The StandDown Texas Project

Resentencing in Federal Death Penalty Case

"Death Penalty Sentence Overturned," is the title of the news release, via Business Wire.  It's datelined Chicago.

Almost 16 years after being sentenced to death following his conviction in a federal criminal case, Darryl Johnson was resentenced on Tuesday to life imprisonment.

U.S. District Court Judge Ruben Castillo remarked that the record of Johnson’s behavior over the past 16 years of incarceration shows that he is a changed man since his conviction and suggested the mandatory life sentence he was required to impose might well be too severe in light of Mr. Johnson’s demonstrated post-offense rehabilitation.

In 1997, Johnson was convicted of having been part of a large drug distribution conspiracy and having directed the murder of two gang members who he believed were cooperating with the government’s investigation of the Gangster Disciples street gang. Even though he was not the shooter, Johnson was sentenced to death for his involvement in those murders.

In December 2010, U.S. District Court Judge William Hibbler ruled that testimony at Johnson’s 1997 sentencing hearing from Bureau of Prisons Warden John Vanyur about Johnson’s supposed “future dangerousness” was false and misleading. Judge Hibbler concluded that had Warden Vanyur’s inaccurate testimony been corrected at the trial, Johnson would likely not have received the death penalty. Judge Hibbler vacated the death sentences and ordered a new sentencing for Johnson.

In fact, Johnson has been a model prisoner for the past 16 years. In an affidavit submitted by the government in response to a request by Judge Hibbler, a Bureau of Prisons Death Row Case Manager said that during his years in prison, Johnson has proven to be a well-adjusted, quiet and civil individual who has not caused problems for the prison staff. He has also maintained a close and loving relationship with his family throughout.

Terry Campbell, a partner at Cotsirilos, Tighe, Streicker, Poulos & Campbell who has represented Darryl Johnson since 1998, said, “In light of his record of conduct over the past 16 years, the government made the proper decision to not seek to re-impose the death penalty against Darryl Johnson, and I commend them for that decision. Darryl’s case is a lesson in how dangerous and unwise it is to allow juries to make irreversible, life-and-death decisions based on highly speculative guesswork – and in this case, entirely inaccurate guesswork – about what someone might do in the future.”

Felated posts are in the federal death penalty category index.

Justin Wolfe Moves Step Closer to Full Exoneration

"Va. won't appeal decision vacating death sentence," is Larry O'Dell's AP breaking news report, via the Richmond Times-Dispatch.

The Virginia attorney general's office said today it will not appeal a court's ruling exonerating a death row inmate convicted of hiring another man to kill his marijuana supplier.

Justin Michael Wolfe was sentenced to death for the 2001 slaying of Daniel Petrole Jr. in a case that exposed a multimillion-dollar drug ring run by young people barely out of high school in the affluent northern Virginia suburbs. A three-judge panel of the 4th U.S. Circuit Court of Appeals last month upheld a judge's decision vacating the 31-year-old's conviction and sentence because prosecutors withheld evidence that would have discredited their star witness -- the triggerman, who later recanted his testimony.

Attorney General Kenneth Cuccinelli's office did not oppose a ruling today finalizing the appellate court's decision.

"In our opinion, further litigation would not change the result," Cuccinelli spokeswoman Caroline Gibson wrote in an email to The Associated Press.

She referred further questions to the Prince William County prosecutor's office, which will determine whether to retry Wolfe. Commonwealth's Attorney Paul Ebert did not immediately respond to a voice mail message.

Technically, the attorney general's office still has until mid-November to appeal to the U.S. Supreme Court, but Wolfe's attorney was encouraged by the developments.

"We are optimistic this means the attorney general's office is not going to pursue further appeals, and the only question is whether the commonwealth's attorney is going to allow Justin to return home or retry him," attorney Ashley Parrish said.

He added that he will ask for Wolfe's release from prison "at the appropriate time."

And:

Wolfe would become the first wrongfully convicted inmate freed from Virginia's death row since DNA evidence cleared Earl Washington in 2000.

Wolfe was convicted largely based on the testimony of Owen Barber IV, who in 2005 recanted his story that Wolfe hired him to kill Petrole. After a four-day evidentiary hearing last year, U.S. District Judge Raymond A. Jackson found Barber's recantation credible and ruled that prosecutors improperly suppressed several pieces of evidence.

The appeals court zeroed in on one piece of withheld evidence: a report by a detective who flew to California to bring Barber back to Virginia. The report said the officer told Barber he might avoid the death penalty if he implicated Wolfe in the slaying. Barber later agreed to plead guilty to first-degree murder and testify against Wolfe in exchange for a life sentence.

Appeals Court Judge Robert King wrote that the report "is indubitably impeaching, in that it establishes a motive not only for Barber to implicate someone else, but to point the finger specifically at Wolfe."

Earlier coverage of Justin Wolfe's case begins at the link.

Related posts are in the prosecutorial misconduct category index.  The responsibility of the state to provide exculpatory evidence to the defense was articulated in the 1963 Supreme Court ruling in Brady v. Maryland; more via Oyez.

 

Additional Coverage of the Justin Wolfe Ruling

The Fourth Circuit ruling in Wolfe v. Clarke is available in Adobe .pdf format.

The updated AP report is, "Court Rules Condemned Virginia Man Should Be Exonerated," by Larry O'Dell.  It's via WRC-TV.

A Virginia man convicted of hiring someone to kill his marijuana supplier should be exonerated and freed from death row because prosecutors withheld evidence that would have discredited their key witness, a federal appeals court ruled Thursday.

The ruling by a three-judge panel of the 4th U.S. Circuit Court of Appeals affirmed a judge's ruling and moved Justin Michael Wolfe one step closer to possibly becoming the first wrongfully convicted inmate freed from Virginia's death row since DNA evidence cleared Earl Washington in 2000.

For now, though, Wolfe will remain in prison while the Virginia attorney general's office ponders its next move. The state could appeal the latest ruling to the full appeals court or the U.S. Supreme Court, walk away from the case and let Wolfe go free, or accept the panel's decision but retry the Prince William County man.

Brian Gottstein, a spokesman for the attorney general's office, said no decision has been made. The state has 14 days to ask for a rehearing before the full appeals court and three months to ask the U.S. Supreme Court to review the case.

"Federal appeals court refuses to reinstate death penalty for Justin Wolfe," is by Frank Green in the Richmond Times-Dispatch.

Last year, U.S. District Judge Raymond A. Jackson overturned Wolfe's convictions, finding among other things that prosecutors failed to provide exculpatory information to Wolfe's attorneys and allowed a key witness to give false testimony.

Jackson gave the state 120 days to retry Wolfe or release him, but that order was stayed when the Attorney General's Office appealed to the 4th Circuit Court of Appeals, leading to the 40-page ruling Thursday.

Wolfe, 31, was convicted in 2002 of hiring Owen Barber IV to kill Daniel Petrole Jr., Wolfe's marijuana supplier, and was sentenced to death. Wolfe also was convicted of a firearms charge and conspiracy to distribute marijuana.

Barber pleaded guilty to first-degree murder and was sentenced to life in prison. Barber was the star witness against Wolfe, but he later recanted his testimony and said that Wolfe did not hire him for the shooting.

In 2010, Barber testified before Jackson in federal court and again said his testimony in Wolfe's trial was false and that Wolfe had nothing to do with the slaying. Barber has also said he implicated Wolfe to avoid the death penalty.

In ruling Thursday, the appeals court cited critical evidence withheld by the prosecution, including a report from the police that an investigator told Barber he could avoid the death penalty by implicating Wolfe.

The appeals court noted, among other things, that the state complained that Wolfe was allowed to bring the newly disclosed report into his appeal.

"It is difficult to take seriously the commonwealth's protestations of ambush, when Wolfe had to labor for years from death row to obtain evidence that had been tenaciously concealed by the commonwealth, and that the prosecution obviously should have disclosed prior to Wolfe's capital murder trial," says the ruling.

"The … report is indubitably impeaching, in that it establishes a motive not only for Barber to implicate someone else, but to point the finger specifically at Wolfe," wrote the judges.

The judges further found that the state's suppression of the report was intentional.

Today's Washington Post reports, "Virginia death row inmate wins reprieve."  It's by Josh White.

Justin Michael Wolfe, condemned to death a decade ago in Prince William County for masterminding a drug-related murder, again won a reprieve Thursday when a federal appeals court upheld an earlier decision to vacate his conviction and sentence.

A three-judge panel of the U.S. Court of Appeals for the 4th Circuit ruled Thursday that Wolfe’s 2002 trial was tainted because Prince William prosecutors failed to turn over evidence that could have been used in his defense. Citing numerous examples, the court specifically pointed to a concealed police report that indicates a detective first suggested Wolfe’s involvement to the killer and told the killer that he might get the death penalty if he didn’t implicate Wolfe.

The court’s opinion called such evidence “crucial” and, like the federal district court before it, criticized Commonwealth’s Attorney Paul B. Ebert’s office for not turning over “Brady” material, or evidence that a defendant could use to prove his innocence. The court said the concealing of the detective’s report “undermines confidence in the fairness and propriety of the entire trial.”

“While we look no further than the [detective’s] report today, we do not condone the prosecution’s apparent suppression of other Brady material and the pattern of conduct that it reveals,” the court wrote, later referencing a similar warning the court issued in 2009 in the case of D.C. sniper John Allen Muhammad, urging prosecutors to err on the side of disclosure in cases for which the death penalty is a possibility. “We sincerely hope that the Commonwealth’s Attorney and his assistants have finally taken heed of those rebukes.”

Ebert said Thursday that he is “disappointed” in the decision but also that it wasn’t totally unexpected. The Virginia attorney general’s office must decide whether to seek a rehearing at the federal circuit level or to appeal the case to the U.S. Supreme Court.

But Ebert also said it appears clear that the 4th Circuit is sending a message that prosecutors should move in the direction of “open-file discovery” in capital cases, which would have prosecutors turn over everything they gather during their investigations. Ebert has said the practice could allow defendants to “fabricate” a defense based on irrelevant material, and the courts in turn have blasted him for not sharing everything.

"Appeals Court Affirms Vacation of Virginia Man’s Conviction, Death Sentence in Murder-For-Hire Case," is by Mark Hansen for ABA Journal.

U.S. District Judge Raymond Jackson threw out Wolfe's conviction last July, saying the prosecution's case against him was tenuous, at best. "A review of the trial proceedings unveiled witness testimony replete with hearsay and speculation," he wrote. "The physical evidence that did exist ... was circumstantial."

The prosecution also failed to disclose to the defense statements by Barber's roommate, Jason Coleman, who said Barber admitted to him that he murdered Patrole, and had acted alone, the judge said. "The substance and nature of the suppressed evidence reasonably undermines the court's confidence in this verdict," Jackson wrote.

In a statement Thursday, Wolfe's mother, Terri Steinberg said she was "grateful" to the courts for doing justice in Justin's case. "Justin is innocent. He has spent 11 years in prison for a crime he did not commit. It is time for the commonwealth to stop pursuing this wrongful conviction and for Justin to come home to his family," she said.

"King and Spalding Pro Bono Work Saves Man from Death Row," is the Layers & Settlement blog post on the pro bono work in the case.

An intense six year effort and 9000 hours of pro bono work by the firm of King and Spalding has overturned the capital murder conviction and death sentence for 29-year-old Justin Wolfe, a man whose trial the court ruled was rife with prosecutorial misconduct.

“We were thrilled about that and very excited to have Judge Jackson conduct such a thorough and careful review of the facts and find that the prosecution failed to turn over a lot of information that would have been extremely helpful in presenting a defense in the murder charge presented against Justin at trial,” says trial attorney Alan Dial from King and Spalding in Washington D.C.

And:

“As a lawyer, you want to make sure that the rules of engagement are set up so that the process is fair,” says Dial who previously worked as an assistant state prosecutor in Atlanta and San Diego, “particularly when you have someone who has been convicted of capital murder.”

“We believe in Justin’s innocence and wanted to dig into the facts of the case and show the court that there was more to it than what was presented at trial,” he adds.

Earlier coverage of Justin Wolfe's case begins at the link.  Related posts are in the prosecutorial misconduct category index.

The responsibility of the state to provide exculpatory evidence to the defense was articulated in the 1963 Supreme Court ruling in Brady v. Maryland; more via Oyez.

A View From the Trenches of Death Penalty Appeals

That's the title of Amanda Bronstad's report in the National Law Journal.

In May, Victor Stephens, who is black, pleaded guilty to charges stemming from the shooting of a white store owner. The plea, which came after he had been granted a new trial, brought a life sentence but removed him permanently from death row in Alabama, where he was first sentenced in 1987.

Stephens' attorney, J.S. "Chris" Christie Jr., is a partner at Bradley Arant Boult Cummings in Birmingham, Ala., and co-chairman of the firm's pro bono committee. According to Christie, Stephens was the third inmate the firm has gotten off death row since it began handling capital cases in 1988. Christie talked to The National Law Journal about Bradley Arant's death penalty work, for which the firm will receive an exceptional service award from the American Bar Association's death penalty project next month.

And:

NLJ: The firm has represented 19 people on death row in Alabama so far. How does that compare to the total number of people on death row in the state?

C.C.: Alabama has about 200 people on death row. The number changes. For example, Victor Stephens was taken off in May 2012, but two people were added. The exact number was 201, so about 11 percent of the people on death row.

NLJ: Of those 19 cases, one person was executed and two died in prison. Stephens is one of three people the firm has successfully gotten removed from death row. Talk about that case.

C.C.: This is something I worked on from 1993 to 2012. Victor Stephens in 1986 was part of robbing a convenience store. The store owner shot him and, while the store owner was reloading his gun, Victor Stephens shot the store owner with a .25-caliber pistol that he had. Victor Stephens confessed to shooting the store owner with a .25 pistol after being shot with a shot gun.

At his trial in 1987, he was convicted of capital murder. That night, they held a sentencing hearing. The jury recommended life without parole. The judge held the final sentencing until after he'd been nominated to the Court of Criminal Appeals and before the general election that fall, and sentenced Victor Stephens to death, overriding the jury's finding that he should be sentenced to life without parole. That went up through the normal appellate process and post conviction proceedings started — and that's when I got involved, in 1993.

NLJ: What was the legal argument that got him off death row?

C.C.: The argument on which he actually was awarded a new trial was on the jury selection. The prosecution used 21 of its 22 regular strikes, and its first 21 strikes were to remove blacks from the jury. His counsel made a timely objection, and the state offered what appeared to be race-neutral reasons for strikes of 21 blacks.

 Related posts are in the ABA and pro bono category indexes.

More on Kerry Max Cook

The Southwest edition of the New York Times carries, "Released but Never Exonerated, a Man Fights for Freedom," by Michael Hall.  It's also posted at the Texas Tribune, which partners with the Times for expanded Texas coverage.  Here's an extended excerpt:

A couple of Fridays ago, Kerry Max Cook, who was released from Texas’ death row in 1997 after two decades, went to pick up his 11-year-old son, Kerry Justice, from his North Dallas school. Class was just letting out. As Mr. Cook approached a group of children and their parents, a little girl squirmed out of her mother’s arms and ran toward him. “Mr. Kerry!” she called. He laughed as she jumped into his arms. “Haleigh!” he shouted, and began tickling her. “She adores Mr. Kerry,” her mother said.

The same jolly scene followed Mr. Cook as he walked around the small campus — children calling out to him, laughing, jumping into his arms. Vicki Johnston, the school’s director, looked on, smiling. “Kerry’s such a big part of the school,” she said. “He’s like a pied piper to the kids.” Asked about his past, Ms. Johnston simply said: “We know him. We know what kind of man he is.”

Unfortunately for Mr. Cook, 15 years after his release, the State of Texas still does not share Ms. Johnston’s view. Though he is widely recognized as one of the country’s most famous exonerated prisoners, Mr. Cook is not legally exonerated. In fact, in the eyes of the state, he is still a killer — convicted of the 1977 rape and murder of Linda Jo Edwards.

Mr. Cook’s situation is complex. His death sentence was twice overturned by higher courts, and DNA taken from the victim’s underwear did not match his own, and the evidence used to convict him has been shown to be entirely fallacious — but because Mr. Cook pleaded no-contest to the murder on the eve of what would have been his fourth trial, he cannot be declared actually not guilty.

Nevertheless, Mr. Cook has become a high-profile spokesman for the wrongfully imprisoned. He has published a book about his experience and has been one of the subjects of a popular Off Broadway play, “The Exonerated,” which was later made into a film. He has given speeches all over the United States and Europe. His Facebook page contains pictures of Mr. Cook with actors like Robin Williams, Richard Dreyfuss and Ben Stiller, who have been drawn to his story.

Yet Mr. Cook lives in the shadows with his wife and their son, knowing that whenever he applies for a job or gets on an international flight, he will be identified as a convicted murderer. Now he hopes to change that, with two motions filed recently in Smith County, where the case was originally heard, that could finally clear his name.

And:

In 2009 Mr. Cook met Marc McPeak, a civil lawyer — with Greenberg Traurig in Dallas — who had read his book. Mr. McPeak’s firm began devising a legal strategy, pro bono, to navigate the difficult road of getting Mr. Cook an official exoneration. The first step was to get DNA testing on other items from the crime scene, including a hair found on Ms. Edwards’s body.

On Feb. 28, Mr. McPeak filed two motions in Smith County, one for the DNA testing and the other to recuse the judge who would decide whether to allow the testing — Mr. Skeen, the former district attorney. “We want it heard outside of Smith County,” Mr. McPeak said. “Not once in 35 years have officials there shown either the desire or the ability to treat Kerry fairly.”

They hope that further DNA evidence excluding Mr. Cook will help them to file a writ of habeas corpus to have him declared actually innocent.

Earlier coverage of Kerry Max Cook's effort to fully clear his name begins at the link.  As I always point out, Texas Montly journalist Michael Hall and I are not related.

Kerry Max Cook's 2007 book is Chasing Justice.

Alabama Roundup

Today's Birmingham News carries the editorial, "U.S. Supreme Court sends much-needed message to Alabama about how it treates poor defendants charged with capital crimes."

The U.S. Supreme Court sent the state of Alabama at least two messages last week when justices ruled against the state in the case of Death Row inmate Cory Maples, who missed a deadline to appeal after his lawyers dropped his case without telling him.

First, the high court made clear the state and courts were wrong in denying Maples his day in court. Maples missed a 42-day window to file an appeal after a state court judge ruled against his claims of ineffectiveness of counsel and other problems at trial. But the missed filing was through no fault of his own. Two pro bono lawyers had abandoned Maples' case without notifying him or the state. Copies of the trial court's order sent to them at their old law firm were returned unopened to the court clerk, who did nothing.

"Abandoned by counsel, Maples was left unrepresented at a critical time for his state postconviction petition, and he lacked a clue of any need to protect himself pro se," the court said in its 7-2 ruling. "In these circumstances, no just system would lay the default at Maples' death-cell door."

But Alabama's system did blame Maples. Which brings us to the court's second, and more important message: Our state's system of capital punishment is not a just system.

Justice Ruth Bader Ginsburg, who delivered the opinion, made that clear in her criticism of how the state provides -- and in some cases doesn't provide -- lawyers for poor defendants charged with capital crimes.

Among the problems she cited: Alabama requires that a lawyer appointed to defend a death-penalty case only be a member of the state bar and have five years' experience practicing criminal law; no experience with capital cases is required; the state doesn't provide, or require, professional education or training in capital cases; appointed lawyers are underpaid; and Alabama is "nearly alone among the states" in not guaranteeing that poor Death Row inmates have legal representation in postconviction proceedings -- those state and federal appeals after the initial round of "direct" appeals.

The opinion in Maples v. Thomas is available in Adobe .pdf format.  Earlier coverage of the Supreme Court ruling in the Alabama case begins at the link.

"Dothan man to be sentenced for third time in slayings," is the title of a report in the Dothan Eagle written by Matt Elofson.

Lawyers expect to select a jury Monday for the third time to sentence a Dothan man for the slaying of three people.

Attorney David Hogg said his client, 40-year-old Jerry Jerome Smith, had his first two sentences reversed.

And:

The death sentence was reversed because of comments made by some of the relatives of victims in the murders during the jury selection of the trial.

Additional Coverage of Maples v. Thomas - Updated

"Supreme Court grants death row inmate chance for new appeal," by David G. Savage in the Los Angeles Times.

The Supreme Court, citing a "perfect storm" of missing lawyers and unopened letters, gave an Alabama death row inmate a new chance to appeal his conviction in a case that sharply split the conservatives on the bench.

Corey Maples had been "abandoned" by his two New York lawyers who left their law firm without telling him and missed the deadline for filing his appeal. "In these circumstances, no just system would lay the default at Maples' death-cell door," Justice Ruth Bader Ginsburg wrote for a 7-2 majority.

It was the second time in two weeks the high court rebuked prosecutors and judges from the South in a case of justice gone wrong. In both cases, Chief JusticeJohn G. Roberts Jr.and JusticeSamuel A. Alito Jr.sided with the majority in ruling for the defendant.

And:

Virginia Sloan, president of the Constitution Project, a bipartisan legal reform group, praised the ruling for putting "justice over technicalities and fundamental fairness over procedural rules."

Death penalty foes have pointed to Alabama as having a "broken" system of capital punishment. Its trial lawyers are poorly paid and often are newcomers to capital cases. No state funding is provided for appeals. Most defendants must rely on out-of-state law firms that volunteer to represent them.

CNN posts, "Justices rule for death row inmate after legal mistakes," by Bill Mears.

This high court victory for Maples does not mean he will eventually receive the new trial he is seeking. Because so much of the facts and testimony of the various parties remains in question -- particularly the actions of the county clerk and the in-state attorney for Maples -- lower state and federal courts could be wrestling with this case for years.

I have to also point readers to Jeff Gamso's post, "Unfair & Unconscionable: The Capital Jurisprudence of Antonin Scalia," at his Gamso - For the Defense blog.

He'll get a chance because his lawyers abandoned him.  So said 7 of 9.  Ginsburg wrote the opinion.  Alito (no pushover he) joined but wrote also his own concurrence to point out that it was the lawyers who were at fault and not the deeply flawed Alabama system of providing (or not providing) capital representation. 

Scalia dissented.  Joined by Clarence Thomas, Scalia explained that really, he was abandoned by only some of his lawyers.  And sure it's all unfair but then if we demanded fairness of our criminal justice system it would be the end of the republic.

OK, he didn't actually say that.  What he said was this.

Gamso's blog is one of the left-column Essential Law Blogs.  Visit it for more of his takes on criminal justice.

Coverage of yesterday's Supreme Court ruling is at the link.  The opinion in Maples v. Thomas is available in Adobe .pdf format.

Supreme Court Rules in Favor of Alabama Death Row Inmate

The Supreme Court. ruling in Maples v. Thomas is available in Adobe .pdf format.

"New hearing for death row inmate in mail mix-up" by Mark Sherman for AP.

The Supreme Court on Wednesday ordered a new hearing for an Alabama death row inmate who missed a deadline to appeal when court notices to his lawyers at a big firm in New York were returned unopened.

The court voted 7-2 Wednesday to reverse a federal appeals court ruling that cut off appeals for Cory Maples.

Justice Ruth Bader Ginsburg said in her opinion for the court that Maples had been abandoned by his lawyers at the Sullivan and Cromwell firm when they left for new jobs and neglected to tell the local court or their client.

"Through no fault of his own, Maples, an inmate on death row, was left unrepresented at a critical time," Ginsburg said.

Justices Antonin Scalia and Clarence Thomas dissented. Scalia said the court should have stuck with its usual practice of holding defendants responsible for their lawyers' mistakes. "One suspects that today's decision is motivated in large part by an understandable sense of frustration" with Alabama's refusal to waive its deadlines in this case, Scalia said in an opinion joined by Thomas.

But Justice Samuel Alito, who often votes against criminal defendants, said in a separate opinion that Maples' circumstances were unique. "What occurred here was not a predictable consequence of the Alabama system, but a veritable perfect storm of misfortune," Alito said

And:

Wednesday's decision means a court will hear Maples' claims that his inexperienced, poorly paid trial lawyers did such a bad job on his behalf that their work violated the Constitution's guarantee of representation for criminal defendants.

"Alabama Inmate Must Be Given Second Chance After Mailroom Mix-Up, Justices Rule," is Adam Liptak's New York Times report.

“Maples was disarmed by extraordinary circumstances quite beyond his control,” Justice Ginsburg wrote.

In a concurrence, Justice Samuel A. Alito Jr. described what had happened to Mr. Maples as “a veritable perfect storm of misfortune,” starting with the oddity that much of it was attributable to lawyers from “one of the country’s most prestigious and expensive” law firms.

“I have little doubt that the vast majority of criminal defendants would think that they had won the lottery if they were given the opportunity to be represented by attorneys from such a firm,” he added.

Yet two lawyers from Sullivan & Cromwell failed to inform Mr. Maples when they left the firm. Nor did they tell the court from which they were awaiting a ruling in his case. When two copies of that ruling were sent to the firm, it returned them unopened.

Justice Ginsburg’s opinion included a critique of Alabama’s capital justice system. At the time of Mr. Maples’s trial, court-appointed lawyers in capital cases were paid $40 an hour for time in court and $20 an hour otherwise, with a $1,000 cap on out-of-court work.

Mr. Maples was convicted of murdering two companions after a night of drinking. “His inexperienced and underfunded attorneys,” Justice Ginsburg wrote, “failed to develop and raise an obvious intoxication defense, did not object to several egregious instances of prosecutorial misconduct and woefully underprepared for the penalty phase of his trial.”

At one point the lawyers apologized to the jury, saying that they “may appear to be stumbling around in the dark.” Even so, the jury’s vote recommending the death penalty was 10 to 2, the minimum required under Alabama law.

Justice Ginsburg was also critical of how Alabama handles challenges to convictions. Alabama is nearly alone among the states, she wrote, in that it “does not guarantee representation to indigent capital defendants in post-conviction proceedings.” Instead, the state relies on volunteer lawyers from public interest law firms and from the pro bono practices of major firms like Sullivan & Cromwell.

"U.S. Supreme Court Sides With Death-Row Inmate on Law Firm Mailroom Error," by Greg Stohr for Bloomberg News.

The U.S. Supreme Court revived an appeal from an Alabama death-row inmate who missed a legal filing deadline because of a mailroom error at the law firm that was representing him.

The justices, voting 7-2 today to reverse a lower court, said Cory R. Maples was entitled to another chance to challenge his death sentence for killing two friends in 1995.

“Maples was disarmed by extraordinary circumstances quite beyond his control,” Justice Ruth Bader Ginsburg wrote for the majority.

The ruling is a victory for criminal defendants at a court that in other cases has been reluctant to excuse missed deadlines. In 2007, the justices threw out an appeal by a convicted murderer who missed a filing deadline because of a judge’s error.

Maples had been represented without charge by two lawyers at New York’s Sullivan & Cromwell LLP in his 2001 bid to overturn his conviction. By the time an Alabama judge ruled against Maples in 2003, both lawyers had left the firm.

When the clerk’s office for the Alabama court mailed the judge’s order to the two lawyers, both envelopes were returned. One was stamped, “Returned to Sender -- Attempted, Unknown,” and the other had a similar stamp along with “Return to Sender -- Left Firm” written by hand.

The clerk’s office didn’t take any additional steps to contact the lawyers, and Maples himself didn’t learn about the order until a month after the appeal deadline had passed.

“Had counsel of record or the state’s attorney informed Maples of his plight before the time to appeal ran out, he could have filed a notice of appeal himself or enlisted the aid of new volunteer attorneys,” Ginsburg wrote.

"U.S. Supreme Court rules in favor of Alabama Death Row inmate Cory Maples," is by Mary Orndorff at the Birmingham News.

The case is now sent back for further proceedings. Maples wants a federal court to consider whether errors during his 1995 trial and sentencing might have kept the jury from voting 10-2 for the death penalty. Maples was convicted in the 1995 shooting deaths of two acquaintances as they sat in a car in his driveway late at night after he had been drinking.

Earlier coverage of Maples v. Thomas begins at the link.

Post-Conviction Access to Forensics in Illinois

The National Law Journal reports, "This win required a trip to the Legislature."  It's written by Lisa Holton.  Here's an extended excerpt:

As of late December, Patrick Pursley, an Illinois inmate found guilty of first-degree murder in a 1993 attempted robbery and sentenced to life in prison, was waiting for results of a post-conviction ballistics test result that could exonerate him.

So were Jenner & Block attorneys Andrew Vail, Robert Stauffer and Kyle Palazzolo and staff members of Northwestern University School of Law's Center on Wrongful Convictions.

All helped Pursley in his 14-year effort to get the state to retest the ballistics evidence — an uphill battle that included multiple appeals despite Pursley's successful petition to the Illinois Legislature to write post-conviction ballistics testing into the state's existing law.

The effort paid off in a big way on Jan. 26, 2011, when the Jenner team convinced the Illinois 2d District Court of Appeals to overrule a lower court and order post-conviction ballistics testing in Pursley's case. The court cited the possibility that the testing could provide new, material evidence relevant to Pursley's claim of actual innocence. It marked a precedent: the first time post-conviction ballistics testing would actually be performed under Illinois state law.

Vail, who started the case while an associate and is now a partner working in commercial, antitrust and Employee Retirement Income Security Act litigation, said Pursley was a model defendant who had worked tirelessly on his own behalf. "The case came to us through [the Northwesten center], and we first took it on because of Patrick himself," he said. "His story is so powerful, and he's done good things in and around the prison, and he's worked very hard on his case. The second thing was that this was going to be a case of first impression under the post-conviction ballistics statute, which could set a major precedent for other inmates."

Pursley had been in court for years, filing three separate pro se motions — each denied by the trial court — and three subsequent visits to the appellate court — which affirmed those denials.

Success came only after lobbying efforts on Pursley's behalf persuaded the Illinois Legislature to change the state's post-conviction evidence testing laws in 2007 to allow ballistics testing. After that, Jenner and the center assisted with Pursley's fourth pro se motion. Notwithstanding the new law, the trial court again rejected the petition, only to be overruled — finally — by the appeals court. Now, Pursley's evidence is back in the state's crime lab being tested with technology that's presumably more advanced than was available at the time of Pursley's conviction.

Related posts are in the forensics, post-conviction review, and pro bono indexes.

Jim Dunnam on the Michael Morton Exoneration

"Another innocent man freed from a Texas jail," is the title of Jim Dunnam's OpEd in the Houston Chronicle.  Dunnam is a former state representative from Waco.  He's now a senior fellow at the Texas First Foundation.

In 1986 the Space Shuttle Challenger blew up shortly after launch. Lady Gaga was born and the forensic use of DNA technology in criminal courtrooms began. 1986 is also the year Christine Morton was murdered. Christine's husband, Michael Morton, was convicted of that murder and sent to prison for life. Twenty-five years have passed.

This year brought us the final Space Shuttle mission and Lady Gaga at the top of the charts. Since 1986, the science and accuracy of DNA testing has progressed to incredible levels, and this month DNA testing exonerated Michael Morton.

The prosecutors claimed Michael Morton was a sex-crazed lunatic who beat his wife to death one morning before work. Michael maintained his innocence, insisting his wife was alive when he left that morning.

The jury that convicted Michael was never shown a blood-stained bandana found behind the Morton home. The jury never learned that Morton's 3-year-old son witnessed the assault on his mom, had described the murderer and said that his father was not home at the time. The jury also was not told that Christine Morton's purse had been stolen from the house, or that her credit card and a check were later used by someone other than Michael. Instead, prosecutors misled the jury, arguing that since nothing was stolen there was no evidence to support Michael's claim of a burglar. The prosecutors also withheld this evidence from Michael's lawyers, even though required by law to turn it over.

The new evidence was ultimately discovered in the prosecutor's files years later by pro bono lawyers representing Morton. In 2006, these new lawyers asked that the bandana be tested using the latest DNA test methods. John Bradley, the Williamson County district attorney, refused the request and successfully won a hearing to prevent it. Five years passed.

And:

In the 11 years surrounding 1986, 51 people were executed in Texas. The 234 executions presided over by Perry in his 11 years as governor now serve as an applause line during Republican presidential debates. Currently, Texas houses 8,500 inmates serving life sentences, and Texas will spend more than $3 billion this year on criminal justice. Forgetting for a moment the real loss of 25 years for Michael Morton, it cost Texans more than $400,000 to incarcerate him all this time. Meanwhile, the real murderer walked through America committing more crimes and another murder. Shouldn't we use all the tools science has to offer and a little of that money to assure we've got the right man?

Earlier coverage of Michael Morton's exoneration begins at the link.

Editorials on Maples v. Thomas

"Justice for Cory Maples," is the title of an editorial in today's Los Angeles Times.

When even conservative Supreme Court justices express sympathy for a death row inmate, it's a good bet that a miscarriage of justice has occurred. That's the case with Cory Maples, a convicted murderer from Alabama, who missed a deadline for an appeal because a notice sent to his two lawyers was sent back marked "return to sender." At oral arguments this week, Justice Samuel A. Alito Jr. asked the lawyer for the state of Alabama: "Mr. Maples has lost his right to appeal through no fault of his own through a series of very unusual and unfortunate circumstances.... Why push this technical argument?"

And:

Maples' story is a particularly egregious example of injustice by a state, and perhaps he will finally find relief. But vast numbers of questionable decisions involving convicted murderers never make it to the Supreme Court. That is because the court's primary objective in selecting cases for review is not the redress of individual grievances but the shaping of the law in general. (The justices do typically get involved when an execution is imminent, but that is no consolation for inmates who are kept on death row, ineligible for lighter punishment, because of official errors.)

It is unreasonable to expect the Supreme Court to address every injustice experienced by death row inmates. The surer way to eliminate those errors is to abolish capital punishment. Although the conventional wisdom is that repeal is politically unpopular, New Jersey abolished the death penalty in 2007 and Illinois followed suit this year. California should join them. According to a new Field Poll, although 68% of Californians want the death penalty to remain on the books, 48% say they would prefer that someone convicted of first-degree murder be sentenced to life without parole, compared with 40% who would choose execution.

The Toledo Blade carries the editorial, "Death by mail room?"

Mr. Maples would not normally be a sympathetic defendant. He has confessed to shooting two companions in Alabama in 1995 after a night of drinking.

Yet the affront to legal process was such that Justice Samuel Alito, Jr., usually a reliable vote for prosecutors in death penalty cases, called the facts here "a series of very unfortunate circumstances." He practically rebuked Alabama state Solicitor John Neiman, Jr., for pushing "this technical argument."

Indeed, Mr. Maples found sympathy across ideological lines, except for Justice Antonin Scalia. He took Alabama's side, making clear once again that he is less for the big picture of justice and more for guarding every jot and twitter of the law.

Justice is blind, it is said, but even on an ideologically divided court apparently not so blind in the face of appalling unfairness to remind most on the bench what business they are really in.

Earlier coverage of Maples v. Thomas, with links to all briefing and a transcript of the oral argument, begins at the link,

More on Maples v. Thomas

A reminder that SCOTUSblog has started a new Community feature for discussion on cases.  Today's topic is Maples v. Thomas, and the discussion is live right now.  The conversation already has several threads.  Click the link to participate.  Follow this link for more information on registering and participating at SCOTUSblog Community.

Today's New York Times carries the editorial, "A Dreadful Missed Deadline."

Alabama is a step from executing Cory Maples for a reason so grievously wrong that the case argued Tuesday at the Supreme Court should leave no doubt why the death penalty should be abolished. Besides being barbaric, case after case is rife with constitutional defects.

Mr. Maples was convicted of capital murder because he had incompetent trial lawyers, who admitted that they were “stumbling around in the dark.” He was then wrongly denied the chance to even raise the claim of ineffectiveness of counsel on appeal because of a missed court deadline — for which he was utterly blameless.

And:

A former chief justice of the Alabama Supreme Court and other state bar leaders wrote in a brief, “Alabama’s capital punishment system is broken.” It would be grotesquely unjust for Mr. Maples to bear the consequences for the mistake that embodies this breakdown. The justices must order the federal review he seeks.

"Appeal chance lost in mailroom," is the Montgomery Advertiser editorial.

In a very real sense, Maples' right to appeal his death sentence was lost because of a mailroom mixup and the indifference of someone in a court clerk's office. Maples is not asking that he be released from prison.

Again, Maples is not a very sympathetic figure. And it is unlikely that he would prevail even if his appeal goes forward.

But the U.S. Supreme Court should side with Maples anyway and give him a new chance at an appeal, because even a tiny chance to avoid the death penalty should not be lost because of a mailroom mixup or a court clerk who couldn't be bothered to follow up on a returned notice.

In the end, this is as much about protecting the integrity and the credibility of the justice system as it is about Maples.

Earlier coverage of the oral argument in Maples v. Thomas begins at the link.

Transcript & Coverage of Maples v. Thomas

The oral argument transcript in Maples v. Thomas is available in Adobe .pdf format.

SCOTUSblog has started a new Community feature for discussion on cases.  Tomorrow's discussion will be Maples v. Thomas, and the discussion will go live at 9:00 am EDT/ 8:00 am CDT.  Click the link to participate.  Follow this link for more information on registering and participating at SCOTUSblog Community.

The AP report is "A Case Of Returned Mail And An Execution Appeal," by Mark Sherman.  It's via NPR.

The tale of returned mail and a missed deadline might seem comical if it did not involve a man trying to stave off execution. Supreme Court justices had harsh words Tuesday for lawyers who abandon their clients and a state legal system that does not seem overly concerned.

At the end of a lively hour of arguments, it appeared the court would order a new hearing for Alabama death row inmate Cory Maples, who had lost the chance to appeal his death sentence because of a mailroom mix-up at the New York law firm Sullivan and Cromwell and the diffidence of a local court clerk.

Two Sullivan and Cromwell lawyers had been pressing Maples' claim that his earlier legal representation was so bad that it violated the Constitution — until they both left the firm without telling him or the Alabama courts.

Deadlines usually matter a lot at the Supreme Court, where a few years back a defendant who was late to file an appeal because the judge gave his lawyer the wrong date still lost his case. Another principle the court often holds dear is that it's tough luck for defendants whose lawyers make mistakes.

But Tuesday's case, perhaps because it involves the death penalty, was the rare instance when the court seemed prepared to grant some leeway on both counts.

Justice Samuel Alito is a former federal prosecutor who often votes for the government in criminal cases. But he said he did not understand why Alabama fought so hard to deny Maples the right to appeal when the deadline passed "though no fault of his own, through a series of very unusual and unfortunate circumstances."

Dahlia Lithwick posts, "Dead Letter Office: The case that has even Antonin Scalia wondering what to do about incompetent lawyers in death penalty cases," at Slate.

Cory R. Maples is facing execution because his lawyers got lost in the mail. At oral argument in his case this morning, Justice Antonin Scalia found himself all alone in thinking that was OK. Yet it is Scalia who notes, toward the end of the hourlong session, that there are never any consequences when defense lawyers screw up a capital case. “Does anything happen to the counsel who have been inadequate in a capital case?” Scalia asks Alabama Solicitor General John Neiman. “Other than getting another capital case?”

Hard to imagine a more damning indictment of the American capital justice system than that.

And:

Alabama is the only state that doesn't grant taxpayer-funded legal assistance to death-row inmates seeking to challenge what happened at trial. So for his appeal, Maples had local counsel acting in name only, while he was represented for free by a pair of second-year associates at the fabulous New York law firm of Sullivan and Cromwell. For 18 months nothing happened with his appeal, during which period his young lawyers left their firm without notifying Maples or the court. They did tell the mailroom. So when the Alabama court sent a ruling to his two lawyers indicating that his appeal had been denied, the mailroom stamped it “Return to Sender” and sent it back to Alabama. The county clerk stuck it in a file and Maples—who knew nothing of any of this—missed the 42-day deadline for filing another appeal. Maples’ local counsel, John Butler Jr., also received a copy of the ruling, but because he believed he was Maples’ lawyer in name only, he did nothing with it.

So Maples thought he had three lawyers when in fact he had none. He missed his filing deadline.

Reviewing courts all rejected Maples’ request for an extension in the filing deadline. The 11^th Circuit Court of Appeals wrote that “any and all fault here lies with Maples for not filing a timely notice of appeal.” The Supreme Court itself has not had a lot of patience for missed deadlines of late.

But the question before the court today is whether Maples’ missed filing deadline can be excused if he himself was blameless, and the government’s actions were a contributing factor. The majority of the court is flummoxed at Alabama’s decision to deny a man the right to appeal when he missed a deadline—quoting Justice Samuel Alito—"through no fault of his own, through a series of very unusual and unfortunate circumstances.”

George W. Bush’s former solicitor general, Gregory G. Garre, represents Maples, and immediately Scalia attacks him for claiming that local counsel wasn’t the attorney of record in this case: “You want us to believe the local attorney had no responsibility for the case at all? … Even if local counsel was just a functionary, surely his functions would include forwarding a notice?”

"High court mulls Ala. death row challenge of missed deadline," by Joan Biskupic for , USA Today.

Alabama Solicitor General John Neiman told the justices Tuesday that nothing in federal law requires waiving the appeals deadline. He stressed in his written brief that Maples is "unquestionably guilty of murdering two people."

Garre agreed that the question at the heart of Maples' challenge was "not who shot the victim" but rather, "whether Mr. Maples was going to be convicted for capital murder or murder that would result in life imprisonment."

Neiman contended that it was sufficient that a court clerk's notices reached the local lawyer, and Neiman described that lawyer's role as "more meaningful" than Garre had presented.

When Chief Justice John Roberts pressed him on that, Neiman had no answer and said, in a tense moment in the courtroom, that he would withdraw the assertion.

Plainly frustrated with the state's overall position, Roberts wondered why an official wouldn't have known "there was a problem" after nothing was heard back from Maples' attorneys.

Justice Anthony Kennedy added, "It's pretty clear that they didn't get the mail … because it's sent back."

Only Justice Antonin Scalia seemed ready to side with Alabama. He suggested letters to the local counsel were enough and that that attorney "simply goofed in not advising" lawyers at Sullivan and Cromwell about the deadline.

"Justices weigh whether inmate should die after mailroom slipup," by Bill Mears at CNN.

By the time the mix-up was discovered, apparently thanks to inquiries by the inmate's mother, Maples' window for appeals had run out.

The local judge was not sympathetic, saying the county clerk was not required to follow up or investigate why the key documents were sent back without acknowledgment.

"How can a circuit court clerk in Decatur, Alabama, know what is going on in a law firm in New York, N.Y.?" Morgan County Circuit Judge Glenn Thompson asked in his ruling.

Subsequent state and federal courts also refused to grant Maples another chance to file his appeals, saying the 42-day deadline was standard and non-negotiable.

During arguments Tuesday, the questions came down to who shouldered most of the blame: the county clerk or Maples' lawyers? Justice Antonin Scalia was particularly animated, speaking 50 times in the 60-minute argument, and favoring the state's position. He said it was the obligation of the local attorney to ensure his out-of-state colleagues had all the paperwork.

"He failed to check with the New York lawyers who were working with him," Scalia said. "Why is the state responsible for that?"

But a majority of his colleagues questioned the Alabama solicitor general's position.

"Supreme Court: Death Row Inmate Says Lawyers From Elite Firm Abandoned Him," by Ariane de Vogue for ABC News.

Reuters posts, "Court hears death row inmate missed deadline case," by James Vicini.

Today's Birmingham News carries the editorial, "The U.S. Supreme Court shouldn't allow an Alabama Death Row inmate."

Does the U.S. Supreme Court value life, albeit a deeply flawed one, as much as it does a piece of property?

That, in a manner of speaking, is at the crux of a case involving a Death Row inmate from Alabama that the high court will hear today.

And:

State lawyers are perfectly fine with Maples not receiving federal review of his claims, which is perfectly wrong.

Without doubt, the death penalty appeals process is long and arduous for everyone involved, especially victims' families. But the point to the process is to make sure the state gets it right -- not only ensuring that a person convicted of capital murder is actually guilty, was adequately represented and received a fair trial, but also that he was properly sentenced to death.

In Maples' case, the main question is whether his court-appointed attorneys were competent. Barre argues Maples' trial and sentencing were "tainted by gross ineffectiveness" of his lawyers, who admitted they were "stumbling around in the dark" because of their lack of experience with capital cases. They failed to investigate Maples' abusive childhood, his mental health and history of depression and suicide attempts, and alcohol and substance abuse, which could have affected the jury's decision on recommending death instead of life without parole. (The vote was 10-2, the minimum number needed, in favor of death.)

The state would have Maples do without federal review of his trial lawyers' competence because, through no fault of his own, he missed a filing deadline.

The bipartisan Constitution Project and the libertarian Cato Institute, neither of which have positions for or against the death penalty, filed a brief siding with Maples.

"This case measures our courts' basic commitment to correct what a reasonable observer would readily perceive as a miscarriage of justice," their brief said.

That sounds right to us. We'll see soon enough how many reasonable observers sit on the U.S. Supreme Court.

Earlier coverage of Maples v. Thomas begins at the link.  The SCOTUSblog case file for Maples v. Thomas contains all briefing.

Maples v. Thomas

On the second day of its 2011 term, the Supreme Court will hear oral arguments in Maples v. Thomas, an Alabama death penalty case.  The SCOTUSblog case file contains all briefing.

The Washington Post preview is, "Supreme Court confronts case of death row inmate whose lawyers quit his case," by Robert Barnes.

Cory R. Maples was not surprised the day he heard that a court had rejected his challenge to his death sentence. “Down here, they’re pretty serious about it,” he said in a phone call from Alabama’s death row.

But the other news left him in “a state of shock”: the two lawyers from the prestigious New York law firm who had agreed to represent him had quit, quite some time before, without so much as a goodbye.

A clerk attempted to notify the lawyers of the court’s action, but the letters were returned unopened; Maples discovered that he had missed the deadline for appealing to the next level.

“I hate to use the word ‘abandonment,’ but that’s the closest I can get to it,” Maples said. “I’m supposed to have these two lawyers from this great firm that have my life in their hands, and now I find out that they’re not even on the case anymore.”

Maples’s case heads to the Supreme Court next week, and once again the justices will be called upon to examine the intricate legal apparatus that has been constructed to ensure that the death penalty in America is carried out fairly.

It comes as questions about capital punishment and the legal process are in the public eye, as illustrated by the outcry over the recent execution of Georgia inmate Troy Davis, who proclaimed his innocence to the end.

And:

Maples’s new attorney, Gregory G. Garre, who served as solicitor general in the administration of George W. Bush, told the justices in a brief that the case “raises the shocking prospect that a man may be executed without any federal court review of serious constitutional claims due to a series of events for which all agree he was blameless.”

"DEATH ROW MISTAKE: Maples v. Thomas," is part of Bill Mears' CNN preview of the term, "Big cases await U.S. Supreme Court's 2011-12 term."

AT ISSUE: Whether a missed deadline to file a key appeal is justification to grant a death row inmate a second chance when the error was not the prisoner's fault and the result would mean a punishment as serious as lethal injection.

THE CASE: Cory Maples was convicted in the 1995 murder of two companions. On appeal, Maples now claims two lawyers working pro bono for him eventually left their law firm without telling him or the state, leaving confusion over where required paperwork should have been directed. A state judge then refused Maples a chance to refile his appeals.

THE ARGUMENTS: Maples' current attorney says the criminal justice system has been turned on its head by allowing prisoners to suffer the consequences of their lawyers' mistakes or incompetence. But state attorneys argue that long-established rules on filing often complex paperwork must be strictly enforced to ensure that all parties -- including the courts-- get a proper chance to hear the claims in an orderly fashion.

THE IMPACT: Among the 34 states with the death penalty, Alabama alone does not automatically give all its 200-plus current capital inmates taxpayer-funded legal assistance to file papers challenging their convictions, sentences and lethal punishment. Big law firms often step in and tackle the long and expensive appeals process. This is another case in which the high court will examine the procedural aspects of capital punishment and whether death row inmates are being given a full and fair chance to press their post-conviction claims.

"A death row inmate deserves one last chance," is the title of a Washington Post editorial from the September 18 edition of the paper.

CORY MAPLES is not a sympathetic character. But even lawyers for the state of Alabama, where Mr. Maples sits on death row, acknowledge that “it is hard not to feel a little sorry for a petitioner like . . . Cory Maples, who loses his chance to assert claims in federal court because of his lawyers’ errors.”

And what errors they were.

And:

Alabama argues that lawyers make mistakes all the time that defendants have to live with. It cites a 1991 Supreme Court case that severely limited a defendant’s ability to overcome a lawyer’s errors, including missed filing deadlines. In our opinion, this decision in Coleman v. Thompson was harsh, bordering on punitive, and the court should rethink its holding.

Mr. Maples’s two lead lawyers did not merely make mistakes; they essentially abandoned their client. The Alabama court clerk’s office, too, shares responsibility for the pitiful series of events. All of this was beyond Mr. Maples’s control. It would offend the essence of fairness to allow a mailroom error to deprive a death row inmate of his last, best chance to avoid execution.

Earlier coverage of Maples v. Thomas begins at the link.

ABA Death Penalty Representation Project Turns 25

The American Bar Association's Death Penalty Representation Project will hold its annual event in Washington DC, next month

25th Anniversary & Volunteer Recognition Event
September 14, 2011 | Washington, DC

Honored Guests & Awardees

Justice John Paul Stevens (Ret.)
The Project will honor Justice Stevens' lifetime of work and unwavering dedication to the principle of equal justice for all.

Read Justice Stevens' recent article in the New York Review of Books, "On the Death Sentence."

Death Row Exoneree Anthony Graves
Anthony Graves spent 18 years on death row for a crime he did not commit before being exonerated and released late last year.  Read a detailed account of his fight for freedom, as reported in Texas Monthly.

Congratulations to our 2011 Exceptional Service Award winners!
Arnold & Porter LLP
Dorsey & Whitney LLP
Fredrikson & Byron, P.A.

 
Event Details:
September 14, 2011
6:00 p.m. - 8:00 p.m.

Decatur House
Lafayette Square
1610 H Street NW
Washington, DC

Space is limited, and tickets must be purchased by September 12, 2011
Individual tickets: $100
Sponsorship packages are also available!
To purchase tickets / additional information:

The ABA created the Death Penalty Representation Project in 1986 to help ensure that every person facing a possible death sentence receives a fair trial and has the assistance of a good lawyer.

During the last 25 years the Project has raised awareness about the lack of representation available to death row prisoners, addressed this urgent need by recruiting and training volunteer attorneys, and implemented systemic changes to capital counsel systems. The Project has recruited the country’s top law firms to work on hundreds of pro bono death penalty cases. Our volunteers have contributed skills, more than one million pro bono hours, and many hundreds of thousands of dollars to this cause. They have also saved the lives of countless men and women.

The Project’s annual event celebrates volunteer death penalty attorneys who represent death-sentenced prisoners. Firms and individual volunteers are nominated for exceptional service and honored with our award. Prior award winners include Covington & Burling LLP, Drinker Biddle & Reath LLP, Jenner & Block LLP, Sidley Austin LLP, Skadden, Arps, Slate, Meagher & Flom LLP, and WilmerHale LLP. A full list of previous award honorees can be found here. Past speakers include Anthony Amsterdam, Wilbert Rideau, CraigWatkins, Steven Bright, Ray Krone, and others.

Last year's event was held in Houston.

The Alabama Case of Maples v. Thomas

Today's Birmingham News reports, "US Supreme Court to hear Alabama man's mail error Death Row case.  It's written by Mary Orndorff.

One of the first cases the U.S. Supreme Court will hear when it returns this fall is that of an Alabama Death Row inmate who missed an appeal deadline because of a mailroom mistake and undelivered paperwork.

The Cory Maples case will determine whether he gets another chance to avoid the death sentence, but it also will highlight Alabama's weak system for guiding the already-convicted and imprisoned through their appeals.

Maples, now 37, was found guilty of murdering two people in 1995 in Morgan County, and a jury voted 10-2 for the death penalty. The evidence included a videotaped confession.

A subsequent appeal was denied and notice was sent by the Alabama court clerk to his attorneys in New York, who took the case pro bono but had since left the firm. The envelopes were returned to the clerk's office, unopened. By the time Maples had learned of the denial, the deadline to file his next appeal had passed.

Maples argues the missed deadline was not his fault, and it shouldn't be held against him. His new lawyers, in written arguments ahead of the fall hearing before the justices, cited a 2006 case about the state's responsibilities to make a reasonable effort to contact a property owner about an adverse action regarding his house.

"Due process requires no less when a life is at stake," wrote Gregory Garre, a Washington lawyer representing Maples in Washington. "Yet here, the court clerk did nothing when the notices to both Maples' out-of-state pro bono attorneys of record were returned unopened and unclaimed, except to stick the notices in a file drawer."

And:

"Alabama stands alone in failing to provide counsel or any legal assistance for indigent death-sentenced inmates in postconviction proceedings. As a result, those who are fortunate enough to have attorneys must rely on pro bono counsel, most of whom practice far from Alabama," a brief filed by former Alabama appellate judges and state bar presidents states. "Although (there have been) numerous efforts to reform the system, it remains a labyrinth in which many a hapless inmate has become hopelessly lost, sometimes through no fault of his own."

The defense attorneys group said reimbursement for court-appointed lawyers after a conviction is capped at $1,000.

"As a result, Alabama Death Row prisoners rely primarily on volunteer counsel to vindicate their federal constitutional rights," it said.

The U.S. Supreme Court is scheduled to hear oral argument on Maples' case Oct. 4.

The SCOTUS Blog case file for Maples v. Thomas contains all briefing.

Earlier coverage of Cory Maples' case begins at the link.

A Mailroom Mix-Up That Could Cost a Life

That's the title of Adam Liptak's latest Sidebar column in the New York Times.  It appeared in the Tuesday paper.  LINK

Sullivan & Cromwell is a law firm with glittering offices in a dozen cities around the world, and some of its partners charge more than $1,000 an hour. The firm’s paying clients, at least, demand impeccable work.

Cory R. Maples, a death row inmate in Alabama, must have been grateful when lawyers from the firm agreed to represent him without charge. But the assistance he got may turn out to be lethal.

When an Alabama court sent two copies of a ruling in Mr. Maples’s case to the firm in New York, its mailroom sent them back unopened.

One envelope had “Return to Sender — Left Firm” written across the front along with a stamp that said “Return to Sender — Attempted Not Known.” The other was stamped with slightly different language: “Return to Sender — Attempted Unknown.”

Two associates handling Mr. Maples’s case had indeed left the firm, but it seems that no one bothered to tell the court or the mailroom that new lawyers there had stepped in. By the time Mr. Maples’s mother called, her son’s time to appeal had run out.

The firm’s name did not appear on the papers it had submitted in Alabama. The reason for that is not clear, but it may have been to avoid offending corporate clients. It certainly added to the confusion in the mailroom.

Sullivan & Cromwell has worked hard to undo the damage, but it has so far failed to persuade the courts to waive the deadline for filing an appeal. After losing in the federal appeals court in Atlanta, the firm persuaded a former United States solicitor general, Gregory G. Garre, to represent Mr. Maples in the Supreme Court.

Last month, Mr. Garre asked the justices to hear the case. The core of his argument — one that might convince a schoolchild if not a federal judge — is that Mr. Maples should not be blamed for a mistake he did not commit.

Variations on Mr. Garre’s argument arrive at the Supreme Court all the time. For the most part, they are rejected, on a theory that is as casually accepted in criminal justice as it is offensive to principles of moral philosophy.

And:

A spokesman for Sullivan & Cromwell declined to comment on the case, citing the pending Supreme Court petition.

That petition discussed a precedent that might seem instructive.

In 2006, in Jones v. Flowers, the Supreme Court considered what sort of notice must be given when the government wants to sell a home for unpaid taxes. If a letter is returned unopened, Chief Justice John G. Roberts Jr. wrote for the majority, officials must try harder to reach the owner.

“This is especially true,” he wrote, “when, as here, the subject matter of the letter concerns such an important and irreversible prospect as the loss of a house.”

Earlier Sidebar columns are noted beginning with this post.

The High Price of Life

That's the title of one article in the current issue of American Lawyer containing the Pro Bono Report 2010.  The article is written by Drew Combs.  LINK

In July 2008 Nixon Peabody signed on to its first pro bono death penalty case ever, representing Thomas Porter, a Virginia man convicted of killing a police officer. And like nearly all capital cases, this one is a heavy lift. It started with a nine-month investigation that included document requests to schools and hospitals and interviews with jurors, court officers, family members, former teachers, and fellow inmates.

"These were not situations where you could just Google someone and get an address," says Brian French, a Boston-based Nixon Peabody partner who is working on the case. "It requires a lot of going to the streets and knocking on doors." Last August the firm and its cocounsel, the Virginia Capital Representation Resource Center, filed a 60-page habeas petition with the state supreme court based in part on ineffective assistance of counsel and juror bias.

This sort of case--the multitiered, years-long postconviction death penalty appeal--has long been a pro bono staple at many Am Law 200 firms. In a flash survey conducted by The American Lawyer in May, 77 of the 121 respondent firms said they were handling at least one pro bono capital case. Fourteen firms, including Nixon Peabody, said that death penalty work accounted for their biggest expenditure of pro bono hours in 2009. (Last year Nixon took on a second capital case, in Louisiana.)

It's the timing that makes Nixon's dive into the expensive world of death penalty work noteworthy, occurring as the recession has forced firms to take a hard look at costs. French says that Nixon Peabody, where revenue per lawyer fell 7.1 percent last year, knew that the downturn might create challenges but steamed ahead because "it is a real important issue for the firm when you have inadequate processes and counsel that are not up to the task."

Just how much it costs to represent a death row defendant during a postconviction review process depends on many variables, but it's not cheap. "We ask a lot of our volunteers," says Robin Maher, head of the American Bar Association's Death Penalty Representation Project. "We ask them to donate a number of hours, sometimes over many years, to learn an area of the law they are not familiar with, and to represent someone in a far-off state."

So far, she says, Am Law 200 firms have remained committed to their current pro bono dockets. "None of the law firms we've recruited have called us to say they won't work on their cases anymore, despite the downturn in the economy and financial problems many firms are facing," Maher says. But merely maintaining the status quo may not be sufficient, as the demand for big-firm counsel jumps: "All of the problems caused by the poor economy have landed in the [public] defender community, and that is why requests for pro bono assistance have skyrocketed."

And:

At Chicago's Schiff Hardin, which is also handling three death penalty matters, managing partner Ronald Safer says that "I gulp every time before I agree to take a case because of the resources that must be devoted." Safer estimates that one matter that recently went to the Georgia Supreme Court cost the firm more than $800,000 in lawyer time and out-of-pocket expenses. Over the past five years, Safer says, Schiff Hardin has spent more than $7 million in attorney time and additional expenses on capital cases. Nonetheless, both Crowell and Schiff Hardin say they remain committed to doing death penalty work.

One of The Am Law 200's largest docket of capital cases is at Sidley Austin, which is currently representing 19 death row inmates in Alabama. (At one point, Sidley had 21, but the firm was fired by one client, and another client died of natural causes on death row.) The firm's heavy caseload can be traced back to a plea to Chicago firms by the ABA and federal judges in 2005. Sidley created a staff attorney position specifically to coordinate its death penalty effort. Kelly Huggins, a former associate at Sidley who holds the position, estimates that the docket costs the firm more than $1 million a year in attorney hours and expenses. Since 2005, she says, the firm has spent more than $2 million on such out-of-pocket expenses as expert witnesses, investigators, and travel.

And:

In Alabama part of the void has been picked up by Reed Smith, which in 2008 teamed with the Southern Center for Human Rights to represent four death row inmates. Three of the defendants were weeks away from the deadline to file postconviction petitions. "The Southern Center for Human Rights convinced me that Alabama's weird processes have created a large population of death row inmates that need lawyers," says Reed Smith senior pro bono counsel Christopher Walters. He pointed to the fact that the state does not provide funding for attorneys during the postconviction process and allows judges to supplant a jury majority's life-in-prison sentence with a death sentence.

Related posts are in the pro bono index.

Minnesota Lawyers Protect Rights of Those on Death Row

That's the title of Sam Barr's Behind the Bar column at MinnPost. LINK  Here's an extended excerpt from the beginning of the article.

About 3,300 people are on death row right now. Few are represented by competent lawyers at public expense, despite the need to be sure — certain, if possible — that only the guilty will be executed. Most death row inmates desperately need a lawyer.

At its annual awards ceremony a week ago, the Minnesota Justice Foundation highlighted the injustice that pervades the death penalty in the United States and recognized the Minnesota lawyers and law firms that donate time and money in the pursuit of justice for those on death row.

According to U.S. Magistrate Judge Jeffrey Keyes, "the criminal justice system, by and large, is infected with error. In a death penalty case, all of those inherent flaws are multiplied."

So it would seem: at least 17 people have been exonerated by DNA evidence after they were sentenced to die for crimes they did not commit. Minneapolis law firm Maslon Edelman Borman & Brand, LLP, may be representing the next one.

Douglas Armstrong was convicted of murder in south Texas. He claims he came on a man lying in a pool of blood, and tried to drag him to help. His story has never changed. Someone saw him, and he gave it up, only to be arrested shortly afterward. His trial counsel gave a half-hearted effort, and Armstrong was convicted. He was sentenced to death because the police claimed they found the victim's Medicaid card on Armstrong, and called that an aggravating factor. Maslon won the right to test the DNA evidence, which could refute the state's evidence and exonerate Armstrong.

But DNA evidence is not available in all cases.

Further, according to University of Minnesota law professor Carl Warren, the criminal justice system targets, convicts and executes minorities far more than whites. Warren points to research suggesting that the death penalty is a legal replacement for lynchings in some southern states. Panelists at MJF's seminar on death penalty litigation noted the frequency with which prosecutors pack the jury of a black defendant with white jurors.

Numerous other errors come up again and again in death penalty cases, from prosecutorial misconduct to incompetent defense counsel and more.

The only way to correct errors is on appeal, but there is little assistance available to those sentenced to die. During its 1995-96 term, Congress eliminated funding for resource centers that provided post-conviction representation. The same year, it shortened the time convicts had to file an appeal. Only a handful of states provide any assistance after conviction. Since 99.5 percent of those on death row are impoverished and cannot afford a lawyer, most errors go uncorrected.

Worse, some of those sitting on death row probably should not be there. Until 2002, the mentally retarded could be executed. But proving mental retardation takes a competent lawyer and expensive experts. Robin Maher, director of the American Bar Association's Death Penalty Representation Project, believes many of those on death row will be executed even though they are mentally retarded

Maher says she is angry. "I know how much there is to be angry about." Like a defense lawyer who told the jury his client's life was not worth saving. Or other defense counsel who were drunk or high during their clients' trials. Or U.S. Supreme Court Justice Antonin Scalia, who said the innocent may be executed as long as the proprieties are observed. (Scalia also says he does not believe anyone who is innocent has ever been executed.) Or judges in Alabama who often overrule juries when the juries decline to sentence the convicted defendant to death. Or the fact that until 2005, children could be sentenced to death.

Those on death row are in desperate need of lawyers to ensure that justice — whatever that may mean in a particular case — is done.

Emily Jones, 1949 - 2009

The State Bar of Texas has announced that Emily Jones has died after a five-year battle with cancer. During her career in public and private law practice and as a program director at the Bar, she worked to expand and improve access to legal services.  LINK

Emily C. Jones, former director of Texas Lawyers Care, the State Bar’s legal services/pro bono support, and former director of the Texas Access to Justice Commission, passed away early this morning after a five-year battle with multiple myeloma, a form of blood cancer. Known as a feisty and strong-spirited advocate for access to justice initiatives in Texas, Emily committed her entire career to helping low-income Texans gain access to legal assistance. More than that, Emily led by example — even while facing personal health obstacles — inspiring other Texas attorneys to do pro bono work.

Emily began her career as a legal aid attorney, working with East Texas Legal Services right out of law school. She later went into private practice as a civil rights attorney. Emily left law for a while, teaching at the University of Texas at Austin. She joined the State Bar in 1996 as a program attorney with Texas Lawyers Care and became the first executive director of the Texas Access to Justice Commission when it was created by the Supreme Court of Texas in 2001. In addition to her duties as director of the Commission and Texas Lawyers Care, Emily continued taking pro bono cases.

And:

In May, the Texas Access to Justice Commission honored Emily with the inaugural Emily C. Jones Lifetime Achievement Award for her work. The award recognizes an outstanding individual whose extraodinary spirit — like Emily's — and demonstrated commitment to legal services has improved society and inspired others.

GOP Focuses on Deputy AG Nominee Ogden's Work at Wilmer

That's the title of a Legal Times report by David Ingram.  LINK

The nomination of David Ogden to be deputy attorney general has given senators a chance to revisit some of most controversial Supreme Court decisions of the last two decades.

During a two-hour confirmation hearing last week, members of the Senate Judiciary Committee questioned Ogden about his work on cases involving abortion, the death penalty, foreign law and obscenity, repeatedly asking whether he personally holds the views that he argued on behalf of his clients. The partner at Wilmer Cutler Pickering Hale and Dorr replied that in many cases he does not, and that in others he would still enforce the law if confirmed as the No. 2 official at the Justice Department.

And:

"A lawyer in private practice does not sit in judgment of his clients. His job is to present their view as persuasively as possible," Ogden said at the Feb. 5 hearing.

The Judiciary Committee has not set a date to vote on Ogden's nomination. Senators have until Feb. 12 to submit questions in writing, and the Senate has a recess scheduled for the week of Feb. 16, potentially pushing a vote to the week of Feb. 23. Two other top Justice Department nominees, Thomas Perrelli for associate attorney general and Elena Kagan for solicitor general, go before the committee Feb. 10.

Senators' focus on Ogden's Supreme Court work is noteworthy because the deputy attorney general's responsibilities are far broader, including day-to-day oversight of the more than 100,000 Justice Department employees. Paul McNulty, former deputy attorney general, says he occasionally helped guide appellate strategy on national security matters, but that was the exception.

"The deputy attorney general does not have much involvement with Supreme Court advocacy. The solicitor general is fully responsible for that," McNulty says.

Still, senators wanted to know how Ogden would enforce federal laws, and appellate advocacy took up a significant portion of Ogden's time in private practice. He and fellow Wilmer partner and former solicitor general Seth Waxman teamed up on behalf of death-row inmate Christopher Simmons in Roper v. Simmons (2005), in which the Court struck down the death penalty for those who committed their crimes as minors.

Sen. Jeff Sessions (R-Ala.) criticized the idea that such a punishment is cruel and unusual. He asked Ogden, "The Constitution allows things that could be rarely done, doesn't it?"
Ogden parried back about the Eighth Amendment's two-pronged test of cruel and unusual before promising to uphold federal law on the death penalty whatever it is.

A reference by Waxman and Ogden in their Roper brief to "worldwide revulsion against the execution of juvenile offenders" drew the ire of Sen. Jon Kyl (R-Ariz.). Asked how much weight he gives foreign law, Ogden replied, "I think typically very little weight, Senator."

And:

No one asked Ogden about a brief he wrote for the American Psychological Association in Lawrence v. Texas, the 2003 case that overturned state sodomy laws, but perhaps they'll submit a question in writing

More on Roper v. Simmons and Lawrence v. Texas comes from Oyez.

Number of Attorneys Performing Pro Bono Work Static in Florida

"Number of Florida attorneys doing pro bono work has remained stagnant since 2000," is the title of a National Law Journal web-only report by Julie Kay.

The number of Florida attorneys donating their time to pro bono work has remained stagnant since 2000, according to a recent study commissioned by the Florida Supreme Court.

The study, released last week, showed that the percentage of attorneys reporting pro bono work was the same in 2006 as it was in 2000 — 52%. During the same period, Florida pro bono programs such as legal aid reported a 30% decline in the number of attorneys who volunteered through their agencies. "Pro bono legal services provided free to the poor are part of an overall obligation attorneys assume when they take the oath of attorney," said Chief Justice Peggy Quince in a statement. "Pro Bono Publico' literally translates as 'for the good of the public,' and the Florida Supreme Court will use this report to advance the public good. It will help us strengthen our profession's obligation to serve our communities at large and to help the poor in particular."

The study, conducted by Phoenix-based Carmody and Associates from January to May 2008, surveyed a sample of Florida's 60,000 attorneys in eight counties, both large and small. The survey was done online and through interviews. Florida's pro bono service rate is lower than the American Bar Association's reported rate of 66%, the state of Maryland's of 70% , Mississippi's 57% and Nevada's 62%.

Attorneys gave a variety of reasons why they are not doing more pro bono, but most centered on a lack of time, including having to care for children or an aging parent, a demand for increased billable hours at their job and having to work side jobs to pay down huge law school debt. The fact that they are increasingly specialized in their work and lack the knowledge to do the pro bono cases was another factor cited. Still others said their firm does not value pro bono work.

Weil Gotshal Pro Bono Project

Marcia Coyle reports, "Weil Gotshal attorneys monitor international criminal court in pro bono project," in National Law Journal.

Attorneys at New York's Weil Gotshal & Manges are leading an international pro bono project for Human Rights Watch in which they are monitoring and writing case digests, almost on a daily basis, on the voluminous decisions of the International Criminal Court (ICC), as well as attending the court's hearings in the Hague, the Netherlands.

"I consider it a unique project," said Eric Ordway, a leading partner in the firm's international arbitration practice. "Many law firms do work for NGOs [nongovernment organizations] on a project-by-project basis. But the work we are doing is almost expanding the staff of the NGO here. We have as many as 30 people working on the project. We have a system set up with tiers whereby certain associates review the cases; others review the summaries that are written and confer with representatives of Human Rights Watch. It's a fairly well-structured system and one that puts Human Rights Watch in a position where they can do much more than what they could with present staff."

The 15-month-old, ongoing project allows Human Rights Watch to get quick access to developments at the ICC and puts them in a better position to respond quickly to those developments, added Ordway.

The Weil Gotshal team recently was asked by Human Rights Watch to attend and report on ICC hearings and trials for Human Rights Watch, including the upcoming trial of Thomas Lubanga Dyilo, the alleged leader of one of Ituri's most dangerous militias, the Forces Patriotiques pour la Libération du Congo (FPLC), and the first person put in custody of the court.

Promoting Pro Bono Work

Lynne Marek files a National Law Journal web exclusive, "Illinois amends rules to fuel pro bono work."

The Illinois Supreme Court has amended its attorney registration rules to allow retired and inactive attorneys as well as in-house counsel leeway to practice law in the state for the purpose of providing pro bono services.

The amended rules authorize attorneys to provide pro bono services in the state as long as they aren't being paid. The rules also say attorneys must serve people or organizations of limited means, and identify a sponsoring organization, such as a non-profit, school or government entity.

The new rules, which were enacted on March 26, will take effect on July 1.

The Chicago Bar Foundation, the charitable arm of the Chicago Bar Association, has been advocating the rule change for a couple years to help ease a regional shortage of legal aid attorneys, said Bob Glaves, who is executive director of the foundation.

About 26 states have similar rules for retired or inactive attorneys and about 12 have such rules for corporate counsel, he said. Glaves estimates that the rule change could ultimately bring about 500 more Illinois attorneys to work on pro bono causes.

"It certainly is a good supplement to the limited legal aid resources that we have," Glaves said. "It helps leverage scarce resources."

Some attorneys have balked at renewing their licenses for pro bono work partly because of the state's continuing legal education requirements have increased over the past two years, mandating a greater cost and time commitment, Glaves said. We heard that it acted as a deterrent, he said.

"Some of these retired lawyers could really put in significant hours," Glaves said. "The strength in those numbers could really be a lot bigger than they might appear."

Under the new rule, attorneys on "retired" status with the state who still want to do pro bono work will be able skip paying a $289 annual state registration fee as well as annual legal education expenses of about $600, for instance, if taken through the Chicago Bar Association. Retired and inactive attorneys registered for the pro bono work will still be required to take part in any sponsoring organization's training.

Donald Verrilli Profile

Legal Times' Tony Mauro has, "At the High Court, Sometimes It's Personal."

The timbre of Donald Verrilli Jr.'s voice changes when he argues a pro bono case to the U.S. Supreme Court. For his paying clients at Jenner & Block, Verrilli, always soft-spoken and measured, is a master at gently steering the justices toward supporting his arguments in telecommunications and intellectual property disputes. His successful defense of music industry copyrights in MGM v. Grokster in 2005 secured his place in the top tier of high court advocates.

But when he argues on behalf of a death row inmate, mainly on issues of ineffective assistance of counsel, Verrilli's careful voice seems to drop a half-octave. It transmits deep disappointment about the inadequate representation his client got in courts below, as well as a measure of disbelief that others might not view it as he does.

And:

Verrilli began representing Kevin Wiggins in 1992, at the earliest stage of post-conviction appeals. Wiggins had been found guilty of drowning a 77-year-old Maryland woman in her bathtub during a robbery, and was sentenced to death. "I got to know him very well -- a strong emotional connection," Verrilli says. In spite of the crime, "he was the most sympathetic" of the defendants he has represented: "He had no prior criminal record; he had not engaged in preying on others."

At sentencing, the only mitigating factor that Wiggins' public defender lawyers presented to the jury was his clean criminal record -- ignoring his bleak life history of physical and sexual abuse. Verrilli took Wiggins through unsuccessful state and federal appeals. The 4th U.S. Circuit Court of Appeals ruled that Wiggins' trial lawyers had made "an informed strategic choice" not to raise mitigating factors. The Supreme Court reversed.

Verrilli's work for Wiggins did not end there: "We really dug in to present a first-class mitigation case" before Maryland courts, documenting his childhood. The state finally offered a deal, moving Wiggins off death row.

This year he handled a sequel of sorts. When the high court granted review in Schriro v. Landrigan, Verrilli casually e-mailed the Arizona public defenders who represented death row inmate Jeff Landrigan. In this case, like Wiggins', the trial lawyers failed to investigate mitigating factors -- but this time it was because Landrigan, the client, instructed them not to. Landrigan told the judge there was no mitigating evidence, and he said of the death penalty: "Just bring it right on." Landrigan had murdered before, and after escaping from prison in Oklahoma he strangled a man with an electric cord in Phoenix.

More on Wiggins, a critical death penalty ruling by the Court, is here, via Oyez.  StandDown coverage of Landrigan is here; Oyez has this.