October, 20, 2011 at 12:55 P.M. As I was signing out of the public computer at the New York Public Library (NYPL) yesterday, a cyberattack struck against my blogs. I may be prevented, at any time, from writing further at "Against Dark Arts." I will attempt to create alternative Internet locations to continue writing essays, short stories, scripts in the event that I am unable to return to these blogs. For some reason, continuing interference with my television signal is taking place due to hacks from New Jersey. Curiously, I continue to be followed during my walks in Manhattan.
Today, October 21, I was deviated from the NYPL computer and unable to reach Google. I cannot say whether I will be able to return to blogger. Several short stories have been destroyed in manuscript with the obliteration of my hard drive. I will try to duplicate them or to write new ones. Current attacks against my writings may also damage public computers in New York, thus depriving many innocent persons of access to the Internet. ("How censorship works in America" and "Censorship and Cruelty in New Jersey.")
Adam Liptak, "When Fairness and the Law Collide," in The New York Times, October 18, 2011, at p. A18.
"Two weeks ago ... the Supreme Court considered the case of Corey R. Maples, a death row inmate in Alabama whose lawyers" -- the "White Shoe" New York law firm of Sullivan and Cromwell -- "had missed a deadline to file an appeal."
To my knowledge, no ethics action has been brought against the law firm's partners, whose incompetence in this matter may result in the denial of an appeal to a man who may be executed, despite (possibly) his factual innocence or any legally compelling arguments that he may haved raised on appeal.
"Mr. Maples lost his right to appeal," Justice Alito said, "through no fault of his own, through a series of very unusual and unfortunate circumstances." (emphasis added!)
The Supreme Court of the United States of America rejected the appellant's argument that the time limitation should be extended -- this is something which is within the Court's discretion and does not require any change in the law. A system that allows for such outcomes may no longer deserve to be described as a "system of justice." ("What is Law?")
The Court may and probably will allow for the execution, again, of this possibly innocent man -- unless publicity embarrasses the justices into doing the right thing -- because of a procedural error made by his lawyers. Somehow, allowing the defendant to file a civil law suit after his execution seems like an inadequate remedy. ("The Allegory of the Cave.")
Justice Alito is from New Jersey. Justice Alito worked at the same U.S. Attorney's office as Paul W. Bergrin, Esq. and the Hon. Stuart Rabner, to say nothing of New Jersey Governor Christopher Christie. The so-called "Garden State Justice" (What about Scalia?) offers several flawed arguments or rationales to support this harsh, if tentative, conclusion:
" ... a ruling for Mr. Maples, Justice Alito continued, could require the court to adopt principles that would affect 'many, many cases,' and would 'substantially change existing law.' He said he was reluctant to impose new burdens on government officials and allow clients to second guess their lawyers' decisions in order to provide relief to the masses."
The Supreme Court always adopts principles affecting "many, many cases" whenever it decides a case or controversy. The Court can always decide, for example, to extend a period of limitations in the interest of fairness or as a matter of due process, despite its concern for "precendent" -- a concern found missing in Bush v. Gore where the opinion of the Court was expressly made "non-precedential" and resulted in our most non-presidential Chief Executive.
Mr. Alito's position requires that he provide Constitutionally-mandated "relief to the masses." As a matter of fact, I venture to suggest that American judges and justices, like other citizens, are members of the "masses."
The tacit principle adopted in this instance is that, even when fundamental rights to liberty and life are at stake, the justices may decline to reverse or nullify legal error by counsel that damages the rights of litigants, including defendants in capital cases.
The vast majority of litigants affected by this ruling and others like it will be poor and minority persons whose interests seem to concern the Court far less than, say, the free speech rights of corporations. Please see Ronald Dworkin, "The Strange Case of Justice Alito," in The Supreme Court Phalanx: The Court's New Right-Wing Bloc (New York: NYRB, 2008), pp. 21-87.
The Court henceforth may allow men and women to die in order to avoid a floodgate of litigation arriving at the Supreme Court's doorstep. Had the Appellant whose claim was frustrated by legal error been Dick Cheney or Rick Perry, I suspect that the Supreme Court would have viewed the matter differently.
The Supreme Court's role since Marburry v. Madison has been to hear and decide precisely such cases of fundamental individual rights violations. The principle that should apply to future cases is the old-fashioned notion that before a person is executed (as in KILLED) there must be scrupulous attention to the rights of the accused and all procedural protections must be observed. This is to assume, arguendo, the constitutionality of a death penalty which, as Justice Harry Blackmun said: "Cannot be applied fairly in America because of our history of slavery and racism together with the structural unfairness in the criminal justice system."
I concur. Justice Alito's "role" is to protect the rights of litigants, as I say, even litigants whom the justice would not meet, socially, whose humanity is sufficient under the Constitution for them to merit due process rights. This includes persons like Mr. Maples and others who are similarly situated, even if attention to their cases requires the justices to spend a few late nights at the office.
Mr. Alito's touching concern for the unfairness resulting from this legal error by counsel is irrelevant to his duty to ensure respect for Mr. Maples' due process and equal protection rights. I doubt that the Court has fulfilled its solemn obligation to protect this man's rights. ("Manifesto for the Unfinished American Revolution.")
"Playing the game by the rules" is only one of the requirements of justice or due process, according to Professor Ronald Dworkin, a law clerk for Judge Learned-Hand (the favorite conversational partner of Justice Holmes) and a former associate at the now tainted firm of Sullivan and Cromwell:
"Our Constitutional system rests on a particular moral theory, namely, that men [and women] have moral rights against the state. The difficult clauses of the Bill of Rights, like the due process and equal protection clauses, must be understood as appealing to moral concepts rather than laying down particular conceptions; therefore, a court that undertakes the burden of applying these clauses fully as law must be prepared to frame and answer questions of political morality."
Taking Rights Seriously (Cambridge: Harvard U. Press, 1976), p. 147 (emphasis added). (See Justice Brennan's opinion in New York Times v. Sullivan.)
Is it fair, Justice Alito, and does it comport with due process and other Bill of Rights protections to EXECUTE a potentially innocent man denied appellate review only because his lawyer, through no fault of his own, erred?
I submit, respectfully, that it is not Constitutionally permissible for the Court to allow such an injustice and violation of fundamental rights to take place, especially where the penalty of death is involved. The dangerous precendent that may be set is an abdication of the Court's most important obligation -- to protect the rights of the least powerful persons in America.
Please reconsider your reasoning in this matter, Justice Alito.
