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Form over substance

I have no idea whether Troy Davis was innocent.  He was convicted of murdering a police officer in 1989 and sentenced to death.  A wide range of advocates -- everyone from Desmond Tutu to Bob Barr -- persisted in contending that he'd been wrongly convicted, buttressed by claims that seven of the nine witnesses against Davis had persisted.  In 2009, the Supreme Court went to the unusual step of ordering the US. District Court to hold a hearing to determine whether new evidence "that could not have been obtained at the time of trial clearly establishes [Davis's] innocence."  The judge did, concluded that the claims of innocence were "largely smoke and mirrors," and, after numerous appeals and requests for clemency, Davis was executed on September 21.

I have no idea whether Amanda Knox is innocent.  Knox, while an exchange student in Italy, was convicted with her boyfriend of murdering her roommate.  Questions were raised with regard to the circumstances of her statement to the police and the collection of DNA evidence, however, and last Monday, in a second trial of the case, Knox and her boyfriend were acquitted.

Take a look at that last sentence.  That wasn't a second trial ordered by an appeals court after a reversal.  In Italy, the appeals process is a do-over:  you get a new trial, in front of a new set of jurors.  (Two judges, and six laymen.)  Think Troy Davis might have liked something like that?

Especially since, as in Knox's first case, in the "appeal" the prosecution had the burden of proving her guilt beyond a reasonable doubt.  Under our system, once a defendant has been convicted, the burden shifts to him to prove his innocence, usually by "clear and convincing evidence."  Essentially, our Bill of Rights represents a policy decision that we can have confidence in the outcome of a trial if that trial is fair -- the defendant is given notice of the charges against him, the assistance of counsel, the opportunity to cross-examine witnesses, bring in witnesses of his own, and a trial by jury at which the government cannot compel him to testify, and must prove his guilty beyond a reasonable doubt.  But if this results in a conviction, the inquiry is focused not on the outcome but on whether the trial was indeed fair; the procedure, not the result, is at issue.

Nowhere was that focus on form more on display than in the argument last week before the US Supreme Court in Maples v. Thomas.  Maples had been convicted in 1995 of two murders, and, by 10-2 vote (the minimum necessary in Alabama), the jury had sentenced him to death.  His appeals proved unsuccessful, so, as do capital defendants in virtually all cases, he turned to post-conviction relief, first in state court.  (You eventually get to federal court, through habeas, but because of limitations on the writ, you need to build a factual record in state court first.)

Good news and bad news.  The bad news was that, unlike almost all other states, Alabama does not provide appointed counsel for indigent death-row inmates in state post-conviction proceedings.  The good news is that a number of big law firms, eager to demonstrate their commitment to pro bono work, provide free counsel in those cases.  Two attorneys from the prestigious New York law firm of Sullivan & Cromwell signed up to do just that.  While there wasn't any question about Maples' guilt -- he'd made a written confession -- there was some question about whether his trial lawyers had adequately investigated and presented mitigating evidence about his mental problems and history of drug abuse, and so they filed a petition for post-conviction relief, arguing ineffective assistance of trial counsel.

In May of 2003, the state trial court rejected those claims, notifying the parties by mail.  Well, not the parties; the court sent the journal entry denying the petition to the attorneys in New York, and to the local counsel retained by them, but not to Maples himself.  The lawyers in New York had left the firm a year before, without notifying the court, and the firm's mailroom sent the unopened envelopes back to the court marked "return to sender."  The New York lawyers hadn't notified local counsel of their departure, either; he assumed that they'd gotten the court order, and did nothing. 

Maples first learned of all this three months later, well after the deadline for an appeal had passed.  His new lawyers sought leave to file a delayed appeal, but were denied.  They then turned to Federal court, filing a habeas petition alleging the same ineffective assistance claims.  The problem was that the new law Congress passed back in 1996 greatly limiting habeas requires that a defendant have exhausted his remedies in state court on each issue; if you don't raise it in state court, you've "defaulted."   The district court held that because Maples had missed the appeal deadline, the issue of ineffective assistance of his trial counsel had never been presented to the state courts, and thus Maples had defaulted on that issue, and the 11th Circuit affirmed.

So what happened when the Supreme Court sunk its teeth into this last Tuesday?  Well, a few of the Justices, Alito and Kennedy particularly, seemed pissed off that Alabama had put them in this position:  why couldn't it have just granted the delayed petition back when, and avoided the whole problem?  What problem, you say?  Certainly, no one in this country, let alone in Italy, would find fair a procedure where a defendant would not be able to get a court to hear the one claim that could keep him from being executed, simply because his lawyers had departed for greener pastures without notifying him or the court, and the law firm they worked sent back unopened the papers the court had addressed to them.

That's the issue on which the case turned, because if the lawyers hadn't left -- if they'd just screwed up and missed the deadline -- Maples would have been up the proverbial creek without the proverbial paddle.  Back in 1991, the Court held that simple negligence of post-conviction counsel, like missing a deadline, did not excuse default, unless the defendant was claiming actual innocence.  The court backpedaled from that a bit last year in Holland v. Florida, holding that in certain "extraordinary circumstances" the deadline for filing a habeas petition could be relaxed because of an attorney's misconduct, but that's a different situation:  whether a state should be compelled to extend its deadline involves issues of federalism that are absent in considering the issue of extending federal habeas guidelines.

The muddled state of the record didn't help matters:  it wasn't clear why local counsel didn't do anything, and another Sullivan & Cromwell lawyer had actually taken over the case -- albeit without notifying the court or, apparently, the firm's own mailroom -- so whether Maples had in fact been "abandoned" by counsel was disputed.  In the end, the Court seemed likely to craft a rule that was so specific and demanding that it might not apply to anyone besides Maples.  Breyer suggested one:

a rule that says, where in fact attorneys do abandon the client and the local attorney does as a matter of practice in the State do virtually nothing except to facilitate foreign representation, and where the State had cause to believe . . . that all that was true, then the State cannot assert this as an adequate ground [to assert default].

I wonder how you say that in Italian?

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