”Lasciate ogne speranza, voi ch’intrate” (“Abandon all hope, ye who enter here”) Dante Alighieri’s The Divine Comedy: Inferno, Canto III, The Gate of Hell
I share only two things in common with Justice Antonin “Nino” Scalia: a first name and a nickname. Everything else about Justice Scalia is anathema to my understanding of the legal system, professional ethics or the human condition.
Anyone who has read Justice Scalia’s dissent (with whom Justice Clarence Thomas predictably concurs) in the recently released U.S. Supreme Court decision in Maples v. Thomas, Commissioner, Alabama Department of Corrections 565 U. S. ____ (2012), will hopefully share my utter sense of bewilderment and melancholy. Unless, of course, you are inclined to believe that no sense of procedural justice exists and that rules of procedure—criminal, civil or administrative—are mere window-dressing like your grandmother’s saggy drapes.
Briefly, in Maples v. Thomas, the petitioner, Cory R. Maples was found guilty of murder and sentenced to death in an Alabama state court. In 2001, Maples sought post-conviction habeas relief in state court under Alabama Rule 32. Maples alleged, inter alia, that his underpaid (or what an opposing counsel once referred to a colleague of mine as “less expensive counsel”) and inexperienced trial attorneys failed to provide him with effective assistance guaranteed by the Sixth Amendment. His petition was drafted by two pro bono attorneys, Jaasai Munanka and Clara Ingen-Housz, both associates with the New York offices of the BigLaw firm, Sullivan & Cromwell. As required under Alabama law, both attorneys engaged an Alabama lawyer, John Butler, to move for their admission pro hac vice. Butler stated unequivocally that he would undertake no substantive involvement in the case. In 2002, while Maples’ state post-conviction petition was pending, Munanka and Ingen-Housz left Sullivan & Cromwell and their new employment conflicted them out of representing Maples.
The problem? They forgot to advise Maples of their departure and consequent inability to act as his counsel. To make matters worse for their erstwhile client facing lethal injection, they also failed to seek the trial court’s leave to withdraw under Alabama law. See no evil. Hear no evil. Speak no evil.
While the road to Mr. Maples’ personal hell was being paved with his former lawyers’ good intentions, no one at Sullivan & Cromwell bothered to pick up the handbasket by entering an appearance, moving to substitute counsel, or otherwise notifying the Alabama court of a change in Maples’ representation. Both the former Sullivan & Cromwell associates and Butler remained Maples’ listed and exclusive attorneys of record.
The trial court denied Maples’ petition in May 2003. Notices of the order were mailed to Munanka and Ingen-Housz at Sullivan & Cromwell’s address, but after they were returned unopened, the trial court clerk didn’t try to locate them, which is understandable. After all, it’s just way too time-consuming to contact the New York State Bar Association or Sullivan & Cromwell’s office to confirm a forwarding address. When Butler received a copy of the order, he did nothing, since he thought his lawyers were handling it.
About a month later, an Alabama Assistant Attorney General sent a letter directly to Maples informing him of the missed deadline and notifying him that he had four weeks remaining to file afederal habeas petition. Maples immediately contacted his mother,who called Sullivan & Cromwell. I can only imagine the sense of sheer panic in a mother’s voice in that phone call. Three Sullivan & Cromwell attorneys, via Butler, then moved the trial court to reissue its order, in order to recommence the 42-day appeal period. Unsurprisingly, the court denied the motion. The Alabama Court of Criminal Appeals then denied a writ of mandamus which would have granted Maples leave to file an out-of-time appeal, the State Supreme Court affirmed.
Thereafter, Maples sought federal habeas relief. which both the District Court and the Eleventh Circuit denied on the ground that the procedural default arose in state court; namely, Maples’ failure timely to appeal the state trial court’s order denying his Rule 32 petition for post-conviction relief.
You see, rules developed for the purpose of orderly litigation. But orderly litigation exists to assure that the result is as trustworthy as possible. We have rules of evidence to assure that defendants aren’t convicted upon unreliable evidence. We have rules of procedure to assure that both sides get to question witnesses, and both sides can adequately prepare without surprise or confusion. We have rules of notice and service so that no one gets sandbagged. And we have rules, grounded in a constitutional mandate, that defendants have competent counsel, because he would be unable to challenge the prosecution without it.
And Cory Maples was denied competent counsel. Instead, he got Sullivan & Cromwell, and august and noble firm, even if there was no one there who would accept the papers in his case.
When the rules become more important than the reason why we have rules at all, the prissy rationale of grocery clerks suffice. As long as each box on a checklist is marked, the job has been done to official satisfaction. Precedent, wiggly enough when it wants to be, suddenly becomes clearer, brighter and blacker, so much so that crossing that forbidden line makes it seem as if the empire will crumble.
IANACDL, so I can only express my dismay from the outside looking into the abyss.
The first thing that strikes me about Scalia’s jurisprudence (by which I mean “philosophy of law”) is that his form of legal positivism and constitutional originalism is factitious: it barricades itself behind a wall of injudicious and unremitting order at the expense of fairness. As one Supreme Court of Canada justice once remarked: order is a precondition of justice”, but there is only disorder and injustice in Scalia’s legal philosophy that becomes more and more isolated and reactionary as the facade of his Catholic extremism borders on the pathological.
The problem for Justice Scalia appears to be that he really believes that criminal defense attorneys are the Enemy of the State:, manipulating and gaming the criminal justice system by relying on technicalities and shystering tricks of the trade to delay the moral righteousness of meting out a death sentence. I say moral even when when Scalia’s decision-making results in an amoral, indifferent or apathetic result. Any procedural unfairness or constitutional breach is an annoyance. Any errors, mistakes or inadvertence of defense counsel is foisted on the accused or convict. However, when a prosecutor breaches the rules of procedure or rules of ethics, it is of no moment. It’s all about finality, costs and avoiding the floodgates of frivolous appeals.
If your attorney abandons you, then” too bad, so sad”, so sayeth Justice Scalia:
When an attorney’s error occurs at a stage of the proceedings at which the defendant has a constitutional right to effective assistance of counsel, that error may constitutecause to excuse a resulting procedural default. A State’s failure in its duty to provide an effective attorney, as measured by the standard set forth in Strickland v. Washington, 466 U. S. 668 (1984), makes the attorney’s error chargeable to the State, and hence external to the defense.See Murray, supra, at 488. But when the client has no right to counsel—as is the case in the postconviction setting, see Pennsylvania v. Finley, 481 U. S. 551, 555 (1987)—the client bears the risk of all attorney errorsmade in the course of the representation, regardless of the egregiousness of the mistake. Coleman, supra, at 754 (“[I]t is not the gravity of the attorney’s error that matters,but that it constitutes a violation of petitioner’s right tocounsel, so that the error must be seen as an external factor”). [emphasis added]
The learned justice continues,
It would create a huge gap in our Coleman jurisprudence to disregard all attorney errors committed before admission to the relevant court; and an even greater gapto disregard (as the Court suggests) all errors committedbefore the attorney enters an appearance. Moreover, even if these attorneys cannot be regarded as Maples’ agents for purposes of conducting the Alabama litigation, they were at least his agents for purposes of advising him of theimpending deadline. His unawareness was the fault of counsel who were his agents, and must be charged to him. What happened here is simply “[a]ttorney ignorance or inadvertence” of the sort that does not furnish cause to excuse a procedural default. Coleman, 501 U. S., at 753.
Apparently, to Justice Scalia, lack of notice is not a fundamental aspect of procedural justice:
I think it doubtful whether due process entitles a litigant to any notice of a court’s order in a pending case. The Federal Rules certainly reject the notion that notice is an absolute requirement. Federal Rule of Civil Procedure 77(d)(2) provides that “[l]ack of notice of the entry [of an order or judgment]does not affect the time for appeal or relieve—or authorize the court to relieve—a party for failing to appeal within the time allowed, except as allowed by Federal Rule ofAppellate Procedure (4)(a).” And although Federal Rule of Appellate Rule 4(a)(6) in turn provides that the time forfiling an appeal can be reopened when a litigant did not receive notice, it establishes 180 days after the judgment or order is entered as the outer limit by which a motion toreopen must be filed. See Fed. Rule App. Proc. 4(a)(6)(B).
There is no need to grapple with this question, however,because Butler received a copy of the trial court’s order.“Under our system of representative litigation, ‘each party . . . is considered to have notice of all facts, notice of which can be charged upon [his] attorney.’” Irwin v. Department of Veterans Affairs, 498 U. S. 89, 92 (1990) (quoting Link v. Wabash R. Co., 370 U. S. 626, 634 (1962)). The notice to Butler was therefore constitutionally sufficient.
[The District Court's] theory of deliberate indifference would repeal the law of Monell in favor of the Law of Large Numbers. Brady mistakes are inevitable. So are all species of error routinely confronted by prosecutors: authorizing a bad warrant; losing a Batson2 claim; crossing the line in clos-ing argument; or eliciting hearsay that violates the Con-frontation Clause. Nevertheless, we do not have “de facto respondeat superior liability,” Canton, 489 U. S., at 392, for each such violation under the rubric of failure-to-train simply because the municipality does not have a profes-sional educational program covering the specific violation in sufficient depth.3 Were Thompson’s theory the law, there would have been no need for Canton’s footnote to confine its hypothetical to the extreme circumstance ofarming police officers with guns without telling them about the constitutional limitations upon shooting fleeing felons; the District Court’s instructions cover every recurring situation in which citizens’ rights can be violated.
This form of judicial gloss leads Scalia to a logical purgatoria: a client is responsible for his or her lawyer’s negligence or failure to follow procedure, while a municipality is not responsible for a prosecutor’s negligence or failure to follow procedure. The Constitution, in Scalia’s view remains fire-resistant, but it matters not whether it is also fire-proof.
This is a curious point, since the effect of Maples’ statement was to implicate Sullivan & Cromwell as a firm in missing the filing deadline. The conflict would have induced the Sullivan & Cromwell lawyers to exonerate the firm. To be sure, as the case later developed (at this stage abandonment had not yet been conceived as the litigating strategy), it would have been in Maples’ interest to say he had no lawyers. But the issue the petition’s statement raises is not whether Maples was cleverly represented; it is whether the statement was true. And if Sullivan & Cromwell’s involvement in preparing the petition has any bearing upon that, it only reinforces the truth. [emphasis added]
Of course, it was all about litigating strategy all along. Those pesky defense lawyers trying to pull a fast one on the unsuspecting court and prosecutors.
...if the interest of fairness justifies our excusing Maples’ procedural default here, it does so whenever a defendant’s procedural default is caused by his attorney.That is simply not the law—and cannot be, if the states are to have an orderly system of criminal litigation conducted by counsel. Our precedents allow a State to stand on its rights and enforce a habeas petitioner’s procedural default even when counsel is to blame. Because a faithful application of those precedents leads to the conclusion that Maples has not demonstrated cause to excuse his procedural default; and because the reasoning by which the Court justifies the opposite conclusion invites future evisceration of the principle that defendants are responsible for the mistakes of their attorneys; I respectfully dissent. [emphasis added]
There were 9 Circles of Hell in Dante’s Inferno: Limbo, Lust, Gluttony, Greed, Anger, Heresy, Violence, Fraud and Treachery. Mr. Maples has gone through most of these circles already and he faces an uphill battle, but these words from Dante’s Purgatoria, canto viii, 53-4 provide no solace:
giudice Nin gentil, quanto mi piacque
quando ti vidi non esser tra’ rei
Noble Judge Nino, what joy I had
when I saw you were not down with the wicked!