THE BLOG
08/05/2010 02:01 pm ET Updated May 25, 2011

A Technical Death

Recently, a death-sentenced inmate (Cory Maples) asked the United States Supreme Court to hear his case. There is nothing unusual in that except that the reason for the request has to do with his being charged -- or legally responsible for -- a technical error. Mr. Maples is on Alabama's death row, and Alabama is well known for not providing its death sentenced inmates with counsel -- rather relying on big firms willingness to come in and represent them for free. Which is what happened in Mr. Maples case, except that the two associates from Sullivan & Cromwell who had worked on his case had left the firm by the time a state decision came down, so when the mail with the opinions was sent to the firm, it was returned unopened. This meant that Mr. Maples violated a technical rule in Alabama -- he didn't ask for an appeal within the time required. So, no appeal and an execution because Mr. Maples is responsible for the fact the lawyers left and the mail room didn't forward the mail to anyone else in the firm. In other words, he dies on a technicality.

This concept is called procedural default in the law. The idea is that the defendant should have to follow the rules of the state he is in, file things on time, and present every claim and fact to every state court before he can present it to a federal court, or to a higher court in the state. There are good public policy reasons for this -- state laws should be respected, rules followed and state courts given the opportunity to correct their own mistakes. But it can be absurd as well -- for example in one case, defense counsel filed their brief late. Three days late. He was executed. You file three days late, you die. Literally.

It makes sense to have a rule, but it also makes sense to have some reasonable exceptions to it. How fair is it to hold a death row inmate responsible for the fact his lawyers didn't find out about the lost mail until the time for requesting an appeal was up?

In my book I tell the story of one of my clients, whom I call Deirdre Jennings. In her direct appeal, the previous lawyer was limited to raising issues that occurred in court, and asking for a hearing on the ineffectiveness of the lawyer. She did that and lost. When I, and my students, became involved we investigated the case as it should have been in the first place, and discovered exculpatory information hidden by the police and evidence leading to another guilty party, we filed a state habeas petition for a new trial based on all the newly discovered evidence. The state judge threw us out of court without a hearing, saying that Deirdre should have brought all these new facts to light during the direct appeal -- even though no law required reinvestigating the case at that juncture. That was the point I emphasized on our subsequent appeals to the Michigan Court of Appeals and the Michigan Supreme Court. Both courts refused to hear the case. We went to federal court and won her a new trial, but lost it again when two of three federal appellate judges said indeed that is what the previous lawyer should have done, even though there was no statute, no case law and no rule that said that at the time. Apparently I should have just guessed that the law would change in her case, and because I didn't, I had to walk an innocent woman back into prison.

(There is a happier end to the story -- two years later we were able to get the governor to commute her sentence, but no court would help us, and she still has a record despite her innocence.)

If nothing else, that case demonstrates how far from guilt versus innocence the law can sometimes veer. A defender can drop into a procedural hole from which it is nearly impossible to extricate herself.

As a defense lawyer I hear all the time about "technicalities" that let the guilty walk free. Well, not so I'd notice. Its technical rules that often allow the state to hold onto a conviction that is improper -- and often of the innocent. It's time we do this another way -- that we look at the merits of the case, and the good faith of the defendant and not send a woman to prison for the rest of her life because her lawyer (me) didn't guess that the law would change in her case, or a man to his death because the mail didn't get delivered.