SCOTUS Stays

Famous for dismissing, out of hand, capital cases that demonstrate even the most blatant miscarriages of justice, the Supreme Court of the United States has granted three stays of execution in the last few weeks.

What is the message coming from on high?

On March 21st the Supreme Court of the United States (this being the USA they of course have an acronym: SCOTUS, like POTUS) granted a stay of execution to Cory Maples, currently on death row in Alabama, and agreed to hear his appeal. The blue-chip law firm Sullivan & Cromwell, that was defending Maples, had failed to notify the court that the individual lawyers representing him had left the firm. Therefore, when the Alabama court sent documents to Sullivan & Cromwell notifying them that Cory’s appeals had been denied, they were ‘returned to sender’ with no further information. Neither Sullivan & Cromwell nor Cory’s local Alabama lawyer followed up. Because of their failures his appeals ran out. It was only when Cory’s mother asked what was going on that anyone noticed. This sort of procedural error is by no means unheard of in a death penalty case but the Supreme Court deemed it enough of an error to warrant a review.

Then, on Monday April 4th, SCOTUS granted an appeal to Daniel Cook, whose case I blogged about previously. Cook had represented himself at trial because his lawyer was frequently drunk, and always incompetent. Cook didn’t present any mitigation evidence of the frequent sexual and physical abuse that he suffered throughout his childhood at the hands of several family members. The prosecuting attorney on the case has since signed a statement saying that if he had known about Daniel’s abuse and mental health disorders he would not have sought the death penalty in the case. But by then, of course, it was too late. The judge and jury had made up their minds and sentenced Daniel to death. He was due to be killed using pentobarbital, a drug untested in executions. Justice Anthony Kennedy granted the stay and referred the appeal to the full court, who will next decide whether or not to hear the appeal.

Finally, on Tuesday April 5th Cleve Foster, who has been on death row in Texas since 2004, was also granted a stay. A former Army recruiter and war veteran, Cleve was convicted for killing a 28 year old Sudanese immigrant. Foster has always maintained his innocence and, as is common in death penalty cases, his lawyers raised multiple other issues in his petition requesting a stay of execution, including ineffective assistance of counsel. Cleve was also due to be executed to the untested Pentobarbital after the Texas prison officials announced the change from sodium thiopental, of which there is a US shortage in part the result of campaigning and litigation by Reprieve and other groups.

A claim of ‘Ineffective Assistance of Counsel’ (IAC) is one of the most commonly raised in death penalty cases. Many, many petitions for relief in capital cases land at the gates of the Supreme Court every week, most with some glaring example or another of dreadful legal representation. As is often the case the justices offered no reason for agreeing to hear the Maples case and granting stays in the other two. We know, though, that the court must consider a case to answer legal questions that it feels face the nation as a whole because the decision they make will then set precedent.

I asked Adam Liptak, New York Times’ Supreme Court correspondent, for his opinion on the justices’ recent decisions. “It’s hard to say…” he told me in an email. “The court seems ambivalent about what to do about bad and sometimes appalling representation in capital and other cases. On the one hand, the justices are good lawyers and have no patience for bad ones. On the other, they are often highly formalistic and willing to entertain IAC challenges in only limited circumstances.”

Sadly, according to Liptak, though these stays are positive for the individual cases, it is unlikely that they represent a sea-change in SCOTUS’ attitudes towards the death penalty as a whole. “At most, it’s possible that the court will make actually executing people convicted of capital crimes a little harder,” he said.