Justice According To Scalia and Thomas: Two Justices Dissent From Giving Death Row Inmate Appeals After He Was Abandoned By Counsel

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

52 thoughts on “Justice According To Scalia and Thomas: Two Justices Dissent From Giving Death Row Inmate Appeals After He Was Abandoned By Counsel”

  1. I wish I had the same hope that good people and the internet will save us.
    But I don’t …….
    It they can’t trace you using traffic data, then there’s always segmentation, at microsecond rapidity to isoláte and point out ever smaller “nets” until they’re outside your door.

    For a nightmare view, where it’s the machine that takes you on, read:
    “Press Enter” by John Varley. Now NSA has implemented it.

    The army in Egypt is rapidly getting such a system. The Saudis have had the basic system since the 1980’s.

  2. Ever wonder why Eric Holder is not prosecuting the banks? He used to work for them and will work for them again one day: From Reuters

    “The never-ending, cross-party revolving door in Washington has to stop. They’re fleecing America, and care more about themselves than they do the country. Reuters:
    U.S. Attorney General Eric Holder and Lanny Breuer, head of the Justice Department’s criminal division, were partners for years at a Washington law firm that represented a Who’s Who of big banks and other companies at the center of alleged foreclosure fraud, a Reuters inquiry shows. The firm, Covington & Burling, is one of Washington’s biggest white shoe law firms. Law professors and other federal ethics experts said that federal conflict of interest rules required Holder and Breuer to recuse themselves from any Justice Department decisions relating to law firm clients they personally had done work for. Both the Justice Department and Covington declined to say if either official had personally worked on matters for the big mortgage industry clients. Justice Department spokeswoman Tracy Schmaler said Holder and Breuer had complied fully with conflict of interest regulations, but she declined to say if they had recused themselves from any matters related to the former clients.
    a few seconds ago · ”

    We are sick of this, this has to end, Eric Holder should be fired and someone else with no connection to the banks should replace him.

  3. Anon nurse, If I recall the Pres was taken to task by the repubs for having the nerve to suggest the ‘e-word’ when considering someone for supreme court.

  4. Scalia, beaa, bo beyeah, bannanay bofeyeah, Sclaclie,
    The first two letters are ever the same you drop them both and say the name…

  5. mahtso, thanks for the post regarding 6a, and the post conviction angle.
    But my attitude is that the 6A does not look inside the procedures of the Justice System, but to the fact that you are entangled in it. I read it as saying you have a right to have some help on your side.
    These amendments were written by guys who had seen first hand British rule, who had been involved in the revolution, who were aware of the mechanisms that domineering, self-important, self-serving functionaries surrounded themselves with as a matter of course.

  6. Scalia should have his say, when it comes to the Controntation Clause. This is where the Framers of the first ten amendments get their due. Why does he fall off the face of the Constitution when we get to the Fourteenth Amendment? No Framers then and there? No Original Intent?
    He is “unreconstructed”. Please read up on that topic. Dogs dont appreciate the unreconstructed folks.

  7. Good people… coupled with the internet… The combination might just be our saving grace…

  8. The government takes down #Megaupload? 15 minutes later #Anonymous takes down government & record label sites. #ExpectUs

    The Justice Department too. Game on I suppose, yikes.

  9. anon nurse,
    Scalia and Thomas don’t understand the e-word! it is not in their originalist, corporatist vocabulary.

  10. The “e-word” comes to mind. I view “empathy” as essential to doing any job well…


    From the article:

    “You may recall that, before he (Obama) nominated Sonia Sotomayor, the president called empathy “an essential ingredient for arriving at just decisions and outcomes” and thus an indispensable tool for US Supreme Court justices. When it came to filling vacancies on the court, he said, a superior legal mind was necessary but not sufficient. He would choose nominees capable of “understanding and identifying with people’s hopes and struggles,” nominees, that is, with a special gift for empathy.”

  11. If Chris Hedges waited until he suffered “damage” nobody would know about it. He would have no contact and thus no way to instigate a suit.
    Which jurisdiction would cover him? He would be reported dead from natural causes (usually heart attack).

    The whole mess is a reanactment of the Great Purge in 1930’s USSR,
    For those looking for a chilling report, go to your library and loan
    “Hope against hope” by Nadezda Mandelstam, wife of Osip M., who waa murdered after writing a derogatory poem about Stalin. **

    The arbitrariness has reached that state now, and the surveillance tactics are about the same: neighbor watching and forced to witness against neighbor, and investigative terror tactics and interrogation tactics the same. Deja vu.

    Stalin Epigram by Osip Mandelstam source Wikipedia
    We are living, but can’t feel the land where we stay,
    More than ten steps away you can’t hear what we say.
    But if people would talk on occasion,
    They should mention the Kremlin Caucasian.

    His thick fingers are bulky and fat like live-baits,
    And his accurate words are as heavy as weights.
    Cucaracha’s moustaches are screaming,
    And his boot-tops are shining and gleaming.

    But around him a crowd of thin-necked henchmen,
    And he plays with the services of these half-men.
    Some are whistling, some meowing, some sniffing,
    He’s alone booming, poking and whiffing.

    He is forging his rules and decrees like horseshoes –
    Into groins, into foreheads, in eyes, and eyebrows.
    Every killing for him is delight,
    And Ossetian torso is wide.
    Russian: Мы живем, под собою не чуя стран

  12. Voltaire (?) said:
    Law in its justice provides that neither the rich nor the poor may sleep under bridges.
    So much for equality. Equality has meaning only when coupled to equality of opportunity. Some cultures are egalitarian, ours is not.

  13. alabama had to dragged, kicking and screaming into the twentieth century fifty years behind everyone else. no action will be taken without a court order.

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