The Eleventh Circuit Court of Appeals remanded the death sentence conviction of Vernon Madison to the Alabama courts for a proper determination of his Batson objection. Madison who is African American has had three trials for the murder of a White police officer. The first trial was reversed for Batson error. In Batson v. Kentucky the Supreme Court set a three step procedure to deal with claims of using race as a determinate in jury selection. First the party making the claim must make a prima facie case that the opposing party used race in making peremptory strikes. Second the other party must give a race neutral explanation of the strikes. Finally the objecting party must prove purposeful racial discrimination.

In Madison’s third trial the court denied his Batson objection after the defense made its initial prima facie case and without the prosecutor giving any race neutral explanation, saying that the defense had not proved “bias on the part of the State.” But at that stage the defense is not required to prove bias. It is only required to make a prima facie case. Among the factors that a court must look to in determining whether a prima facie case has been made are the prosecutor’s pattern of strikes against black jurors, the prosecutor’s questions and statements during voir dire examination, the failure of a prosecutor to ask meaningful questions to the struck jurors, and whether or not the case is racially or ethnically sensitive,” and evidence of past discrimination in jury selection. Here the appellate court found sufficient evidence that the defense presented a prima facie case. The venire consisted of 60 potential jurors. Fifteen of them were African American. Two of the African Americans were excused for cause. The prosecutor used six of his eighteen peremptory challenges to challenge African Americans. He did not ask any of them significant questions and he failed to voir dire three of them. It was a racially sensitive case since Madison is African American and he is accused of killing a White police officer.

For these reasons the appellate court found that a prima facie case had been made and remanded the case to the state courts to complete the Batson process.

Cory R. Maples was convicted of murder and sentenced to death in Alabama. Alabama does not pay post conviction attorneys. It relies upon pro bono attorneys, generally from large firms out of state. Some defendants never get pro bono attorneys and therefore remain unrepresented. Maples was represented by two New York attorneys associates with the firm of Sullivan & Cromwell, Jaasai Munanka and Clara Ingen-Housz. Alabama law required that Munanka and Ingen-Housz have local counsel who is supposed to fully participate in the case. It also requires that Munanka and Ingen-House be admitted post hac vice to the Alabama bar. John Butler of Huntsville agreed to serve as local counsel but he limited his participation to moving the admission of the New York counsel, pro hac vice.

They filed a motion for post conviction relief under Alabama Rule of Criminal Procedure 32, alleging incompetence of trial counsel. Before the motion was decided both New York attorney left the firm and were unable to continue representing Maples. Neither attorney notified Maples or the court of the change. Notice of the denial of the Rule 32 motion was sent to all counsel. The copies sent to Sullivan & Cromwell were returned, recipient unknown. Butler assumed Munanka and Ingen-Housz received notice and ignored his notice. The clerks’s office made no further attempt to find Ingens-Housz and Munanka. As a result Maples lost his chance to appeal the denial of the Rule 32 motion. By the time Maples found out about the failure to file an appeal it was too late. His motion to file a late appeal was denied. The Alabama Court of Criminal Appeals, the Alabama Supreme Court, the Federal District Court and the Eleventh Circuit Court of Appeal all refused to give him relief. Finally the Supreme Court last week reopened the case. It ruled that while the normal rule is that since attorneys act as agents for their clients the failure of an attorney to meet a deadline is attributed to the client, in this case since the attorneys abandoned Maples they were no longer working as his agents. Furthermore since Maples had no way of knowing that he had been abandoned by his attorneys he could not be held responsible for failure to comply with the deadline for an appeal of the Rule 32 motion.

The Supreme Court remanded the case to determined if he had been prejudiced by the failure to file an appeal. Considering that Maples’ inexperienced trial attorneys got $40 per hour for in court time and $20 per hour for out of court time with a $1000 cap on out of court time it is likely that his new appellate counsel can find incompetence. But then again the way the lower courts treated him he may have problems.

I have seen no evidence that Munanka, Ingen-Housz and Butler have been reprimanded by the Bar for abandoning their client. I hope a civil suit is being filed.

Sullivan & Cromwell