This was supposed to get posted on Monday.  So you get two Case Updates in a row; on Monday you’ll have another one.

I’ve harped about the penurious compensation for counsel appointed to represent indigent defendants here in Cuyahoga County, but we’re living in the lap of luxury compared to our counterparts in Alabama.  That state imposes few qualifications on training or experience of lawyers appointed to represent defendants facing the death penalty, and caps their fees at $1,000.  After conviction, a capital defendant is not entitled to any state-funded representation, unlike the situation in most other states.  Lawyers from various mega-firms, intent on burnishing their pro bono credentials, have stepped into the gap, and Cory Maples was the beneficiary of that:  two junior lawyers from the firm of Sullivan & Cromwell filed a petition for post-conviction relief, arguing that Maples’ trial lawyers were ineffective.

That claim was rejected, and the clerk sent the notice of the ruling off the S&C attorneys, and a copy to local counsel as well.  The latter did nothing, assuming that the big-city lawyers were taking care of it.  They weren’t; the lawyers had left the firm, without letting Maples know, or having the firm designate replacements.  The envelope to those lawyers was returned to the clerk, unopened.  He did nothing, either.  When the law firm finally caught up with the error, it tried to appeal the decision, but the time had run, and the Alabama courts refused to consider it.  The lawyers tried to take it into habeas, but the district and circuit court denied it, holding that Maples had defaulted on his state appeal without cause, precluding Federal review.

That somebody could wind up being executed over something like this is something Franz Kafka couldn’t have dreamed of, and seven of the nine justices on the US Supreme Court agreed last week in Maples v. Thomas.  Alito grudgingly:  he concurs on the basis that this was a “perfect storm” of misfortune for Maples, rather than emblematic of a system that compensates attorneys for the hundreds of hours of work that a capital case requires less than a garage charges to repair the average fender-bender.  Scalia and Thomas not at all:  to them, the “primacy” of the Alabama courts, and their right to make whatever damned rules they want, is more important than Maples’ chance of avoiding the gurney.

Down in Columbus, an important criminal decision in State v. Gould, although not nearly as important as it could have been.  Gould was a 4th Amendment case, and as I explained in my review of the oral argument, the big issue was the State’s contention that the Supreme Court’s decision in Herring v. US had ushered in a new era in search and seizure law:  a good faith exception applied to warrantless searches.  (The Court had created the good faith exception for searches conducted with a warrant in a 1984 case.)  As I also explained, this was pretty much bullshit, but the court skipped over the whole thing, deciding the case solely on the basis of existing law a defendant’s right to privacy in property he’s abandoned.  We’ll take a closer look at that next week.

Meantime, let’s take a look at what happened in the courts of appeals last week.

When can a prosecutor mention plea bargaining during trial?  Pretty much never, the 6th District concludes in State v. Hunter.  Hunter was charged with conveying drugs into a detention facility, and during closing argument his lawyer mentioned that Hunter wasn’t charged with possession.  That prompted the prosecutor to object and state that those charges “were discussions in plea negotiations suggested by the defense.”  That prompted the judge to declare a mistrial, and the 6th, after reviewing the pertinent law, affirms… In State v. Rucker, the 1st District holds that evidence of a child being beaten with a belt could be used to prove force or threat of force for a rape conviction, even though the beatings had taken place at times other than the sexual assaults, because they were relevant to demonstrating that the victim’s will had been overcome by fear or duress.  The court also holds that where the offenses were committed over a period of time, some before and some after the effective date of the Adam Walsh Act, classification under the AWA was permissible… In State v. Choice, the defendant was charged with disorderly conduct, and waived speedy trial.  Four months later, the prosecution added charges of aggravated menacing, stemming from the same incident.  The 2nd District holds that the waiver didn’t apply to the new charges, and that Choice’s counsel was ineffective for not raising the speedy trial issue…

Being questioned about an accident while sitting in a police car and filling out an accident form isn’t a “custodial interrogation” under Miranda, the 9th District holds in State v. Strehl.  To show how fact-specific these inquiries can be, the court emphasized that at the time of the questioning, the door to the cruiser was open, and the defendant had his feet on the ground… The Supreme Court’s decision in State v. Smith (discussed here), holding that a person has a right to privacy in the contents of his cellphone, and that police need a warrant before accessing its contents, does not apply to information from the telephone service provider as to when and what calls were made, says the 2nd District in State v. Neely…

My alibi witnesses, Johnny Walker and Jim Beam.  Most defense lawyers know that alibi defenses, unless backed up by hard documentation like pay stubs or hotel records, are pretty much worthless.  That’s especially true if the alibi witnesses are the defendant’s friends.  And that’s really true if the alibi is that the defendant was at a party with his friends and was passed out drunk, because, as the 3rd District recounts the testimony in State v. Shane, the friends shared “maybe eight forties, two cases of Milwaukee’s best, fifth of gin, fifth of vodka…”