By Mary Schmid Mergler, senior counsel for The Constitution Project’s Criminal Justice Program. Mergler is the coauthor with Christopher Durocher of the recent ACS Issue Brief “The ‘Right-to-Counsel Term.’"
On Wednesday, the Supreme Court held in Maples v. Thomas that Alabama death row inmate Cory Maples was entitled to have his claims heard in federal court despite a previously missed filing deadline, because his counsel’s complete abandonment of him constituted grounds to excuse that missed filing. The Maples decision was a welcome one, as the triumph of fundamental fairness over procedure and technicalities in our criminal justice system has grown increasingly rare.
Cory Maples was convicted of murdering two acquaintances after a night of drug and alcohol use. His two court-appointed defense attorneys were inexperienced and ineffective. Their entire defense lasted about an hour. They failed to argue Maples’ obvious intoxication defense, and they failed to produce mitigating evidence of severe abuse that Maples had suffered as a child — the sort of evidence that often prevents juries from issuing a death sentence. In fact, the jury voted 10-2 to sentence Maples to death; a 9-3 vote would have meant life in prison.
Two lawyers from the New York law firm of Sullivan & Cromwell (S&C) agreed to represent Maples pro bono during his state post-conviction appeals, since Alabama — virtually alone among death penalty states — provides no post-conviction counsel for death row inmates. A state court denied Maples’ initial habeas petition, triggering a filing deadline to appeal. However, prior to that decision, both of his pro bono attorneys had left S&C without providing the required notice to the court or Maples of their departure. When the notice of the denial and impending deadline arrived at S&C, no lawyer ever looked at it; a mailroom employee returned it, unopened, to the Alabama court clerk stamped “Returned to Sender—Attempted, Unknown.” The Alabama court clerk took no further action to ensure Maples or his counsel received notice. (There was a third attorney of record in the case, but as the Court’s opinion explains, he was only involved as local counsel to admit the S&C attorneys to practice in Alabama courts; he was completely uninvolved in the substance of the case.)
As a general rule, federal courts cannot consider claims of state prisoners in habeas proceedings when a state court has denied those claims based on independent and adequate state procedural grounds. So when Maples subsequently filed a federal habeas petition, the federal district court held that his failure to raise the claims in state court in a timely manner barred the federal court from considering them. Fortunately, an exception to this procedural bar exists if the petitioner can demonstrate “cause for the [procedural] default [in state court] and actual prejudice as a result of the alleged violation of federal law.” The Supreme Court’s opinion in Maples addressed the question of whether such “cause” existed in Maples’ case.
On its face, to even ask the question of whether Maples had cause to excuse the missed filing deadline seems preposterous — how could Maples be responsible for missing a deadline due to actions completely beyond his control when he didn’t even know about the deadline? However, Supreme Court precedent dictates that attorney errors and negligence generally do not constitute sufficient “cause” to excuse missed filing deadlines. The reason, as the Court has explained, is that “the attorney is the prisoner’s agent, and under ‘well-settled principles of agency law,’ the principal bears the risk of negligent conduct on the part of his agent.”
Yet, in Maples, the Court held that the attorneys’ complete abandonment of Maples meant that they were no longer acting as his agents, so Maples no longer had to bear responsibility for the attorneys’ actions. Hence, “principles of agency law and fundamental fairness point to the same conclusion: There was indeed cause to excuse Maples’ procedural default.” With this Supreme Court ruling that cause exists to excuse Maples’ procedural default, the federal district court can consider the claims in Maples’ federal habeas petition.
While the result in Maples is just, in all likelihood the decision will impact very few future cases. Justice Scalia in his dissenting opinion sounds an alarm that the majority opinion has provided a new “word game” by which future petitioners will be able to establish cause for default: “The trick will be to allege, not that counsel was ineffective, but rather that counsel’s ineffectiveness demonstrates that he was not a genuinely representative agent.” However, it won’t be that easy in reality. The facts in Maples were extreme. Garden variety attorney errors may be common, but leaving a client completely in the lurch with no warning and without the client discovering until it’s too late, is unusual. In fact, the majority opinion is peppered with references to how unusual the facts of Maples’ case were (e.g., “extraordinary facts,” “exceptional circumstances,” “uncommon facts,” “unusual circumstances,” “extraordinary circumstances,”).
Still, the case does continue a trend of the Court’s backing away from strict adherence to the idea that a defendant bears complete responsibility for his attorney’s errors in post-conviction cases (where the defendant has no constitutional right to the effective assistance of counsel). The Court issued a similar decision in Holland v. Florida in 2010, when it held that “serious instances of attorney misconduct” could constitute the “extraordinary circumstances” that would warrant equitable tolling of a federal habeas filing deadline. In Holland,as in Maples, the defendant was “blameless for the default.” As a result of these two decisions, we could see courts more willing to excuse defaults and missed deadlines in the more extreme cases of attorney error, when the petitioner-client has not contributed to the mistakes.
Interestingly, the majority opinion does allude to the elephant in the room: Alabama does not provide any counsel for post-conviction appeals, even in death penalty cases. The Court’s opinion notes that the State relies on a patchwork system of volunteer attorneys, and “[o]n occasion, some prisoners sentenced to death receive no post-conviction representation at all,” referencing a 2006 American Bar Association report that found 15 of Alabama’s death row inmates were unrepresented. Why mention this fact at all? It is, after all, irrelevant to the legal opinion. In fact, Justice Scalia criticizes the curious reference to the lack of state-provided post-conviction counsel, noting that it is “so disconnected from the rest of [the Court’s] analysis as to be otherwise inexplicable” except to express “an understandable sense of frustration with the State’s refusal to waive Maples’ procedural default in the interest of fairness.”
The “interest of fairness” is a weighty consideration though. Fairness dictates that petitioners like Maples, whose lives are on the line, should have the opportunity to present cognizable legal claims in court and should have the assistance of counsel to ensure that these claims are raised in an effective and timely manner. But, we know that in Alabama, and in many other states in less obvious ways, that isn’t happening. While Maples won’t change that, at least the Court has taken notice. The Court denied cert in a case that would have considered this question less than five years ago (see Barbour v. Allen cert petition). But now that it has taken notice of the extreme failures of Alabama’s system, we can at least hope that, with the right case, change may be coming down the road.