim heard.

As to the first oddity, I do not understand how the Sullivan & Cromwell mailroom sent the decision back to Alabama unopened with a “return to sender” stamp on it. That makes absolutely no sense. How can it be that mail coming from a court is not opened by someone at the law firm to see what the court is writing about? The Eleventh Circuit's opinion on the case notes that Sullivan & Cromwell had internally assigned attorneys to take responsibility for the case and that under firm policy the order should have been forwarded to the new attorneys. The opinion however, only states that a “clerical error” cased the order to be returned, unopened, to the Alabama court. While I understand that mistakes happen, I don’t understand how this particular mistake could have happened. Why would a mailroom not open a letter from a court? Mr. Torvik, who—unlike me—has worked at a large law firm, may have some ideas on how this would happen. Or he may not. Even if this were not a death penalty case, not opening the envelope is a gigantic mistake.

The second oddity, the prosecutor mailing the decision to Mr. Maples, caught the attention of Chief Justice Roberts. On page 34 of the transcript Chief Justice Roberts asks “Why did he [the prosecutor] do it? Why did he do it, then? . . . What was the point of it?” After all, if Mr. Maples was represented, as Alabama is claiming to the Supreme Court, then the prosecutor’s letter violates Rule 4.2 of the Alabama Rules of Professional Conduct. Rule 4.2 prevents a lawyer from contacting a represented party. At the oral argument, Justice Scalia called sending the decision to Mr. Maples an “extraneous, volunteered statement to Maples instead of to his lawyers,” and said “I don't -- I don't know what that proves.”

However, the Eleventh Circuit’s opinion suggests what that proves. The Eleventh Circuit said that the prosecutor was providing the decision to inform Mr. Maples that, although his deadline to appeal had passed, Mr. Maples had “four weeks to file a federal habeas petition. [The prosecutor] gave Maples the address to file a federal habeas petition and informed him how to seek new counsel if he wished.” (Opinion at 4-5) (emphasis mine). That is, despite what Alabama is now claiming to the Supreme Court, the prosecutor didn’t think that Mr. Maples was being represented by anyone. It would have been nice if Alabama’s Solicitor General could have acknowledged this at oral argument.

On page 41 of the transcript, Justice Alito asked Alabama’s Solicitor General this question:
You can see from these questions that the arguments that you're making in this capital case, which is sui generis, are pushing the Court to consider rules that would have far-reaching effect, such as a rule that places upon a clerk of the court a constitutional obligation to serve counsel with important documents in the case similar to the constitutional obligation to serve initial process in the case. And the question that I would like to ask is whether this -- the -- whether you as the Solicitor General or the Attorney General of Alabama have an obligation to push this matter in this way. This is a 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 get a decision on the merits of that? Why push this -- this technical argument?
(emphasis mine.) Alabama's Solicitor General doesn’t really answer the question. However, I think the reason for this is found in the Supreme Court’s opinion in Bowles v. Russell. That was the case where a federal habeas petitioner missed a deadline for filing an appeal because the judge who denied the petition told the petitioner the wrong deadline for appealing. The Supreme Court, held that by missing the deadline the petitioner lost his right to appeal even though it was the court’s fault that the deadline was missed. After all, if a hyper-technical argument can win one Supreme Court case, it can certainly carry the day here, right?


  1. I thought I read a while back that Sullivan & Cromwell ha a policy of assigning pro Bono cases to he attorneys themselves rather than the firm. I guess I could Google this, but I'm watching the Brewers.

  2. If that is the policy than the failure of the two lawyers to tell their client or the Court is not just baffling, it is inexcusable. That said, I doubt it is the policy given that Sullivan & Cromwell is taking credit for the pro bono effots of its lawyers.
    Also, note that Sullivan & Cromwell assigned attorneys to Maples file when the two attorneys left the firm. This suggests that the policy you mention doesn't exist.


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