published Wednesday, October 5th, 2011

A case of returned mail and an execution appeal

By MARK SHERMAN

Associated Press

WASHINGTON — The tale of returned mail and a missed deadline might seem comical if it did not involve a man trying to stave off execution. Supreme Court justices had harsh words Tuesday for lawyers who abandon their clients and a state legal system that does not seem overly concerned.

At the end of a lively hour of arguments, it appeared the court would order a new hearing for Alabama death row inmate Cory Maples, who had lost the chance to appeal his death sentence because of a mailroom mix-up at the New York law firm Sullivan and Cromwell and the diffidence of a local court clerk.

Two Sullivan and Cromwell lawyers had been pressing Maples’ claim that his earlier legal representation was so bad that it violated the Constitution — until they both left the firm without telling him or the Alabama courts.

Deadlines usually matter a lot at the Supreme Court, where a few years back a defendant who was late to file an appeal because the judge gave his lawyer the wrong date still lost his case. Another principle the court often holds dear is that it’s tough luck for defendants whose lawyers make mistakes.

But Tuesday’s case, perhaps because it involves the death penalty, was the rare instance when the court seemed prepared to grant some leeway on both counts.

Justice Samuel Alito is a former federal prosecutor who often votes for the government in criminal cases. But he said he did not understand why Alabama fought so hard to deny Maples the right to appeal when the deadline passed “though no fault of his own, through a series of very unusual and unfortunate circumstances.”

Maples’ case had its origins in the execution-style killings of two men in Morgan County in northern Alabama, in 1995. A jury convicted Maples of the crimes and sentenced him to death by a 10-2 vote. One of Maples’ lawyers told jurors the defense team “may appear to be stumbling around in the dark.”

Whatever the shortcomings of Maples’ trial lawyers, he appeared to “win the lottery” when the Sullivan and Cromwell lawyers agreed to represent him for free in his appeals, said Gregory Garre, who argued for Maples at the Supreme Court. The New York-based firm has 800 lawyers and offices in a dozen cities.

From December 2001 until May 2003 not much happened in the case. But then an Alabama court rejected Maples’ claims that were prepared and filed by the firm’s lawyers. The court sent a notice to the lawyers, as well as a local attorney in Alabama, starting a 42-day clock for appealing the order.

What neither the court nor Maples knew was that during the previous summer both lawyers left Sullivan and Cromwell, one for a job in Europe and the other to clerk for a federal judge. “They never told the court, and they never told Maples,” Justice Ruth Bader Ginsburg said Tuesday.

The notices sent to the firm were not passed to other lawyers but were returned to Alabama. The local lawyer did nothing, thinking the New Yorkers were on the case.

The court clerk likewise did nothing when the notices came back indicating the lawyers were no longer at the firm, even though the lawyers’ personal telephone numbers and home addresses were in the court’s file on Maples.

Justice Elena Kagan asked Alabama Solicitor General John Neiman in an almost mocking tone what he would have done if an important notice in a capital case had been returned to him. “Huh, should I do anything now?” Kagan said.

At one point, Neiman pointed out that the local lawyer for Maples did receive the notice, which is enough under Alabama’s court rules.

But Chief Justice John Roberts, who also often rules against defendants, pressed Neiman to tell the high court whether the lawyer did anything on Maples’ behalf, other than make it possible for the New York lawyers to represent Maples in Alabama courts.

“You still haven’t told me one more thing,” an irritated Roberts told Neiman.

Garre, who served as the top Supreme Court lawyer for President George W. Bush, said the clerk’s inaction in a capital case was among several “extraordinary and shocking events“ that should lead the justices to rule for Maples.

The state had only one justice on its side in the questioning, Antonin Scalia. In repeated and forceful comments, Scalia said he did not see a reason to grant Maples an exception from the rules.

Only after the deadline passed did Maples find out what happened — or rather, didn’t happen — on his behalf. Other lawyers at Sullivan and Cromwell tried to continue the appeal. The firm did not respond to requests for comment from The Associated Press.

Both state and federal courts ruled that Maples was out of luck.

Garre said Maples just wants the chance to get his claims heard by a judge, who could rule against him and leave the death sentence in place. “Mr. Maples is not asking to be released from prison,” he said.

It was not clear Tuesday how far the court might go on Maples’ behalf. The justices could order a lower court to hear his claims that his lawyers were inadequate. But the court also could more narrowly lay out rules for when deadlines may be waived and allow a lower court to decide whether Maples’ case qualifies.

In either event, Maples seems likely to get a new hearing before he might have to face execution.

Support for Maples has come from former Alabama judges, the NAACP, the American Civil Liberties Union and other civil rights groups. Twenty states and a nonprofit group that backs the death penalty are supporting Alabama’s call for the high court to uphold the death sentence.

A decision is expected by spring.

The case is Maples v. Thomas, 10-63.

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Follow Sherman on Twitter at http://www.twitter.com/shermancourt

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