Yesterday, the Supreme Court, in Maples v. Thomas, found that a prisoner sentenced to death did not lose his right to appeal when his attorneys from a fancy New York law firm abandoned his case. This has been called a mail-room mistake, but actually it's much worse. Here's a thumbnail of the case.
The defendant, Maples, was charged 1997 with having murdered two of his pals in a night of drinking and drug use. He pled not guilty raised a defense based on lack of capacity. He was represented by two lawyers, quite underpaid, only one of whom had any experience in a capital case. The jury found him guilty, and recommended death by the minimum vote, which in Alabama is not unanimous, but rather only 10 votes of the 12 jurors. Maples appealed to the Alabama Court of Appeals and the Alabama Supreme Court, which both rejected his appeals.
Maples then sought "postconviction relief" in the state trial court which is a means of attacking the competence of his trial lawyers. It was necessary for Maples to bring this action in state court, and prosecute it up (again) to the Alabama Supreme Court before he could present a challenge to his conviction in federal court. Maples alleged in his post conviction proceeding:
... underfunded attorneys failed to develop and raise an obvious intoxication defense, did not object to several egregious instances of prosecutorial misconduct, and woefully underprepared for the penalty phase of his trial.
It was this post-conviction relief at the state trial court level where the problem occurred. From the opinion of the U.S. Supreme Court (.PDF):
Cory R. Maples is an Alabama capital prisoner sentenced to death in 1997 for the murder of two individuals. At trial, he was represented by two appointed lawyers, minimally paid and with scant experience in capital cases. Maples sought postconviction relief in state court, allegingineffective assistance of counsel and several other trial infirmities. His petition, filed in August 2001, was writtenby two New York attorneys serving pro bono, both associated with the same New York-based large law firm. An Alabama attorney, designated as local counsel, moved the admission of the out-of-state counsel pro hac vice. As understood by New York counsel, local counsel would facilitate their appearance, but would undertake no substantive involvement in the case.
Maples’ postconviction petition remained pending in the Alabama trial court, his New York attorneys left the law firm; their new employment disabled them from continuing to represent Maples. They did not inform Maples of their departure and consequent inability to serve as his counsel. Nor did they seek the Alabama trial court’s leave to withdraw. Neither they nor anyone else moved for the substitution of counsel able to handle Maples’ case.
In May 2003, the Alabama trial court denied Maples’ petition. Notices of the court’s order were posted to the New York attorneys at the address of the law firm with which they had been associated. Those postings were returned, unopened, to the trial court clerk, who attempted no further mailing. With no attorney of record in factacting on Maples’ behalf, the time to appeal ran out.
Thereafter, Maples petitioned for a writ of habeas corpus in federal court. The District Court and, in turn, the Eleventh Circuit, rejected his petition, pointing to the procedural default in state court, i.e., Maples’ failure timely to appeal the Alabama trial court’s order denyinghim postconviction relief. Maples, it is uncontested, was blameless for the default.
Below the Squiggle of Doom I offer additional details and some ideas on what really happened.
In short, the defendant's Alabama lawyer abdicated all responsibility for the case to the two New York lawyers, who were working for the firm of Sullivan and Cromwell, one of the most prestigious in the country. The lawyers doing the work were of the rank of "associates", basically junior attorneys who have no permanent stake in the firm.
Most of these firms have a policy of "up or out" which means that in seven years or so after being hired, associates who are hired are either invited to join the firm as a partner, or they are fired. Very few actually make partner, and most, realizing they aren't going to make the cut, move on to other jobs well before the traditional seven-year deadline arrives. The legal professional has a phrase for this: "associates are fungible; partners are not". But don't feel sorry for the poor associates, they're already starting on third base in the legal profession, and their degrees, from Harvard, Yale, etc. get them at the top rank of any legal job opening in the country.
And Sullivan & Cromwell is no ordinary law firm. From their Wikipedia article:
Sullivan & Cromwell LLP is an international law firm headquartered in New York. The firm has approximately 800 lawyers in 12 offices, located in financial centers in the United States, Asia, Australia and Europe. Sullivan & Cromwell was founded by Algernon Sydney Sullivan and William Nelson Cromwell in 1879. The firm consistently ranks as one of the most prestigious law firms in the world. As of 2010, it was the 18th largest law firm in the world, by revenue.
Pro bono vs. anti-bono
Now, these firms also have a pro bono policy, that is, because the firm spends a huge amount of time earning treasure by protecting the rights of various wealthy individuals and powerful companies, and helping them acquire even more wealth and power, this creates a certain entirely accurate impression that the law firm are a bunch of mercenary assholes.
Hence the pro bono policy, which to be fair, places the entire resources of the firm available for a certain category of cases which the firm believes (a) deserve legal help and (b) will counter the public image of the firm as a school of money-grubbing lampreys. The pro bono program is also used to lure the more idealistic among the new hires of the firm, who may well not be looking forward to immediately undertaking a life-time of drudgery (albeit well compensated) for the 1% or more likely, the 1% of the 1%.
The law firm's screw up.
Now, in this case, Sullivan and Cromwell had two associates working on the case. However, they did not understand one basic principle of litigation, which was it was the lawyers job to keep up on the status of the case, and to keep the court informed of any changes in the lawyer's address. Worse yet, the firm did not assign a non-fungible person, a partner, to supervise the work of the associates, which of course would have been standard if this had been an ordinary paying case. So, when the critical document arrived, the firm's mailroom didn't have any idea who to give the document to. The law firm chose to portray this as a mail room error, but in fact it was a board room error.
Let me make this perfectly clear: Sullivan and Cromwell fucked this case up. Big time. That is because the death penalty case, which should have been treated as the firm's highest priority, instead received no more attention than an unpaid magazine subscription (to GQ, no doubt) for the firm's lobby.
The legal issue
Generally most clients are stuck with their lawyer's mistakes. If the lawyer screws up, there's a malpractice action which supposedly can make the client whole. This is true even in death penalty cases, but here there is a narrow exception where the lawyer has abandoned the client, and in effect, ceased to act in the role of a responsible attorney. Ordinary miscalculation of deadlines and so forth won't do the trick, there must be something close to desertion of the client by the lawyer.
Here's what the Supreme Court, in a 7-2 vote said about the lawyers, both the one in Alabama and the fancy outfit in New York:
Maples maintains that there is, for the lawyers he believed to be vigilantly representing him had abandoned the case without leave of court, without informing Maples they could no longerrepresent him, and without securing any recorded substitution of counsel. We agree. Abandoned by counsel, Maples was left unrepresented at a critical time for his state postconviction petition, and he lacked a clue of any need to protect himself ...
I can think of no more damning condemnation of any attorney or law firm that this should be said of them in a death penalty case.
The irresponsibility of Sullivan & Cromwell
Sullivan & Cromwell only learned of the default when Maples called his mother, and the mother called the law firm. By then the two associates were long gone to prestigious jobs, one for a federal judge, and one for the European Union in Brussels. Both these positions disqualified them from doing any work for Maples or indeed any private legal work of any kind.
The departing associates failed to undertake even the most basic of their obligations both to Maples and to the court in Alabama because they informed no one in Alabama of this change, and they did not seek written authorization from the court to substitute counsel.
This screw up would have been immediately obvious at Sullivan & Cromwell, and it must have set off a reaction somewhat like the day after Pearl Harbor. The proper thing for Sullivan & Cromwell to have done would have been to immediately recognize that as a conflict of interest existed between them and Maples, because their screw up had essentially resulted in his loss of all ability to challenge his conviction and death sentence. Maples best chance to challenge the running of the appeal deadline in the state court would be to place the blame where it belonged, which was on Sullivan & Cromwell.
Under these circumstances, Sullivan & Cromwell should also have undertaken to hire, at their own expense, new and independent counsel, who could prepare a proper challenge to the loss by Maples of his appeal rights. They should also have made a full disclosure and acceptance of responsibility to the trial court in Alabama.
But Sullivan & Cromwell did no such thing. In the words of the Supreme Court:
... a significant conflict of interest arose for thefirm once the crucial deadline passed. ... Following the default, the firm’s interest in avoiding damage to its own reputation was at odds with Maples’ strongest argument—i.e., that his attorneys had abandoned him,therefore he had cause to be relieved from the default. Yet Sullivan & Cromwell did not cede Maples’ representation to a new attorney, who could have made Maples’ abandonment argument plain to the Court of Appeals.
Instead, the firm represented Maples through briefing andoral argument in the Eleventh Circuit, where they attempted to cast responsibility for the mishap on the clerk of the Alabama trial court.
Given Sullivan & Cromwell’s conflict of interest, Maples’ federal habeas petition, prepared and submitted by the firm, is not persuasive evidence that Maples, prior to the default, ever “viewed himself” as represented by “the firm,” see post, at 4, rather than by his attorneys of record [the two associates].
Another blogger here says this "does not place S&C in the best light." Indeed. When the Supreme Court finds that a law firm like Sullivan & Cromwell has engaged in a conflict of interest in a freakin' death penalty case, ye shit shall hit yon fan. My guess is that someone, or more than one someone, may well have to answer to the Bar Association for this, and properly so.
Alito turned in a concurrence in which he claimed that it was only the "perfect storm" (his words) of events that led to the loss of Maples challenge in the state courts. In particular Alito disputed that the state of Alabama's hideous underfunding of death penalty cases, and permitting of unqualified counsel to conduct the defense, was NOT ultimately to blame for all this. In fact, it was -- Alito was being willfully ignorant.
As you might guess, Scalia and Thomas, two of the most miserable excuses for judges ever known, dissented, and would have offed the guy themselves, if they could have. Their idea was that after the big mess up, Sullivan and Cromwell provided adequate representation to Maples, ignoring the slight problem of the law firm's trying to shift the blame to others rather than accepting it, as the best interests of the client demanded. I wonder what kind of lawyers Scalia and Thomas must have been, if this is their idea of ethical conduct.
The real problem
The real problem is Alabama's death penalty defense system. Here's what the Supreme court has to say about it:
Alabama sets low eligibility requirements for lawyers appointed to represent indigent capital defendants at trial. Appointed counsel need only be a member of theAlabama bar and have “five years’ prior experience in theactive practice of criminal law.” Experience with capital cases is not required. Nor does the State provide, or requireappointed counsel to gain, any capital-case-specific professional education or training.
Appointed counsel in death penalty cases are also undercompensated. Until 1999, the State paid appointed capital defense attorneys just “$40.00 per hour for time expended in courtand $20.00 per hour for time reasonably expended out of court in the preparation of [the defendant’s] case.” Although death penalty litigation is plainly time intensive, [Federal capital cases from 1990 to 1997 took an average of 1480 hours of out-of-court lawyer time, about a year of work for a lawyer], the State capped at $1,000 fees recoverable by capital defense attorneys for out-of court work. Even today, court-appointed attorneys receive only $70 per hour.
Another point raised in the opinion was that on the post-conviction relief phase, Alabama does not regularly provide court appointed counsel, but relies, particularly in death penalty cases, on the willingness of out-of-state law firms to undertake representation of these clients pro bono. In short, rather than pay for a cadre of local lawyers to act as strong advocates for death penalty defendants in post-conviction cases, Alabama off-loads the problem onto charity and depends as a practical matter, on out of state lawyers to do the work that should be done in state. Under these circumstances, screw ups like the Maples case are bound to happen, no matter what Alito says or thinks.
Utter lack of experience by the Sullivan and Cromwell associates.
On another lawyer blog (link the following points are made:
[Associate 1] and [Associate 2] began representing Cory Maples in September 2000. [Associate 1] was trained as a lawyer in France and she received an L.LM from Harvard in 1999. [Associate 2] graduated from the University of Michigan Law School, also in 1999. Neither of the two did a clerkship before starting at S&C. In other words, Maples’s life was in the hands of two lawyers, one educated in France, both just entering their second year as S&C associates in New York City. And those two sophomore lawyers were responsible for navigating the complexities of Alabama law and the minefield of federal law governing habeas review of state court judgments.
There is no question that a firm like S&C can handle the complexities and risks of death penalty litigation. But leaving the task to two beginners, if that’s what big firms are doing, is surely a bigger sin than any a mail room employee might commit
Let me make it plain: These two associates (one of whom was educated in France!? note: France has a completely different legal system, and NO death penalty) had no goddamn business mucking around with a death penalty case in Alabama.
The greatest professional offense here was probably Sullivan & Cromwell's contemptuous disregard of the clear conflict of interest posed by their continuing to represent the defendant, when their own self-interest required them to blame others for what had happened, when the client's own interest, in a death penalty case, required that they accept full responsibility. Had they done so, the lower courts might will have reinstated the appeal, as even the 11th circuit was only a 2 to 1 decision.
A secondary professional error by Sullivan & Cromwell was putting two junior attorneys with apparently no real background in criminal law, on to a criminal case in a distant state, where the attorneys had no apparent prior connection or ongoing experience in the courtroom. And there was apparently no provision made at all for continuing the representation once the associates moved on from the firm. They didn't even have regular status checks on the case, such as pulling the file every 30 days (required in all litigation cases!) and checking on the case status. Clearly the firm had no interest in the matter until it turned into a disaster.
All this looks like an amateurish game played for appearance, when the life of a man was at stake. But don't take my word for it. Here's some sample comments from lawyers at abovethelaw.com:
We all screw up from time to time but the level of professional misconduct displayed by these colleagues is shocking. As if defending a death row inmate was some kind of game. I also do not understand why a court notice addressed to an attorney who has left the firm was not opened and just returned to sender. That practice asks for a disaster to happen.
* * *
These attorneys' careers would be in the shitter if they so negligently lost a F500 client a few million dollars. They nearly kill this guy and what will the repercussions be? Because, you know, pro bono doesn't really count, let's just let these junior associates cut their teeth on this guy's fucking death penalty appeal.
One wonders if the prestige of a major law firm was considered more important than the preservation of the life of a client. Actually, I don't wonder. I know.