Recently we discussed the twisted jurisprudence of Associate Justice Clarence Thomas. Thomas is back in another disturbing dissent written by Antonin Scalia in the case of Maples v. Thomas. Cory Maples was convicted of two murders in Alabama in 1997. Since Alabama does not pay for post-conviction assistance, he relied on Jaasai Munanka and Clara Ingen-Housz from the law firm of Sullivan and Cromwell. When the attorneys left, however, the firm let the case drop and Maples was never informed that an appeal had been denied. His time for appeal lapsed. Seven justices lined up to support the right to an appeal, including Roberts and Alito who are not known to support criminal defendants in most cases. However, Thomas and Scalia insisted that there was no need for further judicial review in light of the failure of counsel. If leaving a case entirely is not ineffective counsel, it is difficult to see when such a standard would be satisfied in the jurisprudence of Thomas and Scalia.

The Court supplied an account of the failure of Sullivan and Cromwell in the case:

In 2002, while Maples’ state postconviction petition was pending, Munanka and Ingen-Housz left Sullivan & Cromwell. Their new employment disabled them from representing Maples. They did not inform Maples of their departure and consequent inability to serve as his counsel. In disregard of Alabama law, neither sought the trial court’s leave to withdraw. No other Sullivan & Cromwell attorney entered an appearance, moved to substitute counsel, or otherwise notified the court of a change in Maples’ representation. Thus, Munanka, Ingen-Housz, and Butler remained Maples’ listed, and only, attorneys of record.

The trial court denied Maples’ petition in May 2003. Notices of the order were posted to Munanka and Ingen-Housz at Sullivan & Cromwell’s address. When those postings were returned, unopened, the trial court clerk attempted no further mailing. Butler also re- ceived a copy of the order, but did not act on it. With no attorney of record in fact acting on Maples’ behalf, the 42-day period Maples had to file a notice of appeal ran out.

About a month later, an Alabama Assistant Attorney General sent a letter directly to Maples. The letter informed Maples of the missed deadline and notified him that he had four weeks remaining to file a federal habeas petition. Maples immediately contacted his mother, who called Sullivan & Cromwell. Three Sullivan & Cromwell attor- neys, through Butler, moved the trial court to reissue its order, thereby restarting the 42-day appeal period. The court denied the motion. The Alabama Court of Criminal Appeals then denied a writ of mandamus that would have granted Maples leave to file an out-of- time appeal, and the State Supreme Court affirmed.

Both the federal court and Eleventh Circuit upheld the denial of relief.

Notably, the majority (in an opinion by Associate Justice Ginsburg) sets out with criticism of the Alabama system noting the state’s “low eligibility requirements for lawyers appointed to represent indigent capital defendants at trial” and that “[a]ppointed counsel in death penalty cases are also undercompensated.” The court then adds “[n]early alone among the States, Alabama does not guarantee representation to indigent capital defendants in postconviction proceedings.” Alabama should be ashamed of such an inimical position in our legal system.

Alabama succeeded in largely uniting a divided court by its draconian approach to criminal justice (Alito filed a concurrence). The court held:

“The cause and prejudice requirement,” we have said, “shows due regard for States’ finality and comity interests while ensuring that ‘fundamental fairness [remains] the central concern of the writ of habeas corpus.’” Dretke v. Haley, 541 U. S. 386, 393 (2004) (quoting Strickland v. Washington, 466 U. S. 668, 697 (1984)). In the unusual circumstances of this case, principles of agency law and fundamental fairness point to the same conclusion: There was indeed cause to excuse Maples’ procedural default. Through no fault of his own, Maples lacked the assistance of any authorized attorney during the 42 days Alabama allows for noticing an appeal from a trial court’s denial of postconviction relief. As just observed, he had no reason to suspect that, in reality, he had been reduced to pro se status. Maples was disarmed by extraordinary circumstances quite beyond his control. He has shown ample cause, we hold, to excuse the procedural default into which he was trapped when counsel of record abandoned him without a word of warning.

While Scalia expressly “agree[s] with the Court’s conclusion, ante, at 15, that Maples’ two out-of-state attorneys of record, Jaasi Munanka and Clara Ingen-Housz, had abandoned Maples,” he still would leave the death-row inmate without judicial relief because he believed the Maples was still technically represented in the case.

. . . 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 con- ducted by counsel.

Scalia dismisses the confusion and lack of involvement of the attorneys who tried to retrieve Maples’ procedural rights. However, once again, procedural requirements must be tempered by some notion of basic justice and fairness. The jurisprudence of these justices appear to be impenetrable by such values. It is the triumph of procedure over justice. The record demonstrates that a gap occurred in representation and that he had been denied effective counsel for all practical purposes –or, as the majority found, “he had been reduced to pro se status.” Note: none of this means Maples will wi — only that he will be able to present his appeal to a higher court.

The question is whether the Alabama bar will use this stinging indictment of their legal system to advocate for reforms to bring the state on par with other states in the Union.

Here is the opinion: MAPLES v. THOMAS