A failure of the bureaucracy might result in some justice.

We continue our coverage of the trial of Major Nidal Hasan.  You might recall that Major Hasan's trial for murder in connection to a shooting at Fort Hood has been delayed while the issue of whether Major Hasan should be forced to shave for his trial was appealed.  The end result of the appeals was that the judge who ordered Major Hasan be shaved was removed from the case.  Yesterday, Major Hasan appeared in front of his new judge for the first time.  Let's see how that went.

Even delays come to an end.

Back in October, we did a post on how Nidal Hasan, the man charged with killing thirteen people and wounding more than two dozen more in a shooting rampage at Fort Hood, had his trial indefinitely delayed by not agreeing to shave his beard.  That delay tactic may not work much longer.

The Outer Limits of the First Amendment

Out in California, they sure do vote on a lot of stuff.

For example, Los Angeles County had a ballot initiative this year about whether actors in pornographic films should be required to wear condoms. The idea, apparently, is that this will improve the public health by reducing the spread of sexually transmitted diseases. However, county lawmakers opposed the measure because it will require the creation of a new bureaucracy:

The county has said the law, pushed by AIDS activists concerned about disease outbreaks, forces the establishment of a new bureaucracy, complete with inspection schedules, a permitting process, a training program for dealing with bodily fluids and a special vault for evidence seized from movie sets. County employees could even be called upon to screen X-rated titles for condom compliance.

What's more, not even public health officials in Los Angeles county supported the measure:

County officials said they were in favor of condom use, but didn't support new local action because the state had jurisdiction for workplace safety and, in any case, enforcement would be too difficult. Dr. Jonathan Fielding, the county health officer, wrote in a report this summer that it would be challenging to identify "underground, inconspicuous, intentionally non-compliant filmmakers." County lawyers also said they worried that the measure violated the 1st Amendment.

Nonetheless, the measure passed and, as County supervisor Zev Yaroslavsky said, "People voted for it, and they're entitled to have it on the books. It's a challenge we're going to have to confront."

Pornographers, of course, are in an uproar and are threatening to take their business elsewhere:

The passage of the law created an outcry Wednesday in the adult entertainment industry. Porn producers have long said consumers will not purchase movies in which actors wear condoms and on Wednesday, executives and directors once again threatened to move from long-time production sites in the San Fernando Valley to other California counties, Las Vegas or Hungary, Europe's center of adult moviemaking.

Some thoughts:

1) I never thought I'd see the day where government officials in an urban county would oppose a law on the basis that it would create too much bureaucracy but then the people would go ahead and overrule them by saying, in effect, "we want more bureaucracy!" Truly, we get the government we deserve.

2) It seems to me that the lawmaking system that permits such a thing to occur is sub-optimal. In other words, it is too easy to get these kinds of measures on the ballot in California.

3) I am looking forward to the First Amendment fight over this new law. Porn has often been at the center of First Amendment jurisprudence. Indeed, under the standard set forth in Roth v. United States, the Supreme Court was constantly reviewing pornography to determine whether it was "obscene" and therefore beyond the First Amendment's protection. This led to one of the Supreme Court's great moments, in Jacobellis v. Ohio, when Justice Stewart admitted that he could formulate no legal standard to separate obscenity from protected material but "I know it when I see it." The current standard on obscenity, set out in Miller v. California has essentially ended such investigations and allowed hard-core pornography to proliferate freely. But the proliferation is partly because neither the pornographers nor the prudes want to test the boundaries of the law, for fear of enshrining an unfavorable regime. In other words, the prudes are waiting for their moment. Maybe this is it. (But probably not.)

Rules are rules

The Chicago Tribune reports that man charged with killing thirteen people and wounding more than two dozen more in a shooting rampage at Fort Hood has had his trial indefinitely delayed.  Why has the trial been delayed?  The suspect will not agree to shave.

Inmate on death row not responsible for mail room mistakes

Back in October, I posted about the unusual case of Cory Maples. The original post is here. Today the United States Supreme Court ruled on the case. The Court ruled 7-2 that Mr. Maples can bring an ineffective assistance of counsel claim despite the fact that the deadline for such a claim was missed because his law firm's mail room never opened or provided him with an order that he needed to perfect his claim. The Court's order and dissent are here. Adam Liptik's summary of the case is here. While I would like to believe this decision signals the end of Courts punishing litigants for hyper-technical violations of rules, I doubt the case will be read that broadly.

On a lighter note, I was amused by the fact that Justice Scalia's dissent, which includes the line "Technology is destiny" was published the same day as the SOPA, PIPA protests are being held on various websites.

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?

I am not dictating a legal theory.

Actually, I thought there were two interesting things about the story. Make that two additional interesting things about the story. As a former resident of Milwaukee, I was struck by the fact that, unlike the major parties, "independents are allowed a five-word statement of purpose on the ballot to explain to voters what their candidacy is about." I lived in Milwaukee for 16 years after I became legal voting age and I cannot remember ever seeing a statement of purpose from a candidate on a ballot. So, I assume the statute or rule allowing the statement is relatively new or I have poor powers of observation. If the former, I wonder how the rule got passed. One would think that support of at least some major party members was needed and that they would want a statement of purpose by their names as well.

The other thing I thought was interesting was that, according to the article, the decision to not allow Ms. Griffin to use her preferred statement of purpose was made by a single staff member of the Wisconsin Government Accountability Board. Ms. Griffin appealed that decision to the actual board. The board voted 3-2 in favor of Ms. Griffin. However, by state law, the board can only act, in this case overturn its staff member's decision, if 4 of the members agree. Initially, I thought why make a board that needs a super majority to act? But as the second link makes clear, the board has 6 members so 4 is a majority if all vote. In Ms. Griffin's case, the question becomes why give a board member who doesn't show up a veto power over the board? Shouldn't it be a majority of voting board members? Isn't this especially true when all the board is doing is supervising its staff?

In any event, I hope we haven't heard the last of this case. Ms. Griffin has an interesting speech issue. As one of the board members noted, her position statement, while offensive, is not obscene or pornographic. One also wonders if the rule or statute allowing the position statement for independent candidates but not major party ones could stand a constitutional challenge. It certainly discriminates based on the identify of the speaker. Normally, First Amendment jurisprudence doesn't allow that.