Monday, January 23, 2012

Alabama's Backwater of Justice in Death Cases

      Some 80 years ago, a citizens’ posse in Alabama hauled nine black teenagers off a railroad car and turned them over to authorities to be charged with raping two white girls. The Scottsboro Boys, as they came to be known, were convicted and all but one of them sentenced to death after a series of trials with inadequate legal representation and conducted in a mob atmosphere.
      Well before the due process revolution, the Supreme Court could not countenance the product of Alabama’s criminal injustice system — even with four doggedly conservative members. Twice, the court ordered new trials, first because of the lack of effective legal representation and then because of the systematic exclusion of African Americans from juries. Even after one of the accusers retracted the charges, four were convicted in a third trial. Alabama courts to the contrary notwithstanding, history now judges them to have been innocent.
      Today, Alabama remains a backwater of justice in death penalty cases. But last week [Jan. 18], the Supreme Court — once again with four doggedly conservative justices – gave an Alabama death row inmate a limited reprieve. The court’s 7-2 decision in Maples v. Thomas gives Cory Maples a second chance, despite Alabama’s strenuous opposition, to show that he was convicted and sentenced to death only after being denied his Sixth Amendment right to effective assistance of counsel.
      Maples’ conviction and sentence are products of Alabama policies that give indigent defendants in capital cases only the bare rudiments of a legal defense. Court-appointed lawyers for indigent defendants need nothing more than five years’ experience in criminal cases. They need not have handled a capital case before, and they do not have to undergo any training in the special procedural rules for capital cases.
      Until 1999, court-appointed attorneys were paid only $40 an hour in the courtroom and $20 an hour out of court, with a $1,000 cap on out-of-court work. The cap was removed in 1999, and pay raised — but only to $70 an hour for work in or out of the courtroom.
      With capital defense so constrained, Alabama unsurprisingly ranks high in the number of executions since capital punishment was restored in 1976: sixth among the states with 53 executions. And the state ranks fifth in the nation in the number of inmates currently facing death sentences, with 206 prisoners on death row. More than two-thirds of them were sentenced before the modest rise in indigent defense compensation in 1999.
      Alabama is also one of the few states that does not guarantee representation to indigent capital defendants in postconviction proceedings. Death row inmates must look to volunteer lawyers for help, often to young lawyers performing pro bono service at big, out-of-state law firms.
      Maples was charged with killing two friends in 1997 while out on the town with them. He was represented at trial by two court-appointed attorneys. Only one had ever tried a death penalty case, and he had not taken the prior case through a penalty phase hearing. Maples was convicted and sentenced to death, and his conviction and sentence were upheld on appeal.
      Maples then filed a petition for postconviction relief in state court based on ineffective assistance at counsel, represented in the proceeding by two young lawyers from the New York firm of Sullivan & Cromwell: Jaasai Munanka and Clara Ingen-Housz. Predictably, an Alabama judge denied Maples’ plea. The court clerk’s office mailed notice of the decision to the two New York lawyers and to the Alabama lawyer who agreed to serve as local counsel as long as he did not have to actually work on the case.
      Now, Maples fell victim to what Justice Samuel A. Alito Jr. called in a concurring opinion “a veritable perfect storm of misfortune” that caused him to miss the deadline for appealing the decision through no fault of his own. Munanka and Ingen-Housz had left Sullivan & Cromwell, but failed to notify Maples, the local lawyer, or the Alabama trial court of their move. The Sullivan & Cromwell mail room returned the notice to the court clerk, unopened. The local lawyer ignored it, assuming that the New York lawyers were still on the case. The court clerk did not attempt to find Munanka or Ingen-Housz.
      With the deadline missed, the state appellate court dismissed Maples’ appeal. In urging dismissal, the state’s attorney said that Maples could still file a federal habeas corpus petition. But when he did, the state’s lawyers said that federal courts should dismiss the petition because of his “procedural default.” As Justice Ruth Bader Ginsburg noted in her majority opinion, there was “some tension” between the state’s two positions.
      Ginsburg led six other justices, including Alito and fellow conservative Chief Justice John G. Roberts Jr., in concluding that Maples was entitled to an appeal because he had been abandoned by his lawyers. “In these circumstances, no just system would lay the default at Maples’ death-cell door,” she wrote. Perhaps not, but Justices Antonin Scalia and Clarence Thomas would have. Alabama was entitled “to stand on its rights,” Scalia wrote, “and enforce a habeas petitioner’s procedural default even when counsel is to blame.”
      Maples now gets a chance to argue his Sixth Amendment claim before a federal judge, who will have no vested interest in excusing Alabama’s record in indigent capital defense. As Ginsburg suggested, a just system — but not Alabama — would give Maples at least that much.


  1. Actually, until June of 2011 defense attorneys were paid $40 per hour out of court and $60 per hour in court. They were also able to ask for some amount of overhead expenses, per hour, if they were pre-approved by the appointing court. For many attorneys, the new $70 per hour rate, with no overhead expenses allowed, will be a decrease in pay.

  2. Thanks for the additional information, beyond what Justice Ginsburg set out in her opinion for the Court. It's interesting that in his dissent Justice Scalia said the background information was not pertinent to the issues.