Tom Goldstein Publisher

Posted Wed, October 5th, 2011 9:28 am

Maples v. Thomas

Today in the Community we discuss a merits case for the first time.  The Maples case involves the requirements for pursuing a federal habeas corpus petition.  The Court is considering whether and when a lawyer’s “abandonment” of his client in a criminal case constitutes “cause” for failing to comply with a state procedural requirement.  Amy’s preview of the case is here, and the case page is here.  Some press reports of the argument are here (AP) and here (New York Times).  Give us your thoughts on the case and on the larger issues it raises.

  • Tom Goldstein – 0 Promoted Comments

    In this thread, discuss the Court’s cause and prejudice jurisprudence generally.

    • Kent Scheidegger – 6 Promoted Comments

      The “cause and prejudice” rule is a corollary to the exhaustion rule. The latter is one of the rules created to address the basic dilemma of federal habeas for state prisoners — how to keep the remedy available in the very few cases of a true miscarriage of justice for people grievously wronged by the state court system, while at the same time preventing it from becoming a routine second appeal or substitute for an appeal in the vast bulk of cases.

      The requirement to exhaust state remedies before turning to federal habeas was created by the Supreme Court in 1886 and codified by Congress in 1948. Initially, the Supreme Court recognized that if the defendant defaulted his state remedy, then the exhaustion requirement was not met and federal habeas was simply unavailable. (Daniels v. Allen, decided with Brown v. Allen, 1953.) Daniels was overruled without saying so, and with thin justification, in Fay v. Noia, 1963, one of the most dishonest opinions in the history of the Supreme Court.

      Development of a substitute for Daniels’ simple but severe rule was uneven. The rule that eventually emerged was that a defaulted claim would be available on federal habeas despite the default if the petitioner showed cause for the default and resulting prejudice. The prejudice prong often means little more than a having a meritorious claim. For ineffective assistance and Brady claims, the most common, it merges with an element of the claim.

      Yet in Murray v. Carrier, 1986, the Court recognized that there might be compelling cases of innocence by petitioners who could not meet the cause and prejudice test. The Court created an additional “safety valve” of actually innocence as well. This rule is part of a general trend toward recognition that Judge Friendly was right; innocence is relevant. It deserves a higher place than it has in consideration of whether to make exceptions to procedural rules.

      What does “innocent” mean in capital cases. First and most obviously, it means the wrong man was convicted. This is, obviously, the most compelling case to make an exception to procedural rules.

      Second, the Court decided in Sawyer v. Whitley, it means sentencing a person to death who is not legally eligible for that punishment, e.g., because he is guilty of a lower degree of homicide.

      What about the discretionary sentencing decision? Can mitigating circumstances make a person “innocent of the death penalty”? No, the Court said in Sawyer. Such an exception would effectively eliminate the rule. The defendant can always come up with more mitigation and claim the trial lawyer should have introduced it at trial.

      Maples definitely does not qualify for the actual innocence exception. He gunned down two men who thought he was a friend just to steal the car and money of one of them. His “too drunk to form intent” claim is ludicrous.

      Ineffective assistance of counsel is “cause” in proceedings where the defendant has a constitutional right to counsel and not otherwise, the Court decided in Coleman v. Thompson. Maples is trying to squeeze through a loophole in Coleman language regarding “abandonment” by the lawyers, but he was in fact represented by lawyers at a prestigious law firm throughout his proceedings. They simply screwed up.

      Should we expand the “cause” exception to cover this circumstance? In my view, we should keep the “cause” exception limited to its present scope and look to the “innocence” exception as the mechanism for correction of injustices. This case is definitely not a miscarriage of justice, and there is no need for expansion here.

      • Michael Williams – 2 Promoted Comments

        I’m afraid I can’t agree your suggestion that we shift focus from “cause and prejudice” standard to actual innocence.

        For one, the Court has been exceptionally squishy in its attempts to define an actual innocence claim. To be sure, we have a set standard for so-called “gateway” actual innocence claims; Schlup v. Delo tells us that “a petitioner must show that it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt.” But what on earth does that actually mean? As Justice O’Connor noted in her Sclup concurrence, that standard jumbles up two different standards to create one confusing mess. It’s hard to say with any specificity how the standard actually applies, so the test has become something of an “I know it when I see it” standard. And does this standard require newly discovered evidence or merely newly presented evidence?

        For another thing, actual innocence claims–even of the so-called gateway variety–can place an exceptional burden on our system. When a prisoner lodges this sort of claim (assuming he presents any kind of colorable argument), the court is forced to go back through an entire case, reweighing all the evidence, and then consider both (a) new evidence and (b) evidence that was not admissible at trial but nevertheless presently available and relevant. In a typical death penalty case, that’s a mammoth task, especially given that the a death penalty habeas court is often wrestling with many other complex issues at the same time. As for the litigants themselves, the prosecution is forced to re-argue the merits of its case while a petitioner is forced to re-mount a full defense from jail. Not exactly light work.

        Placing more emphasis on innocence would also be inconsistent with the principles underlying post-conviction review. Evidence typically becomes less reliable above over time (not more); perhaps for that reason, post-conviction courts have traditionally focused on constitutional error rather than factual innocence. And let’s not forget the significant sovereignty concerns of a federal court engaging in a reevaluation of a state court’s factual determination of guilt.

        In sum, while “cause and prejudice” might have its problems, that shouldn’t lead us to embrace a doctrine that would probably bring even more problems of its own.

      • Owen Roth – 1 Promoted Comment

        I agree with Mr. Williams, shifting the focus of efforts to escape procedural default to “actual innocence” is problematic. Collateral review, at bottom, exists to permit the petitioner to raise arguments going to the fairness of his trial. Actual innocence, as I understand it, is a way of showing that the trial was not fair because it resulted in the conviction of an innocent man (or, “innocent of death” in certain contexts). But this is not the only way the state can deny an individual a fair trial, and challenges should be able to correspond to perceived errors. And, opportunities for mischief are rife. Suppose the state unevenly applied a procedural bar rule and deprived a petitioner the ability to present his claims on state collateral review. Is such a petitioner to be denied federal habeas review for lack of exhaustion unless he can show actual innocence? Why shouldn’t it be enough to show that he was denied a fair opportunity to exhaust?

        Turning to the argument transcript, it seemed to me that Justice Alito raised a very interesting question, which is how to distinguish between actual abandonment and constructive abandonment. If abandonment claims can be raised regardless whether the client had a right to counsel, and if claims of actual and constructive abandonment cannot be easily distinguished, then this case has the potential to create a massive exception to the rule that there is no right to a lawyer on collateral review. If I have understood this, is Maples persuasive in saying that the cases can be limited to instances of egregious abandonment? Intuitively, that sounds like a burden to put on courts, but it also doesn’t seem that different from IAC claims that courts evaluate already.

        • Kent Scheidegger – 6 Promoted Comments

          The subject here is not collateral review generally but federal habeas for state prisoners. The state appeal and state collateral review are available to deal with the standard “fairness” issues. Further review after that should be reserved for extreme cases.

          Although adjudicating actual innocence is indeed a burden in the cases where it arises, we need to keep in mind that it is only a small fraction of the cases where there is even a plausible claim of innocence. Maples is typical in this sense; he is clearly guilty as sin.

          • Andrew Shear – 0 Promoted Comments

            What does it mean to say that collateral review is “available” when no meaningful review is actually received, as in this case, through no fault of the petitioner. In Alabama, as in many states, collateral review has become a minefield for the unwary, uninformed, and poorly represented.

      • roxanne friedman – 4 Promoted Comments

        Scheidegger has turned the idea of federal habeas inside out. Federal habeas exists because a federal constitutional right should be adjudicated in a federal forum. That a person actually innocent of a crime is being punished for it is a violation of federal due process and equal protection rights; innocence is not the sine qua non of habeas relief.

        The only reasons advanced why there should not be a “second appeal” in any state case involving federal constitutional questions are (1) an interest in finality; and (2) a desire to remove from the federal docket repetitive, non-meritorious, or uninteresting habeas cases. I put aside the second justification, certainly the many insurance cases which end up in federal court are just as repetitive, non-meritorious, or uninteresting; the only reason they are brought is that the claim has such a high value that even a low probability of success or of coercing a smaller settlement justifies taking a chance.

        As for the interest in finality, it comes down to a desire to administer punishment, in Scheidegger’s phrase, crime and consequences. The reason we need an 8th Amendment is because Lady Justice, whose interest is in repairing tears in the social fabric, turns convicts over to prison systems that for the most part act with impunity to carry out the vengeance denied the victim’s family. It was, after all, the Alabama prison system that handcuffed prisoners to a hitching post in the hot sun in this 21st Century. Of course, if we go back to 19th and 20th Century Alabama, we see the criminal justice system used to re-enslave the free Black population and lease them out to their former owners. And in the 20th and 21st Century, we see the criminal justice system used to warehouse people with mental illness whose previous treatment facilities were found not to comply with 8th Amendment standards.

        In Alabama, just as women as well as men turned up at lynchings, Lady Justice herself seeks actively to prevent the adjudication of prisoners’ claims. The state’s arcane and idiosyncratic rules of criminal procedure, which punish with waiver such failures as not wording an exception properly or not include the entire text of a relevant statute or constitutional provision, are clearly designed to prevent the doing of substantial justice while serving as an “adequate independent state ground” preventing Supreme Court review.

        Maples had substantial legal questions that he was entitled to have adjudicated before being executed. His lawyers abandoned him before those claims could be adjudicated. At numerous points in the process, the prosecutor could have taken steps to assure that Maples got his day in court. At every point he chose punishment over substantive legal rights. This is the quality of Alabama justice.

        • Kent Scheidegger – 6 Promoted Comments

          “Federal habeas exists because a federal constitutional right should be adjudicated in a federal forum.”

          That is the position that proponents of broad habeas review have always taken, but it has always been disputed. Generally speaking, state courts have always been considered competent to adjudicate federal questions, with only the US Supreme Court having appellate jurisdiction to reverse them. Want to challenge your state taxes on federal constitutional grounds? You *must* file in state court; Congress has removed jurisdiction from the federal courts. If SCOTUS denies cert., that’s it. No federal forum.

          Congress largely rejected the federal forum argument when it enacted the so-called “deference” provision of AEDPA. Lower federal courts no longer get to decide if a state court decision was “right” in the federal court’s opinion. (Experience showed that the federal courts’ opinions were often wrong, in the sense that the Supreme Court decided to the contrary later.) Now federal habeas courts are limited to deciding if the state court unreasonable applied Supreme Court precedent, regardless of what circuit precedent may say.

          “Maples had substantial legal questions that he was entitled to have adjudicated before being executed. His lawyers abandoned him before those claims could be adjudicated.”

          Not true. Those claims were adjudicated on the merits in the state circuit court.

          The attack on Alabama is irrelevant to this case. There is nothing arcane about a rule that you have appeal an adverse decision within a certain, fixed time period. Almost all jurisdictions in this country have such a rule.

    • Joseph Hoffmann – 2 Promoted Comments

      Regardless of how the Supreme Court decides the case, the Maples saga illustrates two key problems with our criminal justice system.

      First, we need to decouple our thinking about capital habeas and non-capital habeas. Frankly speaking, the Maples case would never have caught the attention of the Supreme Court – nor that of bloggers like us – if it weren’t a capital case. As both Judge Barkett (dissenting from the 11th Circuit’s decision in Maples) and Justice Alito (in his questions from the bench during the Maples oral argument) recognize, the simple fact that Cory Maples faces execution is what makes his case impossible to ignore. That’s for two distinct reasons: the capital sentencing decision is largely discretionary (hence Judge Barkett’s comment that “if even one [more] juror … had voted for life,” the sentence would have been different), and the consequences of making a mistake are irrevocable and unthinkable.

      Why shouldn’t the rules of federal habeas litigation acknowledge the obvious – that “death is different”? In capital cases, why shouldn’t we overlook most procedural defaults (except, perhaps, a “deliberate bypass” by the defendant) and get down to the merits? When a defendant’s very life is on the line, why do we continue to spend so much time and energy on the arcane technicalities of cause and prejudice, and whether a state procedural rule is applied arbitrarily or regularly? As much as law professors like me might find such arguments intellectually interesting, is that really how we want to decide whether a particular death-row inmate lives or dies?

      The federal habeas courts seem to understand intuitively that death is different. Recent statistics reveal that capital habeas and non-capital habeas already differ sharply on the ground. In non-capital habeas cases, federal district courts provide relief less than 0.4% of the time. In capital cases, the habeas relief rate is more than 30 times higher. And the Supreme Court’s behavior (see, e.g., House v. Bell, or the extraordinary order for an evidentiary hearing in the Troy Anthony Davis case) suggests that the Court is increasingly concerned about the possibility that an error in a capital case might lead to the execution of an innocent person.

      It’s time to accept reality, and restructure the rules of capital habeas to ensure prompt disposition of the merits of every capital case. This can easily be done while still preserving the current procedural barriers to habeas relief (or even, as Professor Nancy King and I have argued recently, see, enacting new habeas limitations) for the vastly larger universe of non-capital habeas cases.

      Second, and more importantly, we need to figure out a better way to address persistent deficiencies in defense representation in the states. The current post-hoc approach, which relies on post-conviction litigation to correct and deter the unprofessional mistakes of trial lawyers, most certainly will not solve the problem. Even if Maples obtains relief in the end on his ineffective-assistance claim, that will do nothing to save future defendants, in Alabama and elsewhere, from suffering the same fate.

      If we really care about inadequate defense representation at trial, we must focus on prevention, not cure. Instead of spending so much time and energy trying to decide — after the fact — whether Maples’s trial lawyers did what they were supposed to do, we should put our resources into helping the states improve the quality of defense lawyering in the first instance.

      A really good first step would be to create a new Federal Center for Defense Services, with funding to conduct research on best practices and to provide matching grants and other incentives for state-level reforms. Such reforms will take time, and they won’t be cheap. But every dollar spent on such an initiative would surely do more good, for more criminal defendants, than spending the same dollar on the (usually futile) effort to try to identify and correct the errors of defense lawyers after conviction.

      • Carolyn Elefant – 2 Promoted Comments

        In response to Joseph Hoffman’s comment, I agree that this case has drawn a good deal of attention because it is a capital case, albeit one where innocence is not an issue. However, it’s always seemed to me that the case drew particular focus because of the involvement of a large law firm working pro bono. I wonder if this case would have gotten this far if a hapless solo missed an appellate deadline.
        I also agree that resources are grossly mis-allocated in capital cases. As I wrote in a now-20 year old journal article (online here –, the money spent by large firms in the form of foregone billable hours could fund an army of lawyers and investigators at the trial level and avoid having these cases get this far.

      • Kent Scheidegger – 6 Promoted Comments

        The Hoffman and King book is quite interesting with lots of useful information. When it comes to the bottom line, though, I think they get it precisely backwards.

        Consider two defendants. Law school exam style, call them Don and Dave.

        Don is convicted of the highest degree of murder and sentenced to life in prison without possibility of parole. He denies he had anything at all to do with the murder. The prosecution’s case at trial was borderline, and the jury deliberated for many difficult hours before coming to a verdict. He has no new evidence of innocence. However, his federal claim goes directly to the reliability of the evidence used to convict him. (Say, perhaps, undisclosed incentives to a witness against him.) The state court completely blew its review of his case. (Brady? What’s Brady?)

        Dave is unquestionably guilty of murder. He video recorded himself committing rape, torture, and murder. (Yes, some people really do that.) His claims are entirely on the penalty phase of his case. The state supreme court reviewed his claims and reached a decision that is an entirely reasonable application of US Supreme Court precedents, whether or not one agrees with the outcome.

        Should we cut back on Don’s review and enhance Dave’s, relative to current law? Not in my opinion. Just the opposite. Dave has received a punishment within the legal range for the crime he chose to commit. Under no circumstances can that be a miscarriage of justice on the same scale as the imprisonment of an innocent man.

        The relief rates that Professor Hoffman cites do not mean that the original judgments were wrong. They come from a number of factors including (1) the Supreme Court’s inability to agree with itself from one year to the next what the Constitution requires and what it forbids (the “annually improvised … jurisprudence” as Justice Scalia called it), (2) the desire of many federal judges to overturn every capital sentence they can, and (3) the inherently subjective nature of the penalty decision, making the “materiality” prong of Brady and the “prejudice” prong of Strickland much less objective to apply than in guilt determinations.

        • Michael Williams – 2 Promoted Comments

          A brief question: Don’t the experiences of federal courts in assessing “materiality” and “prejudice” suggest these same courts could also be expected to butcher the even more undefined concept of “innocence”?

        • Nancy King – 1 Promoted Comment

          Speaking of relief rates and getting back to the cause and prejudice standard, here are a few observations about the procedural default defense from the 2007 study of habeas litigation in district courts (available here: ), which examined a random sample of habeas cases filed nationwide in 2003 and 2004 by state prisoners serving noncapital sentences, as well as all of the habeas cases filed between 2000 and 2002 by capital prisoners in 13 districts.
          1) Federal district judges regularly enforce the defense of procedural default. In at least 13% of the nearly 2000 terminated non-capital cases, state procedural default was noted as a reason for rejecting at least one claim. Default in capital cases was much more frequent: about half of the terminated cases included a defaulted claim.

          2) District courts appear to be finding default in non-capital cases at roughly the same rate that courts found default before AEDPA was enacted.

          3) Once the defense of procedural default is raised, it is not likely to be rejected. Fewer than 2% of the non-capital cases included a ruling rejecting the default defense. Among the more than 260 terminated capital cases in the study, however, 19% included a ruling rejecting the defense. The study did not speculate about the reason for the higher rejection rate in capital cases, but we can here. Does the difference in rate reflect worse representation in capital trials and appeals leading to more frequent findings of ineffective assistance of counsel as cause? A higher probability that, as compared to non capital cases, the procedural grounds asserted for default in capital cases are inadequate? The reasons Kent Scheidegger posits for the higher rates of relief in capital cases generally — “the desire of many federal judges to overturn every capital sentence they can, and . . . the inherently subjective nature of the penalty decision, making the ‘materiality’ prong of Brady and the ‘prejudice’ prong of Strickland much less objective to apply than in guilt determinations”? The fact that 93% of capital habeas petitioners are represented by counsel who could raise arguements against the default defense, while 92% of non-capital habeas petitioners are not? The study does suggest that miscarriage of justice or innocence is rarely the reason for rejection. In the study sample, possible innocence was the reason for rejecting the default defense and reaching the merits in only one of the capital cases and in none of the noncapital cases.

          4) Statistical analyses suggested that cases in which the court found that a claim was defaulted took longer to finish than cases in which no claims were dismissed as defaulted.

          So how, if at all, might this picture change if the Court rules in Maples that “cause” can be established whenever a petitioner shows “abandonment” by his post-conviction counsel? One might anticipate no dip in dismissals for default if a new standard for showing abandonment is so exacting that few petitioners could meet it, or if the “prejudice” prong and not the “cause” inquiry is doing most of the heavy lifting. Even if a new theory of “cause” would make little difference in the outcome of habeas cases, it would probably lengthen disposition times and increase litigation costs. Alternatively, a new theory of cause may prompt more district judges to join those who now prefer to simply address and deny defaulted claims on their merits, ignoring the complicated cause and prejudice analysis entirely.

        • Joseph Hoffmann – 2 Promoted Comments

          As usual, Kent Scheidegger makes good points. But I disagree with him on two fronts.

          First, while it’s true that Professor King and I have proposed that non-capital habeas should be limited primarily to petitioners with persuasive new evidence of factual innocence, that doesn’t necessarily have to work to the detriment of Don. By hypothesis, Don has a persuasive claim of factual (not just legal) innocence. And Don’s innocence claim is, at least arguably, based on new evidence — namely, the evidence that key trial witnesses against him were given incentives in exchange for their testimony. This should qualify as new evidence because it was wrongly kept from Don, in violation of Brady, and thus the fact-finder at trial never had a chance to consider it as part of the guilt-innocence decision. An even more obvious case would be one in which the prosecution hides material evidence that the crime actually was committed by someone else. Once such evidence finally comes to light, it should qualify as new evidence of factual innocence.

          In short, it’s not the relatively rare Don who should be cut off from non-capital habeas review. Instead, we should cut off the tens of thousands of habeas petitioners who (1) seek to raise procedural claims that don’t seriously undermine the conclusion of factual guilt at all, or (2) claim to be factually innocent but have no new evidence — not even Brady evidence — to support their claim. These kinds of petitions almost never succeed anyway, and we should stop pretending that routine habeas review of such cases serves any worthwhile purpose.

          Second, I also disagree with the suggestion that Dave’s habeas petition is somehow undeserving of review. The basis for my disagreement here is that, in my view, it’s a given that the death penalty should be reserved for the truly “worst of the worst.” In other words, when it comes to the death penalty, it’s not just factual guilt of the capital crime that matters. The distributive justice of the ultimate punishment also matters — and it matters a great deal. In fact, it’s a matter of constitutional dimension. See, e.g., Lockett, Godfrey, Penry, Atkins, Roper v. Simmons, and a host of other Supreme Court cases.

          That’s why I want habeas courts to be able to review legal errors that affect the aggravation/mitigation case and the penalty-phase decision, even for defendants who are concededly guilty of the capital crime. And yes, it is precisely the “inherently subjective nature of the penalty decision” in capital cases — together with the extreme nature of the punishment itself, which is different in kind (not just in degree) from all other punishments — that makes it so important to preserve unrestricted habeas review in capital cases.

          The hypothetical Dave may well be a horribly evil person, but whenever the state decides to end a human life, ensuring that the sentencing decision is free from serious errors — including both factual and procedural errors — seems to me both a legal and a moral imperative. And the aforementioned comparison of capital and non-capital habeas reversal rates strongly suggests that many, if not most, federal judges would agree with me.

  • Tom Goldstein – 0 Promoted Comments

    In this thread, discuss whether the Court has been appropriately attentive to the representation capital defendants have received in cases like Maples.

    • Larry Fox – 1 Promoted Comment

      It is so interesting (and depressing) that the Court is not willing to dignify clear violations of professional standards to secure relief for the hapless principals of these rule-violating agents. Indeed the use of agency law (as if lawyers were file clerks) as the foundation for this analysis makes no sense in a world where the lawyer knows all and the client nothing. The only remedy then left is malpractice which is a hollow remedy indeed for one on death row.

    • Lisa Borden – 1 Promoted Comment

      Until now, the Supreme Court has adopted a disturbing hands off approach with respect to the procedures employed in state post-conviction proceedings. Alabama inmates are the most aggrieved by this approach, since Alabama is the only state that has chosen to provide no post-conviction representation, and in fact proudly proclaims its reliance upon the volunteer assistance of pro bono attorneys, who have traditionally been located in large northeastern law firms. Because there are few standards for and virtually no checks on indigent defense in capital cases at the trial level in Alabama, post-conviction review is especially crucial. However, the Court declined to take up the issue in Barbour v. Allen a few years ago. The pairing of the Maples and Martinez cases brings the issue into sharp focus. If there is a constitutional right to post-conviction counsel, as Martinez posits, then the question in the Maples case would be not whether his counsel abandoned him entirely, but whether they were ineffective. The answer to the latter question is abundantly clear.

    • Steve Hall – 1 Promoted Comment

      It seems reasonably certain from the tone of the justices questions that a majority will move to correct this extraordinary case in some fashion. The real question is to what degree the Court will address the quality of counsel issue which remains a significant problem in death penalty cases. A number of Texas executions have occurred in spite of the lack of federal habeas review. In some instances this was due to counsel who filed what amounted to blank pieces of paper.

    • Kent Scheidegger – 6 Promoted Comments

      Congress addressed the issue of counsel for death row inmates on state collateral review in 1996. It enacted Chapter 154 of 28 U.S.C., which is largely based on a recommendation of a Judicial Conference committee chaired by retired Justice Powell.

      The reform offered states a number of benefits in federal habeas in return for providing competent counsel in state habeas. However, the lower federal courts defeated the law and removed the incentive by giving the law such a severe interpretation that no state received the benefits. As originally written, the law had a conflict of interest in that its application was decided by the same courts that would be subject to time limits if it applied, and they made sure it never applied. The Supreme Court, for reasons still unknown, never corrected them.

      In the Patriot Act renewal bill, Congress took the decision away from the conflicted courts and gave it to the US Attorney General with de novo review by the DC Circuit, the one circuit that does not do state-prisoner habeas. The Justice Department dragged its feet for years on the implementing regulations, but that process is near completion.

      What the Supreme Court needs to do regarding counsel in state collateral review of capital judgments is implement Congress’s solution. It should have done so years ago.

  • Tom Goldstein – 0 Promoted Comments

    In this thread, discuss whether the lower courts have been appropriately deferential to the limitations on habeas corpus enacted by Congress.

    • Kent Scheidegger – 6 Promoted Comments

      In some federal courts, particularly in circuits divisible by 3, reaction to AEDPA is best described as “massive resistance,” analogous to Sen. Harry F. Byrd’s massive resistance to Brown v. Board. In this case, however, federal judges are the perpetrators of the resistance rather than the enforcers of the law.

      This resistance can be seen in the number of times federal courts of appeals are reversed unanimously by the Supreme Court. Given the spread of views on the high court, if not a single Justice thinks the court of appeals was right, we know the opinion was seriously wrong. If it happens repeatedly, we know something is gravely wrong with the court of appeals as an institution.

      Last term, the Ninth Circuit racked up a stunning five unanimous reversals in state-prisoner habeas cases. In all six of its habeas cases, the Ninth got a grand total of 2 votes to affirm, for a total of 50-2 to reverse overall.

      It is time to reconsider whether federal habeas for state prisoners is doing more harm than good. As to the penalty phase of capital cases, at least, we ought to just abolish it. Reserve federal habeas for issues having some bearing on the reliability of the guilt verdict.

      • Eric M. Freedman – 1 Promoted Comment

        “Kent Scheidegger

        In some federal courts, particularly in circuits divisible by 3, reaction to AEDPA is best described as “massive resistance,” analogous to Sen. Harry F. Byrd’s massive resistance to Brown v. Board. In this case, however, federal judges are the perpetrators of the resistance rather than the enforcers of the law.”

        The claim that AEDPA is being undermined by “massive resistance” on the part of the Courts of Appeals makes a catchy soundbite but is empirically untrue. As reported in David R. Dow and Eric M. Freedman, “The Effects of AEDPA on Justice,” in The Future of America’s Death Penalty: An Agenda for the Next Generation of Capital Punishment Research (North Carolina Academic Press 2009) the authors “examined the published results on appeal of all federal habeas corpus applications filed by all death row inmates between 2000 and 2006, inclusive. The data can be summarized simply: Whereas prior to AEDPA death row inmates prevailed somewhere between half and two-thirds of the time, they now prevail, nationwide, approximately 12 percent of the time. Further, the success rate, in most jurisdictions, appears to be declining.”

        Only by simply ignoring the appalling state of capital representation at trial that Prof. Hoffmann describes could one reach the conclusion that this rate is too high, much less the result of “massive resistance.” On the contrary, a sober assessment of the situation would reach the conclusion – which should be as unsettling to proponents of capital punishment as to its opponents – that uncorrected injustices are undermining any possibility of real-world implementation of the Supreme Court’s ideal of a system that functions in a way that is even-handed, rational and deserts-based.

        Yet in all the discussion over Maples and the apparent likelihood that he would get relief, there has been very little concern over Martinez, in which the Court seems to be struggling to accept his proposition that a state is not permitted to undermine the Sixth Amendment right to effective trial representation by simply announcing that ineffective assistance claims have to be brought on state post-conviction review and then disclaiming any duty to provide an effective lawyer there to assert the claim.

        We have indeed lost our way in a barbed wire tangle of legalisms and Prof. Hoffman is right, “It’s time to accept reality, and restructure the rules of capital habeas to ensure prompt disposition of the merits of every capital case.”

  • Sam Heldman – 2 Promoted Comments

    Not meaning to under-emphasize the importance of the case to Mr. Maples himself or to other capital defendants, or to Supreme Court jurisprudence, but I want to mention another angle: I wish that every lawyer and law student had to read about this case at least once a year forever.

    That is, however the case ultimately comes out in the Supreme Court, it really gets at the nature of lawyering as distinct from thinking about law – at how very crucial it is to (1) always remember that you have a client (it seems crazy, but there is too often a tendency among a certain kind of smart lawyer to forget that there are actual people involved, and that you are their eyes and ears as well as their clever advocate), (2) keep track of things and don’t screw up the details (like filing notices of appearance or motions to withdraw), (3) not take on a project that you’re not actually willing to embrace and care about; and (4) be especially careful to remember (1) (2) and (3) in those cases that stress you out (this being perhaps the hardest of all, once the lawyer finds himself or herself starting to feel the water rising).

    There are also, probably, lessons about how to run a big firm, and how not to run a big firm – how to train lawyers, and keep track of obligations.

    This case is an awful train wreck, in terms of all of those things. But people get out of law school not knowing anything about those train wrecks, and how to avoid them. Then many firms do a bad job, or no job at all, teaching about this. Reading about this case ought to wake up every one of us.

    • Kent Scheidegger – 6 Promoted Comments

      “There are also, probably, lessons about how to run a big firm, and how not to run a big firm – how to train lawyers, and keep track of obligations.”

      That gets into an issue that has receive too little attention in the press coverage of this case: the gross recklessness of Sullivan & Cromwell management in the way it requires its lawyers to appear in these cases.

      Even though this was a firm effort in reality, with multiple lawyers working on the case, S&C required the two associates to appear in their individual names. They gave their mailing addresses as just their names and the firm’s street address, without the name of the firm.

      After they left the firm, the notices from the clerk appeared addressed to them individually because S&C had deliberately decided to have them addressed that way. The mail room screw-up was the entirely foreseeable result of that boneheaded policy.

      If further litigation of this matter is required, S&C should be required to reimburse the State of Alabama for every penny of the cost.

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