Good News for Death Row

The Court holds that an inmate wasn't badly represented; his lawyers were so feckless that he had no lawyers at all.

The Court holds that an Alabama inmate wasn't badly represented; his lawyers were so feckless that he had no lawyers at all.


"Abandoned by counsel," Justice Ruth Bader Ginsburg wrote for the Court Wednesday, Alabama death-row inmate Cory 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. In these circumstances, no just system would lay the default at Maples' death-cell door."

Ginsburg's restrained fury appears in an opinion representing seven Justices (Justice Samuel Alito joined Ginsburg's opinion, but also wrote an interesting separate concurrence) in which the Court held that Maples, facing execution in Alabama, could not be bounced out of federal court on a habeas corpus appeal because his volunteer lawyers, their giant corporate law firm, and his local counsel all basically forgot they were representing him and allowed a crucial appeal deadline to slip past. Justice Antonin Scalia dissented, joined by Justice Thomas, in an opinion that had an oddly antique tone.

Maples' appeals point to the flaws of Alabama's grotesque system of "justice." Alabama, unlike most other states, imposes few special qualifications of training and experience on lawyers appointed to represent defendants facing the death penalty. Appointed lawyers are offered absurdly inadequate payment -- a cap of $1,000 for the thousands of hours of out-of-court work a conscientious lawyer must perform, and only $70 an hour for court appearances. After conviction, condemned indigent prisoners are not entitled to any state-funded representation. "[A]s of 2006, 86% of the attorneys representing Alabama's death row inmates in state collateral review proceedings 'either worked for the Equal Justice Initiative (headed by NYU Law professor Bryan Stevenson), out-of-state public interest groups like the Innocence Project, or an out-of-state mega-firm,'" Ginsburg's opinion notes.

The Court held that Maples had not been poorly represented; he had been abandoned

In Maples's case, two junior lawyers at mega-mega-firm Sullivan & Cromwell stepped forward. His claim was that his inexperienced Alabama lawyers were ineffective at his trial. Because Alabama law requires an Alabama bar member to act as local counsel in such an appeal, a Huntsville lawyer named John Butler agreed to serve that role.

It's hard to overstate the importance of volunteer lawyers in making our justice system work. Without private lawyers willing to give up their time "pro bono," the system would have far more dangerous cracks than it does. But a client is a client, and a lawyer, "pro bono" or not, is obligated to be a zealous advocate until and unless he or she properly withdraws from the case, offering notice to the client.

In this case, no one seems to have taken that requirement seriously. From the beginning, Butler insisted that he would only be a name on the page. "Given his lack of 'resources, available time [and] experience,' Butler told the Sullivan & Cromwell lawyers, he could not 'deal with substantive issues in the case,'" Ginsburg's opinion notes. Such a reservation is highly questionable -- representation is a legal obligation, not a favor.

But things got worse.  Maples's two Sullivan lawyers left the firm -- one to be a judicial clerk and the other to work for the European Commission. Alabama law required them to file a notice of withdrawal from the case; they didn't. Sullivan should have supervised their exit and either reassigned Maples's case to another lawyer or made sure the court was notified. It didn't.

Months later, a lower court in Alabama denied Maples's petition, giving him 42 days to appeal. The clerk of court sent notices to the two Sullivan lawyers and to Butler. The Sullivan mail room send the notices back unopened. Butler ignored his, and the clerk of court made no further efforts at notice. (Maples knew nothing; under Alabama law, he could not be notified directly.)

When the disaster came to light, the firm stepped in again, seeking to reopen to state case and, when that failed, applying for federal habeas. The lower federal courts held that Maples had "defaulted" on his state appeal without "cause."

Defendants who miss deadlines because their lawyers make a mistake aren't entitled to relief. But in Maples, the Court held that Maples had not been poorly represented; he had been abandoned. The lawyers' mistake couldn't be his, because they weren't bothering to represent him. "Maples was disarmed by extraordinary circumstances quite beyond his control," Justice Ginsburg wrote.

Beyond the words about "no just system," the Court's opinion is devoid of soaring rhetoric. Also low-key is Justice Alito's concurrence, an attempt to limit the case's precedential effect. Alito agreed that Maples was "effectively deprived of legal representation." But he saw no connection between what happened to Maples and Alabama's system, if that is the word, of justice. "I do not think that Alabama's system had much if anything to do with petitioner's misfortune," he wrote. "What occurred here was not a predictable consequence of the Alabama system but a veritable perfect storm of misfortune." Prisoner-rights advocates should not expect his vote in challenges to the system as a whole.

Alito's conservatism is distinctly lawyerlike; whatever one thinks of the results he reaches, he usually proceeds to them like a conscientious appellate judge. Scalia not so much. His dissent deploys abstract conservative ideology to argue that Maples's chance at life is a small sacrifice to make to preserve Alabama's dignity as a state. After all, he argues, even after the two Sullivan lawyers withdrew, Maples still had Butler and in some sense the firm itself. Allowing him to litigate his claim now imposes a "significant cost[]" on Alabama by challenging "the primacy of their courts."

The Court has held that state courts must do more than mail a single notice when they seek to sell an individual's property for non-payment of taxes. But Maples' case "involved not the institution of proceedings against an unwitting litigant, but rather the issuance of an order in a pending case that was instituted by Maples himself."

Who but Justice Scalia could claim that a prisoner facing death without legal assistance is a "witting litigant," entitled to less protection than a tax defaulter? His approach already seems so -- I don't know -- so Rehnquist Court. Alito-style conservatism, for good and for ill, may be the wave of this Court's future.

Image: Alabama Department of Corrections