9/19/2011

By Reid Allison, J.D. Candidate

On October 4th, 2011, the Supreme Court will hear a case that arises out of a mailroom mistake. As anyone who has ever used the United States Postal Service knows, mistakes occur all the time. Two things make this particular case stand out from the crowd of everyday mailroom snafus. First, the mailroom in question was that of Sullivan & Cromwell—a very highly regarded New York law firm. Second, and the reason that certiorari was granted in this case, the mistake cost a man on death row the ability to appeal his conviction—leaving him with no recourse to stave off eventual execution.

In the case, Maples v. Thomas, the petitioner was convicted of two counts of capital murder in Alabama state court. When notice of his decision was sent to Sullivan & Cromwell, the letters were sent back unopened because the attorneys representing Maples had left the firm and the mailroom did not forward them to someone else.Before Mr. Maples’ mother asked Sullivan & Cromwell what was going on and the firm realized its mistake, Mr. Maples’ time to appeal the court’s decision had run. The Supreme Court will determine whether Mr. Maples is barred from arguing the constitutionality of his death sentence because his Sullivan & Cromwell attorneys missed the filing deadline.

Beyond narrow procedural issues that will likely only be interesting to a certain subset of practicing attorneys,Maples raises two issues on a national legal policy level. First is the growth of powerful appellate litigation—including Supreme Court—practices at large law firms, especially as this trend affects and pertains to pro bono criminal cases. The growth of the Supreme Court Bar specifically has been pronounced and well documented in the last five years. In most circles, the trend toward more frequent expert representation before the court has been greeted favorably.

However, earlier this year, Professor Nancy Morawetz of New York University Law School wrote a thought-provoking and conversation-starting article in the NYU Law Review.# Professor Morawetz raised the concern that counsel from the Supreme Court Bar may have incentives and motivations that conflict with the best interests of their clients. Many of these same conflicting motivations drive pro bono appellate practice generally (e.g. appealing a decision for the sake of generating more appellate work, when other options may be better for the client).

The presence of Maples before the Supreme Court appears to come down to a clear and natural concern around pro bono practice at large law firms—that lawyers at large law firms may not be as invested in their pro bono matters as attorneys who had been representing the defendant locally for some time. This is especially relevant on the facts of this case, where the mailroom mix-up was precipitated by the two Sullivan & Cromwell associates who had been working on Mr. Maples’ case leaving the firm and the associates who were designated to take over failing to inform the mailroom of the situation. This kind of mistake would not have occurred if the mailing in question was for a paid client’s case, since both the leaving attorneys and the taking-over attorneys would have closely coordinated and ensured that the mailing was received and appropriate action was taken to appeal. Furthermore, it seems unlikely that the mistake would have occurred if Mr. Maples had local counsel who knew the case well and had been working closely on it. 

Though it seems unlikely that the concerns raised by Professor Morawetz are compelling in every single big-firm appellate pro bono case—civil and criminal—the stakes of criminal cases lend certain urgency to the question. Where a defendant’s life or liberty is what is at stake, counsel that is invested in the case would always seem to better serve the client, rather than an undoubtedly talented big-firm attorney who is not as involved in the litigation from the beginning and who is based hundreds of miles away. 

That said, one cannot deny that Sullivan & Cromwell, chastened by its mistake, has attempted to rectify the situation as best as possible. It has hired Gregory Garre, from Latham & Watkins LLP, to lead Maples’ appeal to the Supreme Court. Thus, while this situation is not the type of “distorted incentive” that Professor Morawetz was discussing, it does raise one interesting question: is Sullivan & Cromwell trying to protect Maples’ interests, or save face as much as possible, or both?

The case also once again raises the morality of the death penalty itself. When beginning inquiry into this case with: “should the law of this country allow a mailroom mix-up to cement a man’s death sentence?”, it is difficult—given the macabre absurdity of the facts—not to find oneself questioning whether or not the death penalty is a practice that our states should be involved in.

This question comes hot on the heels of a recent Republican Party debate for the 2012 Republican presidential nomination, duringwhich Texas Governor Rick Perry was asked about the record 234 executions that he has overseen as Governor of Texas. The question itself was not what was interesting about the scenario. Instead, the thunderous applause that greeted both the recitation of his record and his claim to have never lost any sleep over the number of people he has put to death, was the topic of conversation in the media afterward. His latter contention of steadfastness was debated widely in the blogosphere given substantial evidence that at least one of the 234 executed prisoners was likely not guilty.

Rather unexpectedly, some of the strongest backlash to emanate from this portion of the debate was backlash against Brian Williams for asking the question, instead of Governor Perry for his response or the crowd for their reaction. Professor Ann Althouse compared Mr. Williams line of questioning to Bernard Shaw posing outrageous hypotheticals to Michael Dukakis during the 1988 presidential debates in that questioners may have been hoping to elicit a passionate response that would conflict in some ways with their established positions on the death penalty. It is emblematic of our current political climate that, even on an issue that enjoys widespread bi-partisan support, barbs were traded about liberal bias in the media.

Despite the salience of this case on national legal and cultural policy issues surrounding the criminal justice system and the death penalty, Maples v. Thomas will not be the case in which the death penalty is confronted head-on either by the Court or by the American public. Whether the moral foundation of the death penalty in this country is assailable or not, seems today irrelevant as a significant majority of the American public supports the practice, and politicians on both sides of the aisle continue to express their support for it.