Unfair And Unconscionable: The Capital Jurisprudence Of Antonin Scalia

By Jeff Gamso, cross-posted from his blog, Gamso - For the Defense

Paul Szep

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.

But if the interest of fairness justifies our excusing Maples’ procedural default here, it does so whenever a defendant’s procedural default is caused by his attorney.That is simply not the law—and cannot be, if the states are to have an orderly system of criminal litigation conducted by counsel. Our precedents allow a State to stand on its rights and enforce a habeas petitioner’s procedural default even when counsel is to blame.

That is to say if we demanded fairness, then it would be the end of "an orderly system of criminal litigation conducted by counsel."  The republic would survive, but our whole system of criminal justice would collapse.  (Which he might think would destroy the republic, but he doesn't say that.)

So fairness be damned.

The case is Maples v. Thomas, and I've written about it before.   It's the sad saga of Cory Maples.  He's on death row in Alabama.  He got Sullivan & Cromwell, a fancy-ass, white-shoe, big-shot law firm in New York to represent him in state post-conviction proceedings because Alabama can't be bothered actually paying lawyers to do that sort of work.  But S & C dropped the ball.  Horribly.  Inexcusably.  Their lawyers abandoned Cory without telling him.  Alabama sent word to the lawyers that Cory had lost a round of his case which started a clock by which he had to appeal.  S & C returned the letters unopened because the lawyers who'd been working on Cory's case left the firm.  And then Alabama did nothing.  Until the deadline passed.

And SCOTUS today, in an opinion that really does nothing much to break any legal ground but really is no more than a correction of a monstrous and self-evident wrong, by a vote of 7-2, said to give Cory a chance.  Because, after all (although they didn't say this), the alternative is unfair.

Which left Nino to stammer and threaten the end of criminal law (if not the republic).

There's nothing much new in any of this.  On those occasions when 5 members of the High Court are sufficiently appalled by what the system did to the convicted guy, he wins.  Because it's only fair.

On those occasions when 5 members of the High Court are more appalled by the crime than by the unfairness of what was done to the convicted guy, he loses.

Well, 5 members of the Court who don't understand that a fair system means anarchy, criminals running rampant through the streets. 

Bar the gates.

Hide the silverware.  

Lock up the women and children.

A year and a half ago, it was Holland v. Florida.  Then, too, the poor guy's lawyer had, effectively, abandoned him.  If it's sufficiently gross abandonment, said a 7-2 majority of the Court, not just garden variety negligence, but negligence with cooties, he gets a chance to be heard.

Scalia would have none of it.  The problem he identified then wasn't that the republic (or at least the system of criminal law) would crumble if we tried to make it fair.  The danger then wasn't fairness.  It was conscience.  Judges, he said, might have a conscience.  But its dangerous and must be tamped down.

The Court’s impulse to intervene when a litigant’s lawyer has made mistakes is understandable; the temptation to tinker with technical rules to achieve what appears a just result is often strong, especially when the client faces a capital sentence. But the Constitution does not empower federal courts to rewrite, in the name of equity, rules that Congress has made. Endowing unelected judges with that power is irreconcilable with our system, for it “would literally place the whole rights and property of the community under the arbitrary will of the judge,” arming him with “a despotic and sovereign authority,” 1 J.Story, Commentaries on Equity Jurisprudence §19, p. 19(14th ed. 1918). The danger is doubled when we disregard our own precedent, leaving only our own consciences to constrain our discretion. 

So fairness is out.  Conscience is out.  What's left?

Oh, yeah.

Let them eat cake.

Jeff Gamso is a criminal defense lawyer, civil libertarian (former Legal Director of American Civil Liberties Union of Ohio), anti-death penalty activist, public speaker.