Argument preview: What “cause” will excuse default in capital case?
on Oct 4, 2011 at 9:50 am
When the Court hears oral argument this morning in Maples v. Thomas, it will add the latest chapter (and, if Maples is ultimately unsuccessful, perhaps one of the final chapters) in a saga that has spanned well over a decade, and which bears more than a passing resemblance to a John Grisham novel. The Court will also have before it a broader question that has come to it with increasing frequency, that of fairness and the death penalty.
The case now before the Court has its earliest origins in two 1995 murders, to which Maples confessed in writing. Because Maples faced a possible death sentence, his state court trial in Alabama had two parts: first, the jury found him guilty of two counts of capital murder; second, by a vote of ten to two (the minimum vote needed to do so), it recommended that he be sentenced to death.
When Maples’s direct appeals were unsuccessful, he sought state post-conviction relief. Unlike virtually all other states, Alabama does not provide counsel to death-row inmates for their state post-conviction proceedings. However, two associates at Sullivan & Cromwell, a prestigious New York law firm, agreed to represent him pro bono. In August 2001, they filed a petition for post-conviction relief alleging (among other things) that Maples’s trial lawyers had been constitutionally ineffective – by, for example, failing to investigate Maples’s mental health and history of drug abuse.
In May 2003, the state trial court notified Maples’s local counsel and the Sullivan & Cromwell attorneys (but not Maples himself) by mail that it had denied his petition for post-conviction relief. Unfortunately for Maples, both of his New York lawyers had left Sullivan & Cromwell nearly a year before, without notifying the court. And the mailroom at the firm returned the unopened envelopes, both now bearing the phrase “Returned to Sender,” to the Alabama court, which did not make any additional efforts to notify Maples or his counsel of its order. The local counsel did nothing.
In August 2003, well after the deadline to appeal had passed, Maples finally learned that the court had denied him relief. Other Sullivan & Cromwell lawyers then sought leave to appeal the order out of time, but were unsuccessful. Later that same month, Maples’s new lawyers filed a federal habeas petition, once again raising claims that his trial counsel was ineffective.
The district court denied relief. It reasoned that Maples had procedurally defaulted his ineffective assistance claims by missing the appeal deadline in the state post-conviction proceedings. Even if his post-conviction counsel were ineffective, the court continued, that was not the kind of “cause” that could excuse his default.
On appeal, the Eleventh Circuit – by a vote of two to one – affirmed. The panel majority held that Maples’s post-conviction claims were procedurally defaulted, that the state’s rules on the timeliness of post-conviction appeals were adequate, and that Maples could not show “cause” for the default “because there is no right to post-conviction counsel,” so that he as a consequence had no right to constitutionally effective counsel. Judge Rosemary Barkett dissented. In her view, Alabama’s timeliness rule was not adequate because it was not consistently applied. But in any event, she would have held that “the interests of justice also require that Maples be permitted review of his claims when the alleged default of those claims occurred through no fault of his own.”
Maples – now represented by former Solicitor General Gregory Garre, whom Sullivan & Cromwell hired to represent him – filed a petition for certiorari, which the Court granted last spring limited to the question whether there was “cause” to excuse his procedural default.
In their briefs on the merits, the two sides present diametrically opposed views of the case. Maples places much of the blame for the default on the state itself: when the notices to his New York lawyers were returned with the marking “Returned to Sender,” the court simply put the notices in a drawer. Maples attempts to link the case to the Court’s 2006 decision in Jones v. Flowers, in which it held that when a mailed notice of a scheduled tax sale is returned to the tax commissioner marked “unclaimed,” due process requires the state to take “additional reasonable steps” to notify the property’s owner before selling it. Certainly, he contends, due process requires similar efforts “when a life is at stake.”
Maples also downplays the fact that the notice was mailed to, and received by, the local attorney who appeared on the petition for post-conviction relief. Instead, he argues that the conduct of his New York attorneys in failing to notify the court of their departure from Sullivan & Cromwell or provide substitute counsel constituted cause to excuse the default and cannot be attributed to him.
The state has a very different take on the facts of the case, which it characterizes as resulting from a series of mistakes by Maples’s attorneys. Sullivan & Cromwell did not abandon Maples, it insists; instead, the partner (and other attorneys) who remained after the team after the departure of the two lawyers simply failed to complete the necessary paperwork to ensure that any orders in the case were sent to them. Similarly, Maples’s Alabama attorney “mistakenly assumed that other members of the team [would] handle the appeal.” Thus, in the state’s view, the case is governed not by Jones v. Flowers and its due process requirement but instead by the Court’s 1991 decision in Coleman v. Thompson, holding that mistakes by a death row inmate’s counsel did not constitute cause to excuse the inmate’s failure to appeal.
Moreover, in the state’s view the court cannot be blamed for Maples’s predicament: service was consistent with both state law and due process because one of his attorneys did receive notice of the court’s orders; but in any event any additional effort by the clerk – to the extent it were even necessary – would only be required as a result of the mistakes made by Maples’s own attorneys.
The egregious facts of Maples’s case seem likely to help his prospects; it is not difficult to imagine a scenario in which at least five Justices are sufficiently troubled by the prospect that he could – through no fault of his own – be executed without ever receiving an opportunity to raise very plausible ineffective assistance of counsel claims. But the fact that at least his local attorney did receive notice may make it difficult for the Court to articulate a narrow rule in his favor. And regardless of the outcome, the Maples case could further stoke the debate over the fairness of the death penalty, and in particular the adequacy of representation available to capital defendants.