Death penalty

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.

By Andrew Love, a death penalty lawyer in California and author of the blog Fair and Unbalanced, which originally published this post.

Death row inmate David Murtishaw died Tuesday of a heart attack. He was sentenced to death 32 years ago for the 1978 murder of three USC film students. Had the crime occurred just nine months earlier, before the re-institution of California's death penalty law, the enormous costs attendant to capital punishment, both financial and otherwise, would have been avoided.

The California Commission for the Fair Administration of Justice (CCFAJ), after its extensive study of the state's death penalty system, concluded that with extremely rare exceptions, death sentences are unlikely ever to be carried out. Former Chief Justice Ronald George acknowledged this when he testified before the CCFAJ and described it as "dysfunctional." Indeed, the process for reviewing death sentences is “plagued with excessive delay” in the appointment of post-conviction counsel and a “severe backlog” in the Court’s review of appeals and habeas petitions. CCFAJ's report found that it would be excessively costly to even attempt to make the system workable. The reality is that California's death penalty is broken beyond repair.

David Murtishaw's is a case in point. Three trials. Three state appeals. Three state habeas petitions. One round of federal habeas proceedings. Thirty-two years under sentence of death only to die of a heart attack. (Since 1978, while there have been 13 executions, 55 condemned inmates have died from natural causes, 19 have committed suicide, six died from other causes.)