Last year, we covered a mistake made in a death penalty case by the white-shoe firm of Sullivan & Cromwell. It was a noteworthy development because of the rarity of the occurrence — S&C doesn’t often make mistakes, at least not ones as elementary as missing a deadline — and because of the stakes involved.

Well, the stakes are getting higher: S&C is now seeking SC review. The firm wants the Supreme Court to step in and essentially forgive the firm’s error in missing the deadline to file an appeal. Adam Liptak tells the tale, in the New York Times:

Sullivan & Cromwell is a law firm with glittering offices in a dozen cities around the world, and some of its partners charge more than $1,000 an hour. The firm’s paying clients, at least, demand impeccable work.

Cory R. Maples, a death row inmate in Alabama, must have been grateful when lawyers from the firm agreed to represent him without charge. But the assistance he got may turn out to be lethal.

Please note: that last sentence originally appeared in the august pages of the Times. Despite its tabloid tone — we can imagine an announcer for Inside Edition intoning darkly, “the assistance he got may turn out to be lethal” — it did not appear first in Above the Law. [FN1]

So how did S&C put a man’s life in jeopardy? Let’s descend into the mailroom at 125 Broad Street….

Liptak explains:

When an Alabama court sent two copies of a ruling in Mr. Maples’s case to the firm in New York, its mailroom sent them back unopened.

One envelope had “Return to Sender — Left Firm” written across the front along with a stamp that said “Return to Sender — Attempted Not Known.” The other was stamped with slightly different language: “Return to Sender — Attempted Unknown.”

(Question: Does S&C, like some other law firms, have developmentally disabled individuals working in its mailroom? It’s a nice idea, but it doesn’t always work out well.)

Two associates handling Mr. Maples’s case had indeed left the firm, but it seems that no one bothered to tell the court or the mailroom that new lawyers there had stepped in. By the time Mr. Maples’s mother called, her son’s time to appeal had run out.

Why weren’t substitutions of counsel or appearances for the new attorneys filed? Do the former S&C associates have departure memos or “memos to file” to show that they properly transitioned these cases to their successors? If not — not good….

Then again, perhaps it’s partly S&C’s fault, in treating its departed associates like ghosts. “Attempted Not Known” or “Attempted Unknown”? That’s a pretty cold way to characterize people who gave you thousands of hours of their lives.

The firm’s name did not appear on the papers it had submitted in Alabama. The reason for that is not clear, but it may have been to avoid offending corporate clients. It certainly added to the confusion in the mailroom.

This seems… odd. Large law firms routinely represent criminal defendants in pro bono matters, and their clients don’t seem to protest (at least as far as we know). If law firms brag about representing terrorist suspects in Guantanamo, as many of them do, why would garden-variety murderers present such a big image problem?

To its credit, although it’s probably small consolation to Cory Maples’s mother, Sullivan & Cromwell is doing its best to fix the situation. After losing in the lower courts, both federal and state, S&C has hired a Supreme Court specialist — former Solicitor General Gregory Garre, now at Latham & Watkins — to file a certiorari petition.

Will Greg Garre succeed in getting SCOTUS to take the case? If anyone can do it, Garre can. He’s a talented and experienced Supreme Court litigator, with about 30 arguments under his belt. He clerked for the late Chief Justice Rehnquist and served as SG in a Republican Administration, so conservatives on the Court will give him a fair hearing. And he has personal ties to Chief Justice John Roberts: Garre was Roberts’s l’il buddy, back when they were in private practice together at Hogan & Hartson.

But reading between the lines of Liptak’s piece, it sounds like an uphill battle, even for Garre:

Last month, Mr. Garre asked the justices to hear the case. The core of his argument — one that might convince a schoolchild if not a federal judge — is that Mr. Maples should not be blamed for a mistake he did not commit.

Variations on Mr. Garre’s argument arrive at the Supreme Court all the time. For the most part, they are rejected, on a theory that is as casually accepted in criminal justice as it is offensive to principles of moral philosophy.

We can already imagine Nino at oral argument, snarling with a touch of disdain: “Many things are offensive to the principles of moral philosophy, Mr. Garre. Is this offensive to the text of the Constitution?”

That’s assuming, of course, that the Court grants cert. The easiest thing for the justices might be to simply deny review.

Either way, we can look forward to some interesting litigation. We might see Maples v. Allen get argued in the Supreme Court — or we might see a complaint filed in trial court, in Maples v. Sullivan & Cromwell.

[FN1] Contrary to what some of you think, we’re actually huge fans of S&C here at Above the Law. Say what you will about S&C, but the firm is not boring; it always makes for good copy. See, e.g., Aaron Charney, Kaavya Viswanathan, and Rodge Cohen.

P.S. Welcome to August, the slow news month. Every story gets covered by every outlet because there’s so little news to go around. When a good story comes along, like this one, journalists swarm over it like a choice piece of trash at Smokey Mountain. Check out all the links below (listed chronologically) — everyone has covered this story.

A Mailroom Mix-Up That Could Cost a Life [New York Times]
S&C’s Mail Room Mix-up Leads to Life-and-Death Cert Petition [ABA Journal]
A Goof-Up at S&C Might Lead to Big Consequences [WSJ Law Blog]
Latham Takes Baton From S&C in Botched Death Penalty Case [Am Law Daily]

Earlier: Sullivan & Cromwell’s Life-or-Death Mistake? Leading law firm blows deadline in death penalty case.


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