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January 18, 2012

SCOTUS gives break to death row petitioners whose lawyers missed deadline

The Supreme Court this morning handed down an opinion today in the high-profile (and low-impact?) capital case of Maples v. Thomas.  Here is the early report on the ruling via SCOTUSblog:

The Court ... holds that Maples has shown cause to excuse his procedural default. It is an RBG opinion. It is 7-2, with Justice Alito filing a separate opinion in addition to joining the majority.  Scalia and Thomas dissent....

Justice Alito explains that he is joining the Court's decision because there were at least 8 facts that combined to deprive Maples of counsel....

It seemed likely after oral argument that Maples would win in some fashion, so this is not a big surprise.

The full opinion is available here, and I may comments on its particulars if/when I see anything that seems of enduring jurisprudential importance.   Readers should, of course, feel free to beat me to the punch via the comments.

January 18, 2012 at 10:12 AM | Permalink

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This is a disgusting decision. First off, the Court basically ignored pled facts in holding for a capital murderer. The spectacle of that, for any fair-minded person, has to be a problem. Capital murderers (at least where there is zero question of guilt) should get very few breaks from federal courts in the prosecution of their habeas cases. Here, Maples was allowed to sandbag the sovereign state of Alabama and the lower courts. Only in the bizarro-world of death penalty "jurisprudence" is this possible. Second, given the "perfect storm" of facts, how is this case remotely worthy of cert. compared to a case like Kindler, where a federal court trampled on a state court's right to the integrity of its appeals process by not giving effect to the use of the fugitive disentitlement doctrine? Third, the case is intellectually dishonest. The Court continues its "say one thing; do another" nonsense with capital punishment. It would be much easier on everyone if the Court basically said, yeah, we've said all these things, but the reality is that we will bend over backwards for capital murderers. It started with the Baze stays, which were ridiculous and violative of the Court's own pronouncements. (So much for the rule of law.)

The federal courts need to be out of the business of reviewing state death sentences. This case is but one more piece of evidence of that.

Posted by: federalist | Jan 18, 2012 10:32:12 AM

Alito notes the unique "perfect storm" of events here but the implication that he only signed on because "eight" (as compared to seven?) things occurred is a bit silly.

His join does suggest that calling this "disgusting" is likely a tad bit much. Surely in death penalty cases, safeguards that prevent so formalistic rules that outliers like this aren't treated like the run of the mill default are far from disgusting, if anything, it strengthens the case of the capital punishment. This is probably what those who think it is perfectly constitutional like Roberts and Alito et. al. believe. It really doesn't do your side much good to use hyperbole like "disgusting" in cases of this type. It really waters down the brand.

Posted by: Joe | Jan 18, 2012 10:45:31 AM

Agree with you on Alito.

As for "disgusting", I'm gonna stand by it. If the Court had said look, we're simply not going to tolerate this because this is capital punishment, then I could accept that. But that's not what's going on here. The Court treats an inter-law firm botched handoff and a division of labor among the legal team as somehow attributable to the state. Intellectually, this is ridiculous. And the switcheroo on the pled facts is astounding, especially when done for a capital murderer, a litigant which should be the least worthy of succor, particularly federal court succor (given that this is a state death case). And to top all of that, juxtapose the cert. grant here with the denial in Kindler.

Disgusting is probably too weak a term.

Posted by: federalist | Jan 18, 2012 10:51:33 AM

Fed,

Wasn't cert granted and the case reversed in Beard v. Kindler? Are you talking about what happened on remand? Do you have a cite? I wasn't aware of any follow-up in that case.

Posted by: reader | Jan 18, 2012 11:10:53 AM

The ruling doesn't blame everything on the state. What is going on here:

"The sole question this Court has taken up for review is whether, on the extraordinary facts of Maples’ case, there is “cause” to excuse the default."

When dealing with a death row inmate, the state has some responsibilities, but the Court is not merely stating they are all to blame.

The case reaffirms a basic point as to safeguards that will arise in various instances, there repeatedly some outlier set of facts like these. Using this to criticize their actions on some other case is curious. Addressing this specific case, it is not "disgusting." I stick by my comment -- even not agreeing with your general sentiments, I think the term really should be not used so loosely.

Posted by: Joe | Jan 18, 2012 11:28:42 AM

Just finished reading the decision and, apart from dicta in which the opinion fairly thrashes Alabama's old appointed counsel system, it seemed to me that there was little or no criticism of the state. The opinion simply says that all three attorneys abandoned their client with no notice to him or the court. In that bizarre cirmcumstance, agency law prevents the normal attribution of the lawyer's mistakesto the client.

Posted by: Ala JD | Jan 18, 2012 11:49:23 AM

Reading a federalist comment is like clicking on an article on how to reform taxes only to find the first argument being made is that the income tax is unconstitutional. He/she utterly loses all credibility with such hyperbolic, extreme argumentation and evaluation. And that's exactly what happed in his/her comment here.

On another note, Joe is correct. There is little to nothing that the Court says is "attributable to the state" -- certainly not to the extent federalist tries to portray it. This case, explains the Court, is a situation where "an attorney abandons his client without notice," and therefore procedural default is excused.

Nothing at all "disgusting" here. (And, to not leave you in suspense, the income tax is also constitutional.)

Posted by: DEJ | Jan 18, 2012 11:50:28 AM

No criticism intended, but I think the title of this post may be (intentionally?) sensational. The Court specifically states that this is not just a case of "a petitioner's postconviction attorney miss[ing] a filing deadline." (Slip Op. at 12). Rather, this is the "markedly different situation" where "an attorney abandons his client without notice, and thereby occasions the default." (Id.).

A more accurate description of this case is: "SCOTUS gives break to death row petitioners whose lawyers abandon them without notice"

Posted by: DEJ | Jan 18, 2012 11:57:14 AM

Joe, your post shows ignorance. Attributable to the state does not mean blame. It means that the state, as a litigant, pays the price.

You'll note, of course, that my beef isn't so much with the result, although I deplore that. What I deplore, among other things stated above. is the fact that they took this case, yet leave many cases where the state is jerked around by federal habeas cases untouched, and Kindler is an example that cried out for intervention. The other problem with the case (unmentioned above) is that attorney abandonment, which heretofore, in the cases, anyway, had a gloss of conscious disregard for the client's interests, now picks up a botched handoff in a law firm and the division of labor of the defense teams. Whatever label you attach to the S & C associates' action here, the bottom line is that they handed it over to the partner--so their actions were simply negligent (no one suggests that they did anything coming close to the conscious disregard of Maples' rights), and errors resulting from attorney negligence are chargeable to the client in state PC proceedings. Labeling this as abandonment, and disregarding the fundamental nature of the mistakes made is a tromp l'oeil, and it's highly disingenuous.

Lastly, and I may be wrong on this, there is a significant issue--what amount of deference does the federal habeas court have to give the state post-conviction court. There is a state decision on the merits. And before everyone says it can be ignored, the language of AEDPA doesn't seem to admit of distinctions between state trial courts and state appellate courts. If I am wrong on this, happy to be corrected.

Posted by: federalist | Jan 18, 2012 12:19:07 PM

Yeah, guys, care to deal with the sandbag problem? And the associated impropriety of a federal court reviewing a state conviction allowing a switch in pled facts? All in favor of a capital murderer.

Or how about juxtaposing this highly fact bound case with Kindler, where the federal courts trampled on the integrity of Pa, judicial proceedings?

Nope. This case is disgusting, and I am not even, until now, mentioning that the Court's intervention smells a lot like a bunch of white shoe lawyers helping out other white shoe lawyers. I wonder if S & C were some smaller shop whether this case would have gotten the attention.

And the "abandonment" tromp l'oeil is very disingenuous.

Posted by: federalist | Jan 18, 2012 12:24:01 PM

reader: Kindler follow up is here and here.

Posted by: Kent Scheidegger | Jan 18, 2012 12:34:53 PM

"Joe, your post shows ignorance."

The dictionary informs me "attribute" means "To relate to a particular cause or source; ascribe." Paying the price ... not quite that, is it?

If you want to use a specialized definition, fine, but I'm not really "ignorant" to not pick up on it. Now, per our past dispute, you have no need to care, especially since we clearly have very different views, but the tack there is not very productive imho.

Posted by: Joe | Jan 18, 2012 12:36:18 PM

Joe, I am using language from the case law. "Attributable" means, in this context, that the state pays the price.

Posted by: federalist | Jan 18, 2012 12:52:39 PM

hmm

"Yeah, guys, care to deal with the sandbag problem? And the associated impropriety of a federal court reviewing a state conviction allowing a switch in pled facts? All in favor of a capital murderer."

fed you want to wake up and take the crazy weed ciggie out of your mouth!

as for a swtich in plead facts! hell the state and the febs do that all the damn time when they get their hands handed to them via DAN.....suddenly what was a single attacker SUDDENLY becomes a group attack where that DNA that DOESN'T belong to the convicted individual is SUDDENLY a SECOND UNKNOWN ATTACKER!

sorry your so full of it you should be a thanksgiving turkey!

in this case the LAWYERS screwed up! what's sad is it had to go all the way to the supreme court to FIX IT! the real pity is while the court ADMITS the LAWYERS messed up...they REFUSE to take that NEXT logical step and PUNISH THE LAWYERS!

Posted by: rodsmith | Jan 18, 2012 1:20:53 PM

What I found interesting in Alito's concurrence was something more implicit than stated: that there are instances where the cumulative effect of errors made by counsel will amount to ineffective assistance. This is not necessarily a new doctrine. Cumulative ineffective assistance has its genesis in Strickland, but it is not often cited by any court as grounds for reversal of anything. Perhaps some - or many - courts that have reversed based on a single instance of ineffectiveness are tacitly also considering the big picture, but I thought it was mildly surprising to hear Alito say, in effect, hey, may be one of these errors doesn't get Maples past cause, but all of these together do. Down the line, I could see that as being important in the habeas/ineffective assistance jurisprudence, which is where I spend a lot of my time as an attorney...

Posted by: MAY | Jan 18, 2012 1:33:54 PM

I hope commenters will remember this decision the next time we hear that the boogeyman in capital cases is the government.

Q: When oh when is the organized defense bar going to take some responsibility for the lapses, to put it charitably, OF ITS OWN MEMBERS?

A: Roughly when Jon Corzine finds the billion or so of investors' money he "misplaced."

IAOC claims have become one of the principal, if not the principal, levers to get capital convictions and sentences reversed. That in turn has contributed significantly to the large cost of capital cases, a cost that is starting to draw a lot of complaints.

One obvious way to help defray the costs of the do-over that becomes necessary because of the errors of X is to require X to pay for it. (In addition, of course, this is only just: When I ram my neighbor's car, I'm the one who should have to pay for the repair. This is not rocket science).

When X is the government's lawyer, too bad, pay up.

When X is the defendant's lawyer, too bad, pay up.

The particular parties responsible, not always and ever the taxpayers, should have to pay for the consequences of their misdeeds.

Posted by: Bill Otis | Jan 18, 2012 2:22:22 PM

Q: When oh when is the organized defense bar going to take some responsibility for the lapses, to put it charitably, OF ITS OWN MEMBERS?

A: They do. They are called ineffective assistance of counsel claims which are prosecuted by defense lawyers against other defense lawyers. Once you are found ineffective, in many instances, that bars you from practicing in future capital cases. Such a finding can also prevent from practicing in some courts at all.

Now if we could just get someone to help out the Orleans Parish DA's office.

Posted by: FPD | Jan 18, 2012 2:49:20 PM

Has Bill changed his tune on prosecutorial immunity or are his positions just a matter of convenience.

Today he says:

One obvious way to help defray the costs of the do-over that becomes necessary because of the errors of X is to require X to pay for it. (In addition, of course, this is only just: When I ram my neighbor's car, I'm the one who should have to pay for the repair. This is not rocket science).

When X is the government's lawyer, too bad, pay up.

On May 6, 2011 Bill said:

Without immunity, the prosecutor would have to answer 100 or 200 or 5000 trifling, vexatious lawsuits filed by even the most obviously guilty and menacing of defendants. One can scarcely think of a better way to tie down the prosecutor's office so that it would never be able to put away the guilty (and thus be even less effective than what you criticize it for being now).

And there's the practical side as well. People who sue welders have to bear their own costs and invest their own time, so they have an incentive to avoid frivolous claims. People who sue prosecutors are almost all in forma pauperus (indigent) and have their costs paid for them, either by the taxpayers or by pro bono groups and firms. Mostly they're just sitting there in prison either watching TV or going to some rehab program in which they have no interest. So we have a huge class of plaintiffs with time on their hands, no costs to bear and nothing to lose by trying. Plus they gain "street cred" with their fellow inmates by being a "tough guy" with the DA.

There are occasional instances where the doctrine of immunity seems unfair. But there are occasional instances where every legal doctrine ever created seems unfair. The overall advantages and disadvantages of having it are such that the judgment in Imber was unanimous. Even Brennan and Marshall explicitly approved of absolute immunity and "much of the reasoning" supporting it.

Inquiring minds want to know.

Posted by: ? | Jan 18, 2012 3:01:02 PM

FPD --

You avoided the specific question of why the lawyer who causes the reversal shouldn't have to shell out THE DOUGH for the do-over his blunder required.

I was already aware that the defense bar joyfully engages in the cannabalistic practice of (publicly) accusing one another of being ineffective, while (privately) toasting each other for snookering the system yet again.

Posted by: Bill Otis | Jan 18, 2012 3:03:57 PM

Bill -

I did not realize you were asking a specific question in your post, I just thought you were musing on why lawyers should pay for making mistakes. I certainly do not see a question in your post.

Now to answer your previously asked "question", I was not aware that defense counsel were immune from civil liability and civil suits. Many defense lawyers I know carry malpractice insurance. If they caused a harm, they can be sued and the victim can recover.

Gosh I wonder why that should not apply to prosecutors...ahh yes because they are immune.

Having done this for quite some time, to suggest that defense counsel get together and privately toast each other for, what you refer to as "snookering the system", is a lie. In my years of practice I have never had a lawyer volunteer that he was ineffective and in most cases I have had suspected lawyers of doing everything they can (e.g., losing the file) to avoid being called ineffective. Indeed, many judges are wary of publicly labeling defense counsel ineffective, but instead they will just quietly remove the lawyer from the CJA appointment list.

So what do we do about the Orleans Parish DA's office?

Posted by: FPD | Jan 18, 2012 3:53:51 PM

While this is all very nice, the real question is how will SullCrom list this on their "pro bono" page :)

Posted by: virginia | Jan 18, 2012 6:54:29 PM

Hurray for Alito! Siding with the libs AGAIN. I think it's a trend!

And speaking of the New Orleans D.A.'s office, when oh when is the organized prosecutorial bar going to take some responsibility for the lapses, to put it charitably, OF ITS OWN MEMBERS?

Posted by: 1234567 | Jan 18, 2012 6:58:41 PM

FPD --

I wasn't asking the procedural question whether defense counsel can be sued. I was asking the substantive question whether they should have to pay the costs of a retrial their incompetence has made necessary.

Should they?

P.S. I know zip about the New Orleans DA's office. If I had to take a wild guess, however, I'd say that what should be done is for the voters to replace bad/dishonest public officials with good/honest ones.

P.P.S. I'll deal later with your accusation, made anonymously as ever, that I'm a liar. For now I will say only that I'm grateful you have not (yet) called me a necrophiliac, pedophile, savage or Nazi, all of which have been used by your allies without any stated consternation from you, Mr. Holier than Thou.

Posted by: Bill Otis | Jan 18, 2012 7:53:37 PM

? --

You can't possibly be this dense. Maybe that "inquiring mind" you give yourself credit for is just having a bad day.

I stated earlier, and will state again, that prosecutors should be immune from SUITS BY DEFENDANTS, for the reasons ably set forth by the Supreme Court in its opinion, WITHOUT DISSENT, in Imbler v. Pachtman, which you make no effort to rebut. (Imbler, incidentally, was written by that right wing nut Lewis Powell, and joined in full by abolitionist hero Harry Blackmun).

I have stated on this thread, and will state again, that attorneys whose errors require a retrial should have to pay the costs they create. But I never said that this should be done via a lawsuit brought by a party. The obvious and natural way for it to be done is for the court to tally up the costs the retrial incurs, and require the responsible lawyer to pay up.

At no point did I say, nor does my position commit me to the proposition, that the holding of Imbler be overturned or infringed in any way. In addition, I have never said, and do not believe, that prosecutors should be exempt from sanctions imposed BY THE COURT for unprofessional behavior.

The difference between court discipline (which is scarcely uncommon, before Imbler and after) and allowing vexatious lawsuits to filed by the thousands by criminal defendants is so obvious that, as I say, you couldn't possibly be this dense.

I am gratified, however, that you follow my postings so closely.

Posted by: Bill Otis | Jan 18, 2012 8:18:43 PM

"Hurray for Alito! Siding with the libs AGAIN. I think it's a trend!"

We had a Breyer/Alito dissenting opinion today. He concurred separately with Kagan the other day. Is he having a left side / right side meet-up with each "liberal" (so to speak) on the Court? Conservatives were robbed I tell ya!

Posted by: Joe | Jan 18, 2012 8:22:02 PM

DEJ, your description is just as slanted as the opinion. The abandonment happened despite the associates' efforts to turn over the file to a partner in the firm who had responsibility for it. Calling this abandonment, but neglecting to mention this crucial fact, confirms just how disingenuous the Court's opinion is, as well as your statement. The fact remains that the "abandonment" was the result of simple negligence and not anything close to the horror story that the term connotes. Under Coleman, errors resulting from simple negligence (and that's all we had here) are chargeable to the client, not the state. And this, despite the bloviating from the Court, is not markedly different from Coleman. That sort of intellectual dishonesty is beneath the Court and an affront to the state of Alabama.

Posted by: federalist | Jan 18, 2012 10:31:20 PM

Bill:

As you know I am dense but maybe you could deign to enlighten us as to how does your judge as overseer of the criminal bar scheme works for Brady violations?

Having uncovered and successfully litigated a number of Brady violations I have never thought their resolution really adequately addressed the degree to which they undermine the legitimacy of the legal system. Some Brady violations are caused by the when they fail to turn over defense- favorable material to the prosecutor. Some Brady violations are caused by prosecutor negligence. Some Brady violations are intentional. And some Brady violations are turned into ineffective assistance of defense counsel because the judge can’t bring himself to find against the state, his friend/fellow office-holder-- the prosecutor, so the judge gives relief by saying defense counsel had the materials all along and were ineffective in failing to use them. Should there be any difference in the outcomes listed above when the judge sanctions the offending attorney?

What is the paradigm for such a scheme? Financial incapacitation? Retribution, rehabilitation, deterrence?

Who pays? The prosecutor out-of-pocket? The state as employer? The state as payor for the insurance?

Can the lawyer purge themselves of IAC or prosecutorial misconduct? Or are they like felons – permanently disabled-- from practicing criminal law?

Posted by: ? | Jan 18, 2012 10:40:08 PM

I have to agree with federalist's assessment of Alito et al's decision on this one. It definitely has the appearance of a "classist" decision. Like federalist, I doubt that the decision would have come out the same way had the blunder been commited by a public defender rather than by "white shoe" lawyers from a fancy law firm. I don't know whether federalist and Bill are "classist," but Alito and his pals definitely seem to be.

Posted by: agreeing with federalist for the first time ever | Jan 19, 2012 12:04:34 PM

Just a typical lawyer screw-up but in this case the high court decided to do the right thing and give the guy another chance. Lawyers have no one to blame but yourselves for this one. Maybe if the lame ones who dropped the ball on this one just followed through and did a better job representing their clients the outcome may have been different.

Posted by: citizen x | Jan 19, 2012 6:48:50 PM

? --

I might answer some of your questions after you acknowledge and apologize for your phony accusation that I was being inconsistent in supporting both (1) the unanimous holding in Imbler that prosecutors are immune from suits by criminal defendants, and (2) the notion that lawyers should have to repay those (including and particularly, but not limited to, the court and the Treasury) for the costs of a retrial their incompetence has made necessary.

As an extra added bonus, you might try to explain why you think you know better than the Imbler court, which, again, had no dissenters.

And as a super-dooper added bonus, you could quit hiding and identify yourself, as I do in every post.

Don't worry. I'm not expecting any of it. It's not your kind of thing. Just stay on offense, and stay in hiding.

Posted by: Bill Otis | Jan 19, 2012 7:44:13 PM

Bill:

Thanks for another ad hominem attack. Very classy.

Telling a prosecutor that they have to pay up means they don't have absolute immunity which is at odds with your ringing endorsement "Even Brennan and Marshall explicitly approved of absolute immunity . . ."

I don't identify myself because: (1)I am not a narcissist; (2)I don't need the press; (3) I don't need to give more people reasons to dislike me and then take it out on my clients; (4) I enjoy my privacy.

Imbler is not the proper measure--take a look at the less than unanimous Connick v.Thompson.

I would expect a psuedo-academic, as you appear to be, would jump on the chance to flesh-out your premise that judges should be the sole evaluators of prosecution and defense mistakes in your judge as overseer of the criminal bar scheme. Believe or not, after you backpedaled and distinguished suits brought by criminal defendants from judge instigated sanctions, I think you might have a good idea. I want to hear more. Of course, you can stay in hiding by not fleshing it out.

Posted by: ? | Jan 19, 2012 9:47:56 PM

? --

You're too dishonest, snide, and annoying to spend a whole lot of time with. And the reason you don't identify yourself has nothing to do with anti-narcissism. Is Jonathan Edelstein a narcissist? Mark R. Levine? Marc Shepherd? Kent Scheidegger? Soronel Haetir? What complete (and transparent) tripe.

Nor does it have anything to do with publicity. No one, apparently with the exception of you, thinks there's any publicity to be had by being a commenter on someone else's blog.

The reason you won't identify yourself isn't that hard to figure out. You don't want to take responsibility for what you say. Given its content, I guess I can't blame you.

P.S. I see you're still refusing to take on Imbler, which your side lost, instead scampering away to Connick, which it also lost. Is that the defense bar's version of "winning argument?"

Far out. Just far out.

Posted by: Bill Otis | Jan 19, 2012 11:42:19 PM

hmm

"The abandonment happened despite the associates' efforts to turn over the file to a partner in the firm who had responsibility for it. Calling this abandonment, but neglecting to mention this crucial fact, confirms just how disingenuous the Court's opinion is, as well as your statement. The fact remains that the "abandonment" was the result of simple negligence and not anything close to the horror story that the term connotes. Under Coleman, errors resulting from simple negligence (and that's all we had here) are chargeable to the client, not the state. And this, despite the bloviating from the Court, is not markedly different from Coleman. That sort of intellectual dishonesty is beneath the Court and an affront to the state of Alabama."

Horse PUCKY! you can cover it in legal baloney all you want FED but no matter WHO they worked for THE LAWYERS screwed the pooch here!

no matter who they worked for and i'd be willing to bet BOTH SIDES were PAID BY THE STATE! failed to do their jobs!

and now YOU want to PUNISH the ONE PERSON who had NO CONTROL OVER IT!

that any court could possibly think that is EVEN CLOSE TO LEGAL should be TREASON! sorry the way this country was founded in ANY question between CITIZEN and GOVT! CITIZEN WINS! since last time i looked the GOVT get's its authority from the citizens.

NOW it would be diff if there was any evidence the defendant was responsible for the mess up. Absent that it is CRIMINAL to punish him/her for the LAWYERS SCREW UP!

Posted by: rodsmith | Jan 20, 2012 12:41:19 AM

"and now YOU want to PUNISH the ONE PERSON who had NO CONTROL OVER IT!"

Um yes. Else, the State of Alabama pays the price. Don't commit capital murder, and this wont happen to you.

Posted by: federalist | Jan 20, 2012 1:00:01 PM

I agree with FPD about the IAC collusion/backslapping issue. This is one of those tropes that appeals to people's desire to be outraged and plays nicely on preconceptions about lawyer sleaziness, but in fact has scant to no basis in reality. I've certainly never seen it the postconviction IAC cases I've been involved in. Indeed, in the vast majority of those cases, trial counsel have been actively hostile to the postconviction defense lawyers, have met with prosecutors and then come to the evidentiary hearing and parroted whatever unlikely, post-hac "strategic" reasons the prosecutors have suggested to them, etc.

I'm not saying it's not possible that some form of collusion occurs in a vanishingly small micropercentage of cases, but of course that is true in every area of the law -- there is always the possibility of fraud around the edges. But realistically speaking, there is no sandbagging/collusion phenomenon at the root of the often terrible defense lawyering in capital cases. Rather, this is an Occam's Razor situation -- the terrible lawyering results from assigning massively underqualified, underpaid attorneys to do the job.

(Also, I feel compelled to note that if someone did in fact think their best strategy to defend a capital case was to be ineffective at trial and count on a later IAC claim to save the day, not only would that be wildly unethical, but it would be wildly stupid to boot. Given the vagaries of Strickland, state procedural defaults, and AEDPA deference, not to mention the unpredictable and massive variance in the quality of available postconviction counsel, the ex ante odds against succeeding on an IAC claim -- regardless of the level of incompetence displayed at trial -- are forbidding. The best strategy, as always, is hard work and meticulous preparation starting as early as possible. This approach can often lead to a plea, or at least a reasonable chance at an LWOP verdict. But of course, you need some level of skill and money to do it.)


Posted by: Anon | Jan 20, 2012 1:42:48 PM

Anon --

This is what FPD said: "Having done this for quite some time, to suggest that defense counsel get together and privately toast each other for, what you refer to as 'snookering the system', is a lie. In my years of practice I have never had a lawyer volunteer that he was ineffective and in most cases I have had suspected lawyers of doing everything they can (e.g., losing the file) to avoid being called ineffective."

Note that FPD conspicuously uses only his own experience as a basis for claiming the absence of collusion. In agreeing with him, you do the same.

There is nothing wrong per se in using one's own experience in assessing what goes on in IAOC claims. The problem comes when one mistakes one's own experience for the universe of experience. It was that problem (plus bad temper) that led FPD to call me a liar when I said there was indeed collusion.

I did not say, and do not believe, there is ALWAYS collusion -- indeed I implied the opposite by saying IAOC suits are cannabalistic. As you correctly note, however, there is a segment of cases in which there is collusion and backslapping. Reasonable minds can differ on how much. You say it's a "vanishingly small micropercentage;" my impression, based on 18 years' experience litigating post-conviction federal cases, is that it's certainly a minority, but larger than you believe.

A good portion of one's assessment of the extent of the problem is going to stem from the sort of practice one has. If you're a member of a national firm with a specialty in post-conviction relief, then I have no doubt that you virtually never see a collusion/backslapping case. It's just wildly unlikely that a firm of that type (say, in L.A. or NYC) is going to have been in collusion with the original defense counsel in Duluth. Such would not be the case, however, in a smaller legal communinity in which all or many of the defense lawyers know one another, and it's understood and accepted, if not encouraged, for Lawyer A to (in the post-conviction filings) attack Lawyer B as ineffective. This is because they both know that, in six months and in a different case, Lawyer B will be doing the exact same thing to Lawyer A. It's ostensibly antagonistic but actually quite cozy.

P.S. While I largely agree with your last paragraph, there are cases so hopeless that "planted error" -- designed specifically to be exploited in a post-conviction challege -- would not be an irrational strategy. I litigated one of that general variety in my younger years, US v. Calvin Breit, 712 F.2d 81(4th Cir. 1983), available here: http://bulk.resource.org/courts.gov/c/F2/712/712.F2d.81.82-5309.html

It may be worth noting that the convicted defendant, Mr. Breit, was himself a lawyer, and something of a big deal. There's a bit more going on, I'm afraid, than, as you put it, mere "preconceptions" about lawyer sleaziness.

Posted by: Bill Otis | Jan 20, 2012 2:34:01 PM

i agree with this bill!

"I did not say, and do not believe, there is ALWAYS collusion -- indeed I implied the opposite by saying IAOC suits are cannabalistic. As you correctly note, however, there is a segment of cases in which there is collusion and backslapping. Reasonable minds can differ on how much. You say it's a "vanishingly small micropercentage;" my impression, based on 18 years' experience litigating post-conviction federal cases, is that it's certainly a minority, but larger than you believe."

Just like based on the 1000's of articles and court cases showing we now have a good number of federal and state prosecutors willing to do WHATEVER it takes to get that conviction....

i know it's not every prosecutor but becasue of the good prosecutors and the courts FAILURE to punish them when caught it makes it all worse.

Posted by: rodsmith | Jan 20, 2012 2:49:31 PM

as for this fed!

"and now YOU want to PUNISH the ONE PERSON who had NO CONTROL OVER IT!"

Um yes. Else, the State of Alabama pays the price. Don't commit capital murder, and this wont happen to you.

Posted by: federalist | Jan 20, 2012 1:00:01 PM"


this comment was almost too stupid to respond too.

so your basicaly saying it's perfectly legal to PUNISH the WRONG PERSON. Guess that means the next time someone cuts me off in traffic i can DECIDED TO PUNISH YOU FOR IT!

ok WORKS FOR ME!

If the state of alabama or any other doesn't want to get PUNISHED for the lawyers it's more than likely PAYING for! there is a simple solution!

PAY FOR BETTER LAWYERS!

might also help to stop prosecuting so many bullshit charges and save that money and time for REAL CRIME like this one!

Posted by: rodsmith | Jan 20, 2012 2:52:31 PM

federalist - Stop spitting from behind the curtain; it really upsets Bill. As he frequently points out, real men identify themselves on this blog.

Posted by: aba | Jan 20, 2012 6:30:54 PM

hmm it's good for bill to get upset every so often...keeps the BLOOD FLOWING!

Posted by: rodsmith | Jan 20, 2012 8:35:08 PM

Well, Bill knows who I am. By the way, I typically respond to challenges. I note how that usually doesn't happen to the points I raise.

Is anyone going to defend the switcheroo on facts pled? If all you guys are soooooo smart and I am so dumb, why can't anyone take me on?

Posted by: federalist | Jan 20, 2012 8:38:33 PM

aba --

"...real men identify themselves on this blog."

You can start anytime.

If you don't know federalist, you might want to correct that. I did, and found a principled and really smart lawyer. His posts are, for by far the most part, analytical and case-oriented.

Could you say the same of yours?

Posted by: Bill Otis | Jan 20, 2012 9:05:18 PM

Unfortunately the general public believes most if not all lawyers are lying scoundrels; are incompetent; are corrupt; and are fabulously wealthy.

To make matters worse, we compound this by arrogantly talking over their heads when we discuss or argue about legal rules (sometimes well-settled) that we all understand and take for granted.

When it comes to the DP the general public does not care about federalism, the finality of judgments, waiver, default, AEDPA, or "pled facts". It's all mumbo-jumbo to them. Not because they're stupid, but because we don't explain these concepts, and some of these concepts are not easily explained.

But they do understand ineffective assistance of counsel. (After all they think we're all incompetent anyway.) But most importantly they expect appellate courts to do error correction (although they wouldn't call it that), and the mumbo-jumbo of federalism, the finality of judgments, waiver, default, AEDPA, or "pled facts" are not excuses for not doing it.

We have a number of non-lawyers who regularly comment here. Their opinions are very common and are held by a lot of people who could be seated as a juror. There are some good examples of non-lawyer comments up-thread.

But some of the lawyers who comment here are completely tone-deaf to the implications of the non-lawyers' comments. It's like they don't matter.

Posted by: Fred | Jan 20, 2012 11:42:04 PM

For me, I try to address every comment that comes my way, whether from a non-lawyer or a lawyer. I do talk in legal terms, but that's because I am a lawyer. I do try to tie my comments to justice in these sorts of cases, and I do believe that it is completely just for Alabama to insist upon compliance with these deadlines. My opening comment, while in the language of lawyers, does attempt to ask questions a layman may understand. Should capital murderers, of all litigants, be given favored treatment, particularly where we have the US Supreme Court, whose time is limited, intervening? Should the Supreme Court reach down and grab this case (saving the bacon of a white-shoe law firm, by the way) when it ignores a case where a federal court did not give effect to a state court tossing the appeal of a fugitive from justice? With respect to "pled facts," fine, but the reality is that the Supreme Court basically allowed Maples to do a switcheroo in medias res. What other litigant would get that kind of break, and if we are going to hand out breaks like that, should it be for an unquestionably guilty capital litigant?

And if laypeople here have questions about terminology or caselaw, then they can always ask.

Personally, I stand by my assessment. This case disgusts me. Absolutely disgusts me. What I think the majority is doing is sending a message---we're going to jump through hoops to preserve a capital litigant's habeas review, and states, you better be cool, or else your state judgments may not get AEDPA effect. Anyone with half a brain knows that this case IS Coleman. The cause of the failure to file was simple negligence--whether the label "abandonment" fits or not. Coleman talks in terms of "attorney inadvertence": "In a case such as this, where the alleged attorney error is inadvertence in failing to file a timely notice, such a rule would be contrary to well-settled principles of agency law." This case was simply inadvertence. The two S & C associates tried to hand off the case, and while much indeed can be made of their failure to notify the Alabama court, the fact remains that this was a negligent screw-up, not a situation where these attorneys were simply indifferent to Maples' situation.

That the Supreme Court chose to interfere here, while leaving the lawless Kindler disposition in place, is appalling, and, in my view, a stain upon that Court, and yet another example of the utter irresponsibility of federal courts in their habeas review of capital cases.

Posted by: federalist | Jan 21, 2012 4:18:04 PM

ahh so you admit the lawyers SCREWED UP! great! now take that next GREAT LEAP and PUNISH THE LAWYERS.

the inmate was legally intitled to a review/appeal and becasue of the screw up by the lawyers you are trying to block it.

sorry that's JUST WRONG on so so many levels!

i have no clue what kindler is and as far as this case goes I DON'T CARE. All that matters in THIS case. is THIS CASE! and in this case he was deprived of an appeal review becasue of the LAWYERS SCREW UP.

so PUNISH THE LAWYERS. shove em in a jail for a year....bet next time they do the paperwork right!

Posted by: rodsmith | Jan 22, 2012 3:54:47 PM

lol Fred you had the old nose with a sledge hammemr with this!

"When it comes to the DP the general public does not care about federalism, the finality of judgments, waiver, default, AEDPA, or "pled facts". It's all mumbo-jumbo to them. Not because they're stupid, but because we don't explain these concepts, and some of these concepts are not easily explained.

But they do understand ineffective assistance of counsel. (After all they think we're all incompetent anyway.) But most importantly they expect appellate courts to do error correction (although they wouldn't call it that), and the mumbo-jumbo of federalism, the finality of judgments, waiver, default, AEDPA, or "pled facts" are not excuses for not doing it."

that's right we don't CARE about the lawyers legal baloney the call language. We DON'T CARE about a case 200 years ago. All we are looking at is THIS CASE! we make our JUDGMENT on THIS CASE! not the last one or the NEXT one ....just THIS CASE!

and in THIS CASE the man had a LEGAL RIGHT to an appeal/review and becasue of the lawyer's screw up the courts tried to BLOCK IT! that is all we NEED TO KNOW!

the lawyers need to shut up and give the man his LEGALLY REQUIRED REVIEW and move on! before some of those normal people decide it might be time to stand up and DEMAND the lawyers be punsihed for stupidity like what was showed by the lawyers in THIS CASE...the whole bunch needs to spend a little time in a prison...

Posted by: rodsmith | Jan 22, 2012 3:59:49 PM

and what's really funny is that the U.S. SUPREME COURT agreeded with us NON-LAWYERS!

"The Supreme Court this morning handed down an opinion today in the high-profile (and low-impact?) capital case of Maples v. Thomas. Here is the early report on the ruling via SCOTUSblog:

The Court ... holds that Maples has shown cause to excuse his procedural default. It is an RBG opinion. It is 7-2, with Justice Alito filing a separate opinion in addition to joining the majority. Scalia and Thomas dissent....

Justice Alito explains that he is joining the Court's decision because there were at least 8 facts that combined to deprive Maples of counsel...."


unlike some

"Personally, I stand by my assessment. This case disgusts me. Absolutely disgusts me. What I think the majority is doing is sending a message---we're going to jump through hoops to preserve a capital litigant's habeas review,"

yes it disgusts me to...that it had to go all the way to the u.s. supreme court! once the SCREW UP by the lawyers was discovered the appeal should have been granted and then there would have been NO PROBLEM.

so again ANOTHER PROBLEM created by the LAWYERS!

Posted by: rodsmith | Jan 22, 2012 4:03:14 PM

Rod, your screeds are tiresome. The world has deadlines. And sometimes the penalty for missing them is quite stiff. When deadlines are enforced, that tends to force people to get things in on time. That isn't lawyerese, that's just common sense. And of all the people in the world, who should less get the benefit of a break than a capital murderer? Once again, that's not lawyerese, that's common sense.

Keep in mind, this a$$hole Maples cold-bloodedly shot and killed two people. I'd prefer that courts enforce deadlines against people like him.

Posted by: federalist | Jan 22, 2012 10:22:31 PM

hmm

"The world has deadlines."

no kidding. i never would have known if you hadn't said something


"And sometimes the penalty for missing them is quite stiff."

WORKS for me! as long as your punishing the RIGHT PERSON! which in this case would be the LAWYERS

"When deadlines are enforced, that tends to force people to get things in on time. That isn't lawyerese, that's just common sense."

again i have no problem with that as long as the people enforcing them remember WHY they were put in place in the beginning and don't use them as a backdoor way to PUNISH someone they don't like! which is what happened here! the guy is SLIME and will always be SLIME!"

"And of all the people in the world, who should less get the benefit of a break than a capital murderer? Once again, that's not lawyerese, that's common sense."

WRONG AGAIN! history has show over and over and over that how a society and a people treat the WORSE of them shows more about a society than anything else! Plus of course he's not getting a "BREAK" as you call it. All that is happening is the LEGALLY REQUIRED review he is DUE is being done! that doens't mean his execution won't happen and just think if the courts had not bothered with this stupidity and just done the damn review at the time. most LIKELY he'd be DEAD by now! instead of having an extra few years fighting over the LEGAL review he should have gotten YEARS AGO!

"Keep in mind, this a$$hole Maples cold-bloodedly shot and killed two people. I'd prefer that courts enforce deadlines against people like him."

ME i'd prefer to remember WHY we have them and remember it is PEOPLE we are talking about and remember that once we abuse the sytem like in this case to comit a LEGAL MURDER and it would have been murder absent that LEGALLY REQUIRED review. The entire system has failed and lost whatever little moral authority it had left!

Posted by: rodsmith | Jan 23, 2012 2:41:40 AM

Federalist:

Your reference to the Coleman case is a good example of what I am talking about. The professional anti-DP groups were so successful in selling Coleman to the general public, because the general public did not understand how circumscribed the error correction power of appellate courts really is.

Posted by: Fred | Jan 23, 2012 12:27:34 PM

Again, I will not dispute the possibility of collusion/error-planting in remote cases. But I do think that the reason for the vast, vast majority of IAC claims is bad/under-resourced lawyers. So, I am always worry that an outrageous, but completely out-lieing supposed story of planted error will result in some kind of precedent that cuts back globally on the availability of IAC relief in appropriate cases. (In other words, the classic pattern in which extreme/outlier cases make bad law.)

Posted by: Anon | Jan 23, 2012 1:26:59 PM

I would recommend that everyone listen to the oral arguments, an ethics course in itself. I think there may be consequences for the lawyers, but Alabama's "methods" took a hit as well. One of the justices even asked the Alabama lawyer whether they ever considered consenting to a belated appeal. Needless to say the answer was no, but the question was telling.

Posted by: Stanley Feldman | Jan 23, 2012 9:39:57 PM


Anon --

Thank you for your reply. I'm always happy to find a liberal who's responsive and who doesn't use a flame thrower.

I understand where you're coming from, given your experience, and I hope you understand where I'm coming from, given mine.


Posted by: Bill Otis | Jan 24, 2012 1:21:02 AM

@Stanley Feldman

Why should Alabama consent to a belated appeal? The guy is clearly guilty. Is the Supreme Court in the business of regulating Alabama's actions as a litigant in Alabama courts? Obviously not. The aggressive questioning along these lines was inappropriate, and I wish that the Alabama AG had noted that.

It is funny how everyone who seems to like the outcome here can't seem to tangle with me on the merits. This is a "death is different" decision. It's obvious. I wish the Court would have the intellectual honesty simply to say so.

Posted by: federalist | Jan 24, 2012 9:59:31 AM

hmm

"Why should Alabama consent to a belated appeal? The guy is clearly guilty. Is the Supreme Court in the business of regulating Alabama's actions as a litigant in Alabama courts? Obviously not. The aggressive questioning along these lines was inappropriate, and I wish that the Alabama AG had noted that."


he may in fact be guilty. BUT the state is also GUILTY of denieing him a legal right of appeal becasue of the actions of lawyers THEY more than likely PAID for and he has probably NEVER even seen or even talked to.

"It is funny how everyone who seems to like the outcome here can't seem to tangle with me on the merits. This is a "death is different" decision. It's obvious. I wish the Court would have the intellectual honesty simply to say so."

as for debating you on the MERITS as you call it. there is NO MERIT in this case. The state via the lawyers they hired SCREWED UP....face the music and go on!

Posted by: rodsmith | Jan 24, 2012 12:38:18 PM

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