Indigent Defense

  • February 28, 2012

    by Jeremy Leaming

    The nation lost one of its leading advocates for the less fortunate and for equality with the death of Michael A. Rothenberg, longtime head of the New York Lawyers for the Public Interest (NYLPI).

    Rothenberg, who served as the executive director of NYLPI, was found dead at the age of 47 on Feb. 23. The cause of death was a fall from the roof of a building in Brooklyn. The Brooklyn Daily Eagle reports that the New York Police Department found his body on “a terrace at 100 Jay St., after he had apparently fallen from the roof.”

    The Daily Eagle noted that after graduating from the New York University Law School, he “became a litigator in the housing unit of Brooklyn Legal Services. He then won a fellowship at the Rockefeller Family Foundation, and subsequently worked on jury reform at the Vera Institute of Justice. He joined New York Lawyers for the Public Interest (NYLPI) as associate director in 1997.”

    He told the NYU Law Review, the Eagle reports, that his goal was “to create a center where lawyers and community organizers can come together to create lasting social change for people in communities in need.”

  • January 20, 2012
    Guest Post

    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.

  • October 4, 2011
    Guest Post

    By The Constitution Project’s Mary Schmid Mergler and Christopher Durocher. Schmid, senior counsel, and Dorucher, government affairs counsel, are the authors of an ACS Issue Brief released today, “The ‘Right-to-Counsel Term.’"


    Today, the Supreme Court is hearing argument in two cases related to the right to counsel, the first two in a collection of cases this fall that has earned the October 2011 Term the nickname “Right-to-Counsel Term.” Three other cases are slated for argument later this fall.  We examine these cases in greater depth in our new ACS Issue Brief.

    Martinez v. Ryan and Maples v. Allen kick-off the Right-to-Counsel Term by raising the question of what, if any, right to effective counsel a defendant can expect in post-conviction proceedings.  In Martinez, the Court will consider whether the right to counsel should extend to ineffective assistance of counsel claims in a first state habeas petition if the defendant was prohibited from raising such claims during his direct appeal (when the state is required to provide him with counsel).  In Maples, the Court is being asked to decide whether a habeas petitioner is entitled to an equitable exception to the Antiterrorism and Effective Death Penalty Act’s (AEDPA) procedural default rules when a defendant has been completely abandoned by counsel.  In both cases, the defendants have legitimate claims that they were prevented from raising on post-conviction appeal due to counsel’s errors.  And in both cases, fundamental fairness requires that these individuals, who will otherwise lose their right to challenge their convictions due solely to the errors or carelessness of their counsel, be permitted to raise those claims.