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The More Strained the Reasoning Leading to a Transparently Unjust Ruling, the Better!

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Shorter Scalia and Thomas: By stopping Cory Maples’s execution, the majority has violated Alabama’s rights. Look, sure, he didn’t really have a “lawyer” in the sense of someone responsible for his case and working on it, but someone with “no substantive involvement” in his case once showed up in court to represent him. So it’s his fault that he missed a deadline — let the execution go forward!

More on this later, when my jaw is restored to its socket.

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  • Name

    Kangaroo courts and lynch mobs were the original intent of the Founding Fathers, and I’m sure Scalia can find 30 pages of blather about Revolutionary War-era frontier justice to prove that to us.

  • Glenn

    Just amazing the sort of legal knowledge that Scalia and Thomas would demand of this defendant. Particularly since S&C, the individual lawyers, and local counsel all couldn’t seem to navigate the system properly.

    But hey, I’m sure he must be guilty so, really, why should their beautiful minds be bothered with procedural niceties?

    • Incontinentia Buttocks

      IANAL but I’m pretty sure that Scalia has in the past ruled that factual guilt should be of no interest to the SCOTUS.

      It’s not even “I’m sure he must be guilty.” It’s “proceedures were followed to my satisfaction.” End of story.

      • Craigo

        Well, he’s right. An appeals court is not there to hold trials, it’s there to see that the trials are held according to proper procedure. That’s not just Scalia talking, it’s a foundational tenet of the common law system.

        • UberMitch

          Regardless of the proper role of appellate courts, my understanding is that Scalia believes “actual innocence” is not grounds to maintain a habeas action in a trial court (or maybe only a second one in exception to the AEDPA, or something, I don’t do criminal)

          • Craigo

            He probably did say something to that effect, but it means less than you’;d think. Yes, an appeals court has no business re-trying the case, that’s why they have the record. So in a very literal way, actual innocence cannot be the basis of an appeal.

            But I have a feeling that in the case under question, the trial record was so flawed due to the incompetence/malfeasance of the court/prosecutors that it should have been reversed and remanded, and Scalia brought up “actual innocence” to deflect from that the procedural errors.

            • UberMitch

              Well, wait, a habeas claim is a different animal than a direct appeal, as it is initiated in a separate trial court as an original proceeding that can accept new evidence (after the direct appeals are exhausted), but it still sits in review of the originally convicting court

        • Incontinentia Buttocks

          It’s not a question of whether or not the SCOTUS’s job is to determine factual guilt or innocence (obviously it isn’t).

          The question is whether, in the case of, e.g., the appearance of new evidence that suggests factual guilt, it is still constitutional under the 8th Amendment to execute someone.

          Rather infamously, in Herrerra v. Collins, Scalia and Thomas said it is.

          Scalia, in short, is perfectly comfortable executing the innocent but convicted. So there’s no need to impute to him a belief that Cory Maples is actualy guilty.

          • Glenn

            Well my (snarky) point was that Scalia is not really even concerned with procedural fairness, provided the defendant is really guilty. I mean, no one could look at the record in this case and honestly find it procedurally fair to Maples. I do agree that he also finds factual innocence untroubling as long as there was no obvious procedural issue.

            • Craigo

              My question is, how could “factual innocence” even come into play unless there are procedural errors that prevent those facts from coming to light at trial?

              • rea

                Newly discovered evidence that could not have been found in time for trial. DNA is the classic example, in which until the last few years, we didn’t have the technology to obtain the evidence. Or, imagine that someone else confesses years later. These are things that can happen without judicial fuckups or prosecutorial malice . . .

                • Scott Lemieux

                  Right. It is absolutely possible for evidence of factual innocence to emergence even after a trail that doesn’t have procedural defects.

                • rea

                  I was involved in a civil medical malpractice case, where the plaintiff lost, and then something found during surgery a couple of years later conclusively showed that he should have won. It can happen

          • mpowell

            This. Scalia thinks it is perfectly fine if a state conducts a trial, convicts a person, then later it turns out there is evidence that he is obviously innocent, but the state executes him anyways because they don’t have a procedure for processing the new evidence. And it doesn’t matter how unfair the standard is.

            It’s unfortunate that law school teaches people to think like something that is a mix between a moron and an ass, but the protection of the factually innocent is a perfectly valid measure for evaluating the fairness or constitutionality of a state’s claim of due process. It’s only when you arbitrarily narrow your thought process in the manner typical of lawyers that you can overlook this obvious principle.

            • Craigo

              No one in this thread is saying that it’s okay to convict the innocent as long as procedures are observed. I am saying that Scalia is absolutely right when he says “factual innocence” is not within the purview of an appeal; and also that this is a red herring, which is why Scalia says it.

              Whenever factual innocence comes into play, you can rest assured that there were procedural problems preventing these facts from being presented at trial. Scalia knows this, which is why he says something totally irrelevant that he knows will get people worked up – it distracts them from the procedural weakness he’d like to overlook.

              Even in Herrera, mentioned above, the Court was in no way deciding whether the appellant was guilty or innocent, but whether he was entitled to present new evidence to a hearing, which would then determine whether a new trial would take place.

              Scalia disingenuously said that granting Herrera relief would require courts to re-try every death row inmate who said he was innocent, which was a ridiculously false assertion. Unfortunately, people still buy into his framing.

              • mpowell

                I still believe you to be mistaken as to how the law ought to be conducted. Scalia literally does not care whether the procedures the legal system follow are fair. My argument is that a procedure that does not indicate a respect for factual innocence is not ‘due process’. And refusing to consider highly compelling evidence that emerges after the fact falls into this category and is certainly something the court should consider in evaluating a state’s process. That’s what Scalia said is irrelevant.

            • Holden Pattern

              It’s unfortunate that law school teaches people to think like something that is a mix between a moron and an ass, but the protection of the factually innocent is a perfectly valid measure for evaluating the fairness or constitutionality of a state’s claim of due process. It’s only when you arbitrarily narrow your thought process in the manner typical of lawyers that you can overlook this obvious principle.

              Please don’t tar all lawyers with the kind of assholitude that Scalia and Thomas exhibit. Also, one seems to recall a very long thread HERE in which people were arguing that killing certain US citizens without due process was “legal” because the AUMF could be closely parsed that way, and the relevant people were “bad”. And a lot of that was done by people who aren’t lawyers.

              IOW, cramped instrumental reasoning is not unique to lawyers, nor even particularly characteristic of lawyers generally.

              • That’s a pretty bizarre analogy, but I do agree that not all lawyers are sociopaths like Scalia.

        • L.M.

          That was never true of the habeas writ at English common law. The whole point habeas was to give judges broad discretion to ensure that the substantive aims of the law were satisfied by (rather than frustrated by) the procedural rules meant to implement them.

          In that sense, habeas was initially like other forms of equitable and quasi-equitable relief: it was meant as a flexible, catch-all tool to fill those gaps where rigid adherence to legal means would frustrate legal ends (i.e., the King’s justice). Habeas may actually have originally arisen in chancery; I’m not sure how much we know about the precise origins of the writ.

          Federal courts only assumed habeas jurisdiction over the state courts with the Judiciary Act of 1867. And it was only after this point that habeas gradually came to look like a form of appellate review, slowly accumulating the deferential procedural restrictions that accompany other forms of appellate review.

          But this restrictive application of the writ was clearly contrary Reconstruction Congress, which intended federal habeas jurisdiction over state courts to be exercised virtually without restriction. (After all, the conquered Confederate states could not be trusted to enforce federal rights or respect federal law of their own accord.) Indeed the same Judiciary Act of 1867 was also intended to extend federal courts’ jurisdiction over *all* state-law questions presented in a federal case, until the Slaughterhouse-era Supreme Court gutted that provision in Murdock v. City of Memphis.

          Now, in the years since Scalia’s egregious concurrence in Herrera (executing innocent people? no due process problem there!), statutory habeas has been virtually eliminated by AEDPA. But there would have been no AEDPA without Wainright v. Sykes and Coleman v. Thompson, and neither of those cases was consistent with the history or intent of the writ as it existed at common law or as expanded by the Reconstruction Congress.

  • David M. Nieporent

    You do understand that this was on a discretionary postconviction proceeding in which Maples had no constitutional right to a lawyer in the first place, right? Maples had a trial, he had an appeal to the Alabama Court of Criminal Appeals and the Alabama Supreme Court, and he had postconviction review in state court. He had lawyers who actively handled each of those proceedings. It was only after losing three attempts to overturn his conviction that these events happened.

    In any case, as usual the “shorter” snark simply serves to ignore what the person actually said; what Scalia said was that in fact Maples did have lawyers working on his case. (Other lawyers from Sullivan & Cromwell, not just his local counsel.) Obviously those lawyers all dropped the ball, but under established law — whether you like it or not — attorney negligence (in a situation in which one is not entitled to representation) is imputed to the party.

    • Craigo

      Abandonment by counsel is not, in fact, imputed to the party.

      • Craigo

        Okay, to explain for those who don’t want to read the opinion:

        The petition was discretionary and he did not actually have the right to counsel. But when the counsel that he did have abandoned him without withdrawing, they remained as the attorneys of record and all the court papers were sent to them, not to the petitioner. The attorneys were no longer present at that firm, however, and the correspondence was returned to the clerk, who made no further efforts to give notice. Thus the petitioner had no idea what was going on in his case, and did not until an Alabama assistant AG, acting on his own hook, sent him a letter personally – well after the deadline, of which he was unaware, had passed.

        • Holden Pattern

          He should have picked better lawyers. Cargo cult justice is just as good as any other kind.

        • rea

          he did not actually have the right to counsel.

          Or, more precisely, he did not have the right to appointed counsel. He still had the right to counsel, though, if he could get one. Retained counsel are held to the same standard of effectiveness as appointed counsel.

      • David M. Nieporent

        Right; I agree. That’s why I said “attorney negligence” rather than abandonment. Scalia’s argument was that, as a factual matter, Maples had not, actually, been abandoned, that the evidence showed that S&C continued to have lawyers working on his case after the two attorneys of record left.

        Now, that may be factually incorrect; I haven’t reviewed the record and don’t know whether Scalia’s conclusion is reasonable. (The majority addresses it only by saying that the other S&C lawyers hadn’t sought pro hac vice admission in Alabama, and thus couldn’t file papers, which — while obviously true — is not fully responsive.) But whether it’s factually correct or not, it means that Scalia was not saying what Scott claimed he said; Scalia did not say that if a lawyer abandoned his client, tough luck for the client.

    • Scott Lemieux

      that Scalia said was that in fact Maples did have lawyers working on his case.

      Scalia’s argument is silly. Yes, other lawyers in the firm might have worked on the case at some point when Munanka and Ingen-Housz were actually doing their job, but nobody was responsible for him at the time of the missed deadline. This isn’t just “negligence,” and hence as the other 7 justices correctly concluded Maples is not responsible for the missed deadline.

      • Anderson

        I agree with the majority, but Scalia has made worse arguments. S&C committed major malpractice here – Scalia is right that the firm, not just the pro bono dweebs, represented Maples.

        But a malpractice suit by Maples’ estate isn’t much consolation to him. God knows, in a capital case, you don’t need to split the hairs too finely.

        • Scott Lemieux

          Scalia has made worse arguments

          The man wrote the stay opinion in Bush v. Gore; after that, this is virtually certain to remain true by definition.

          • wengler

            A true counting of the votes may cause irreparable harm to the petitioner.

            There’s no doubt that was true.

          • L.M.

            Bush v. Gore is perfectly consistent with Art. IV §4 of the U.S. Constitution. Just read the text! The federal government must guarantee states a “Republican Form of Government.” “Republican” is capitalized and everything! That’s just science.

            • rea

              The federal government must guarantee states a “Republican Form of Government.” “Republican” is capitalized and everything!

              Well, but there Mr. Justice “Original Intent” made a serious historical error. The two parties in the time of the founders were the Republicans and the Federalists. The Republicans, however, subsequently changed their name to “Democrats.”

    • DrDick

      So Nieporent comes down in favor of executing the innocent as long as the proper forms were followed. Why am I not surprised.

      • Malaclypse

        The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread have lawyers any better than they can afford.

        • Craigo

          I’m not arguing with the sentiment, but note that money had nothing to do with it. The counsel in this case were from a reputable firm and working pro bono. Just goes to show you that Big Law attorneys can screw up just as well as country lawyers.

          • Njorl

            If they were not working pro bono, I have a feeling they would have at least notified their client that they were quitting.

            • Holden Pattern

              In fact, they would have certainly faced a disciplinary hearing and potential disbarment if they had done this to a paying client. You can’t just walk away from a representation and leave the client to hang.

            • rea

              The basic story is this: Sullivan & Cromwell took the case pro bono, but it’s a huge firm–700 or 800 lawyers. They assigned it to a couple of junior associates, who were apparently told to keep the firm’s name out of the pleadings–can’t have any of their high finance clients learn that they defend death cses pro bono. The two associates do a reasonable job on the appeal, and are waiting a decision. Meanwhile, their own time runs out–big firms like S&C regularly conduct purges of junior associates. Out the door they go, and the firm treats them as nonpersons–their mail doesn’t get forwarded–return to sender, address unknown.

              So, the decision comes down, trigering the deadline for an appeal. Nobody at the court knows S&C is involved in the case–all they have is the names of the two ex-associates. Nobody at S&C has bothered to look at the departed associates’ files–which the departed associates of course were not permitted to take with them. And the mailroom returns the court’s decision to the clerk as unforwardable.

              To it’s credit, once this all came out, S&C conceded fault, and financed a very expensive appeal to the Supreme Court, hiring a prominent Supreme Court litigator known to be a close friend of Roberts to take the case.

              And ultimately, strange to say, this sensible and just decision by the Supreme Court is probably mainly the result of S&C’s clout. If it had been me that screwed up a case this badly, rather than S&C, I doubt the Supreme Court would have taken the case.

              • David M. Nieporent

                They assigned it to a couple of junior associates, who were apparently told to keep the firm’s name out of the pleadings–can’t have any of their high finance clients learn that they defend death cses pro bono.

                I’m sorry, but nobody who knows anything about the politics this topic thinks that. BigLaw firms (at least in NY) love to tout their pro bono efforts against capital punishment. It allows all the lawyers at the firm to feel like they haven’t sold out by representing Fortune 500 companies all day long. Presumably they wanted their name off the papers so they would be less likely to be on the hook as a firm if the associates left the firm.

          • rea

            The counsel in this case were from a reputable firm

            Well, hell, I’m not sure I’d call Sullivan and Cromwell “reputable.” They are, however, exceeding rich and powerful, very involved in high finance.

      • David M. Nieporent

        See, this is why the snark on this site is so ridiculous. People have no idea about the facts, but simply want to express their tribal identity.

        Who on earth said anything about innocence? There wasn’t anything remotely about a claim of innocence in this case.

        • DrDick

          The entire proceeding was an attempt to introduce new evidence that supposedly would demonstrate his innocence. I do not know whether he is innocent or not, but if there is any evidence which might exculpate him then he should have the right to present it. Again this goes back to the issue raised earlier others about DNA evidence. Your position has consistently been, it does not matter whether or not he is innocent, as long as the proper forms have been followed it is perfectly right and proper to execute him. Exactly the kind of legalistic formalism, at the expense of any notions of justice, that I would expect of you.

          • David M. Nieporent

            I’m not sure from where you derive what my position has “consistently been,” — though I certainly am a legal formalist — but you’re completely wrong on Maples. He was not trying to introduce new evidence of innocence.

    • chris

      attorney negligence (in a situation in which one is not entitled to representation) is imputed to the party

      I think I’ve found the problem.

      Either this principle, or the refusal to construe 6A to cover postconviction proceedings (which would obviously make this inadequate representation, which is definitely *not* attributed to the defendant), or the combination of both, leads to serious miscarriages of justice.

      It’s one thing to attribute the negligence of a realtor to the real estate agency, or a bus driver to the bus line, but attributing the negligence of a lawyer to his client is more like attributing medical malpractice to the patient — they just aren’t equipped to even attempt to second-guess a professional, let alone do so correctly, and their control over their agent’s actions is as much fiction as fact.

      Honestly, I don’t see the difference between this and saying medical malpractice can’t exist because you chose that doctor, therefore contributory negligence, now go away.

  • Alex

    Money quote by Scalia in the end of his dissent — the majority’s reasoning would excuse all default’s that are product of petitioner’s counsel’s negligence; which by any stretch is beyond a petitioner’s control.

    If these clutz lawyers didn’t leave the firm, but simply forgot abuot the case, and missed the deadline doing coke — Coleman would plainly prohibit relief.

    Scalia is right, except that of course, “cause” should mean to excuse anything that is, under the plain common sense meaning, beyond petitioner’s control.

    • rea

      the majority’s reasoning would excuse all default’s that are product of petitioner’s counsel’s negligence; which by any stretch is beyond a petitioner’s control.

      Ineffective assistance of counsel is perhaps the most common ground for seeking habeus relief from a criminal conviction.

      • Katya

        Ineffective assistance of counsel during trial or direct appeal is a ground for seeking habeas relief–ineffective assistance of counsel during the habeas proceeding is not a ground for excusing procedural default. Which is why it’s legally relevant that S&C was found to have abandoned their client, rather than just screwing up massively. Which seems relatively messed up to me, but what do I know?

  • efgoldman

    Don’t know why you should be surprised, Scott. I skimmed the opinions (I’m not a lawyer) and it was just Scalia turning himself into his usual legal pretzel to prove that the sky is always green if the state – especially a Confederate state that doesn’t give a rat’s ass about defendant’s rights – says so.

    In a way, I’m more surprised that Roberts and Alito concurred.

    • Scott Lemieux

      Well, it’s kind of classic “minimalism”; their votes were superfluous and the ruling applies to a very specific and and unusual set of facts, so why not?

      • elm

        The decision was also based on another Alito decision, i.e. he wrote ina previous decision that the defendent should not be granted relief in that case because X did not happen to him. In this case, X did happen. Alito was boxed into a corner by his own previous pretzel logic.

        • The Shaggy DA

          You give him far too much credit. I’m sure there was another hair he could split if he was that interested. What do you think they teach you in law school?

      • rea

        Well, Roberts and Alito couldn’t see a good corporate 1%er firm like Sullivan & Cromwell disgraced, could they?

  • Tom M

    I get why Scalia wrote what he did. I am, however, a bit at sea as to S&C’s procedures for debriefing attorneys who depart the firm. Is there no supervising attorney who goes over the cases on which the lawyers who are leaving were working? It is rather common where I work to do things like cover the list of clients to try and make sure no one is left out.
    Nobody at S&C looks at mail for attorneys who have left the firm, especially mail from, ya know, one of the States? I have been across from S&C real estate lawyers and thought they were very sharp. I have occasionally recommended them.
    Not anymore. I sort of sense that Antonin may have been less antagonistic towards a defendant and more perturbed that a major NYC law firm could have been so fucking hapless.

    • David M. Nieporent

      I get why Scalia wrote what he did. I am, however, a bit at sea as to S&C’s procedures for debriefing attorneys who depart the firm. Is there no supervising attorney who goes over the cases on which the lawyers who are leaving were working? It is rather common where I work to do things like cover the list of clients to try and make sure no one is left out.
      Nobody at S&C looks at mail for attorneys who have left the firm, especially mail from, ya know, one of the States?

      Indeed. S&C’s approach makes no sense. Attorneys leave a firm (especially one as big as S&C) all the time, and except for a few of the seniorest partners, they don’t take all their open matters with them. Courts (and opposing counsel) send documents to S&C all the time. The firm can’t possibly have a policy of returning unopened all documents addressed to a departed attorney.

      Plus, as far as I can tell, nobody has been disciplined by the bar for this. I sympathize slightly with Butler (the local counsel); I’ve served as local counsel many times (not in criminal matters), and generally do not take any role in the case, leaving that all to foreign counsel once they’re admitting PHV. Still, as a formal legal and ethical matter, he was responsible; he can’t avoid that just by saying he told foreign counsel he didn’t want to be.

      And the two S&C attorneys who left were completely irresponsible — even if they assumed that someone else at S&C would take over, they knew they were attorneys of record. (Though their behavior makes a little more sense if Scalia is correct that other S&C attorneys were working on the case.)

  • CDWard

    OK, so NOW can we impeach Scalia and Thomas? These clowns have demonstrated that they have no interest in justice at all.

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