The United States Supreme Court heard oral argument yesterday in Maples v. Thomas, a case of shocking legal malpractice, incompetence, failure and carelessness.  Some things surprise. Some things don’t.

Via the New York Times :

When an Alabama court sent two copies of a ruling in Mr. Maples’s case to the New York offices of the law firm, Sullivan & Cromwell, its mailroom sent them back unopened and marked “Return to Sender.” A court clerk in Alabama filed the returned envelopes and did nothing more.

Mr. Maples’s deadline to appeal the ruling came and went, and so far every court to hear his case has said, in effect, tough luck.

Cory Maples was sentenced to death.

The ruling came in response to a filing by two lawyers from Sullivan & Cromwell, both associates, who argued that Mr. Maples’s trial lawyers had been ineffective. But the associates had left the firm by the time the state court ruled, and neither they nor the firm had informed the court or, seemingly, the firm’s own mailroom.

That can happen, you know, because they had other things on their mind besides the life of Cory Maples. The argument before the Supremes was that Sullivan & Cromwell abandoned its client, leaving him effectively unrepresented after he thought he hit the jackpot by capturing the interest of such a big time, high powered law firm.  Some jackpot, huh?

But the reception at SCOTUS was curious.  Justice Alito, who never met a criminal defendant who didn’t touch his cold, hard heart, in a creepy way, went soft.

“Mr. Maples has lost his right to appeal through no fault of his own,” Justice Alito said, “through a series of very unusual and unfortunate circumstances.”

Apparently there is a line below which an execution shouldn’t happen.

Justice Alito, for instance, pressed John C. Neiman, Alabama’s solicitor general, about why the state had opposed Mr. Maples’s efforts to have the deadline waived instead of addressing his claims on the merits.

“Why push this technical argument?” Justice Alito asked.

Mr. Neiman did not give a direct answer.

The inner-prosecutor still believed that the answer to such clearly stupid mistakes was to exercise the discretion to undo the damage.  Noblesse oblige, and get this ugly mess off our table.  Let Cory Maples have his appeals, as should any person sentenced to death, and then execute him.

But Justice Antonin Scalia took the principled approach of adhering to the glory of procedure.

“Once you are in court and you have a lawyer, it’s up to your lawyer to follow what goes on in the court,” Scalia said. “That’s the assumption of the federal rules. And it seems to me a perfectly reasonable assumption. And I’m not about to hold that they are unconstitutional simply because an extraordinary requirement of notice . . . has gone awry.”

The notice box on the list was checked.  Nothing more to do here.  As Nino has made clear before, there’s no constitutional prohibition against executing an innocent person, as long as he’s been given all the due process he can afford.  Stercus accidit.

As if the handling at S&C wasn’t ugly enough, the exercise of prosecutorial discretion, though not quite what Justice Alito would have preferred, arose during argument.

When the deadline for appeals had passed, an Alabama prosecutor wrote directly to Mr. Maples in prison to tell him so, Mr. Garre said, “which would have been unethical if the state had known or believed that he was represented by counsel.”

Chief Justice John G. Roberts Jr. seemed to find that letter both significant and offensive.

“Why did he do it?” Chief Justice Roberts asked. “Just gloating that the fellow had lost? What was the point of it? He must have thought there was a problem, right?”

A problem?  That the lawyers for a man sentenced to death had neglected to file notice of appeal on time.  Yeah, that’s a problem.  It’s hard to put one over on a justice of the Supreme Court of the United States.

The tenor of argument certainly suggests that the Court isn’t about to let Cory Maples be put to death because a law firm, some lawyer, some clerks and a court system, dropped the ball.  That this is even a question shocked the conscience.

But Justice Scalia’s point, that it remains constitutional to execute innocent people as long as some clerk sent the letter, is the bottom line.  You would think that nobody wants an innocent person put to death.  You would think.