Hello and welcome to this JACPA Ethics Alert blog which will discuss the recent U.S. Supreme Court opinion which held that an Alabama inmate on death row could appeal his conviction even though his lawyers missed the filing deadline because of the departure of his pro bono lawyers from the Sullivan & Cromwell New York law firm. The case is Maples v. Thomas, Commissioner, Alabama Department of Corrections, — S.Ct. —-, 2012 WL 125438, U.S., January 18, 2012 (NO. 10-63).
According to the 7-2 majority opinion, authored by Justice Ruth Bader Ginsburg, Maples was tried and convicted in Alabama state court in 1997 and received the death penalty. After his conviction, Maples was represented pro bono by two associates with Sullivan & Cromwell in New York (along with local counsel who said from the beginning that he would not become involved in any substantive work on the case).
The attorney’s fees for appointed Alabama trial court lawyers in those cases were capped at $1,000.00 for out of court time to investigate and prepare the defense, and $40.00 per hour for representation in court and his lawyers had never previously tried the penalty phase of any capital case. The Sullivan & Cromwell associates filed a petition for post conviction relief alleging that Maple’s “inexperienced and 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.”
The associates then left the law firm and apparently did not notify Maples or the court or move to withdraw from the representation. An Alabama Court of Appeals denied post conviction relief. The order denying relief was addressed to the lawyers at Sullivan & Cromwell; however, it was returned since they were no longer at the law firm. As a result, the deadline to appeal the order passed without the notice being filed.
The Alabama state courts subsequently denied post conviction relief and the case eventually went to the U.S. Supreme Court. The opinion found that there was cause to excuse the procedural default and that Maple should be permitted to pursue his post conviction relief. Further, “(a)bandoned by counsel, Maples was left unrepresented at a critical time for his state post conviction 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.” The also opinion noted a report by the ABA which states that Alabama underpays appointed capital counsel and sets low eligibility requirements, requiring only five years of experience in criminal cases. In addition, “(n)early alone among the states, Alabama does not guarantee representation to indigent capital defendants in post conviction proceedings.”
Justice Alito filed a concurring opinion and noted the “unique circumstances” of the case; however, he stated that he not believe that Alabama’s capital punishment system resulted in Maples’ situation. “What occurred here was not a predictable consequence of the Alabama system but a veritable perfect storm of misfortune, a most unlikely combination of events that, without notice, effectively deprived petitioner of legal representation.” Justice Scalia filed a dissent joined by Justice Thomas which stated that the federal courts should not review state criminal proceedings and that federal habeas proceedings should not be used for that purpose.
Bottom line: This is an interesting case of a missed the failure of (former) associates of a very large law firm to advise the court or their pro bono death row client that they were leaving the firm with the appeal being reinstated by the U.S. Supreme Court for a defendant on death row. The question may be whether any of the lawyers involved at the trial and appeal levels committed any ethical rule violations and, if so, whether they should be prosecuted. An additional underlying issue in this opinion is underfunded and understaffed public and appointed defense lawyers.
…be careful out there!
|As always, if you have any questions about this Ethics Alert or need assistance, analysis, and guidance regarding these or any other ethics, risk management, or other issues, please do not hesitate to contact me.|
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