Tuesday, October 4, 2011

Alabama death row inmate's case derailed by Alabama, New York co-counsel inaction

   The Wall Street Journal today published an Associated Press story about Corey Maples, an Alabama death row inmate whose appeal of his post-conviction petition was denied “because two lawyers at a venerable New York law firm handling his appeal moved on to other jobs and a court notice was returned to sender, address unknown.”
   The article blames the error on two associates at the law firm of Sullivan and Cromwell, a huge, blue-blood law firm in New York City.
   Further down in the article is a notation that the “court sent a notice to the lawyers, as well as a local attorney in Alabama, starting a 42-day clock for appealing the order.”
   So, I was intrigued. It appeared to me that blame was being laid at the foot of a high-dollar New York law firm, but the article showed that an Alabama lawyer on the case was notified, too.
   Keep in mind that many large, high-dollar law firms often get involved for free in death penalty cases. They do it supposedly as a public service, but most often these firms do this pro bono work to enhance their image. Painfully aware that they are often seen as money-grubbing firms, they use the pro bono work to bolster their image as compassionate about justice.
   Many lawyer friends of mine who try and appeal death penalty cases have told me these firms send young associates to do this pro bono work and their legal skills are nascent and their knowledge of criminal cases – and the impact of their work – is virtually nil. This is because large firms like Sullivan and Cromwell don’t seriously practice criminal defense. They tinker with it.
   After reading the article, I looked into the case further.
   The case, reported as Ex Parte Cory R. Maples is Case # CR-03-0021 and found at 885 So.2d 845 (2004).
   The Court of Criminal Appeals of Alabama issued a ruling, authored by Judge McMillan with all judges concurring, that is eye-opening.
   Maples had filed what is called a Rule 32 petition, which a collateral attack on his conviction. Collateral attacks are different from appeals and are a weapon in the arsenal of good appellate lawyers to overturn convictions. They are usually won on the grounds that the trial lawyer was ineffective or on the grounds that new evidence, unknown at the time of the trial, is available and proves the convicted defendant is not guilty.
   This Rule 32 petition was filed in August 2001 by two Sullivan and Cromwell lawyers, Clara Ingen-Housz and Jaasi Munanka, along with local counsel, Huntsville lawyer John G. Butler, Jr. It is interesting to note that the two New York lawyers misspelled the defendant’s first name. Such inattention to detail is troubling. If you can’t get somebody’s name right on a death penalty case, what else will you get wrong?
   Fifteen months later, on May 22, 2003, Judge Glenn Thompson denied the petition. Alabama lawyers will tell you that as of that date Maples had 42 days to appeal Thompson’s order denying his petition. The next day, on May 23, 2003 the circuit clerk mailed copies of Judge Thompson’s order denying the petition to the New York lawyers and to Butler.
   The New York firm sent the clerk’s notification back unopened with a notation “Left Firm.” This is troubling as surely Sullivan and Cromwell had a new attorney on Maples’ case after Ingen-Housz and Munanka left their firm. In fact, they did. Lawyer Marc De Leeuw, with the firm, was assigned the case. Sullivan’s mail room should have forwarded the order to DeLeeuw.
   What is clear is that Huntsville attorney Butler received his copy of the order denying the petition because he later filed an affidavit saying he had.
   Maples filed a Petition for Writ of Mandamus, asking the Alabama Court of Criminal Appeals to grant him an out-of-time appeal. The court denied the motion, citing that the failure of Maples to appeal was the fault of all three attorneys, and thus his failure as well.
   “The duty to monitor the status of one’s cases necessarily include the duty to notify the circuit clerk of any change of address. Here, Maples was represented by three attorneys. Because Maples was represented by attorneys, all correspondence from the circuit clerk was directed to the attorneys.”
   “Attorneys Clara Ingen-Housz and Jaasi Munanka, both attorneys licensed by the State of New York, applied and were granted... status to represent Maples... To be admitted..., an out-of-state attorney must associate with a local attorney. Here the local attorney was John Butler. Butler stated in his affidavit that is included... that he was given notice of the dismissal of the Rule 32 petition.”  As a lawyer, I find the word “dismissal” here troubling, as earlier in the appeals courts’ decision it notes the order was denied. Denied and dismissed are two different things.
   The appeals court continued: “The Alabama Supreme Court in Thomas v. Kellett, 489 So.2d 554, 555 (Ala.1986) held that when one attorney has received notification... and co-counsel did not, ‘the ... court’s notification of [one attorney representing a party] and not [the other attorney representing the same party] ... was sufficient to give notice to both in light of their apparent co-counsel status.’”
   Thus, Maples received timely and proper notification by the trial court of the denial (or dismissal) because one of his lawyers had been properly notified. Maples lost the opportunity to appeal because his attorneys failed to react to the court’s notice of the order, and Maples had no idea it was even happening.
   The Maples case is important for one main reason. It shows that any lawyer engaging in any case, most especially criminal defense, must be diligent in the pursuit of justice for his client. In this case, a death penalty case, the standard of care is even higher.
   Clients need to know that when they are represented by counsel that their lawyer could receive an order from the court and that this implies legally that the client received it. Therefore, it is important for lawyers to communicate diligently with their clients.
   To make sure this doesn’t happen, I have a policy at my office is to copy all clients on any mail, court filings or any other document. In short, anything I send out or file with the court, the client gets a copy, same day. Anything I receive, the client gets a copy, same day. That even includes former clients. If I get anything in the mail regarding a client or ex-client, I send a copy on to that person. 
   This policy works for me because I know my clients know what is happening in their case. It keeps me on my toes. It makes sure I am diligent about the important details.
   If that had happened in this case, Maples would have had real-time knowledge of the order of the trial judge denying his petition, and he would have had a chance to contact his lawyers and make sure they did not drop the ball.

(Required by Alabama law: No representation is made that the quality of legal services performed is great than other lawyers.)