| 00:00:26 |
MR. GARRE, -
CHIEF JUSTICE, AND MAY IT PLEASE THE COURT: TWO FACTORS DISTINGUISH THIS CASE FROM THOSE IN WHICH THE COURT HAS FOUND CAUSE LACKING TO EXCUSE A DEFAULT:...
|
| 00:01:42 |
MR. GARRE, -
THAT -- THAT'S RIGHT, MR. CHIEF JUSTICE. I WOULD COUPLE THAT, THOUGH, WITH THE FACT THAT THE STATE INITIALLY SET UP A SYSTEM FOR THE REPRESENTATION OF...
|
| 00:01:58 |
MR. GARRE, -
GARRE: I THINK -- IF ONLY ONE FROM THE OUT-OF-STATE PRO BONO COUNSEL? CHIEF JUSTICE JOHN G. ROBERTS: RIGHT. MR. GARRE: I THINK THAT WOULD
|
| 00:02:04 |
MR. GARRE, -
BE A DIFFERENT CASE. I THINK WHAT'S REMARKABLE ABOUT THIS CASE IS YOU HAVE BOTH OUT- OF-STATE ATTORNEYS, THE NOTICES COME BACK MARKED "RETURN TO SENDER,...
|
| 00:02:41 |
MR. GARRE, -
GARRE: --THAT'S CORRECT, JUSTICE SCALIA. JUSTICE ANTONIN SCALIA: HE FAILED TO CHECK WITH -- WITH THE NEW YORK LAWYERS WHO WERE WORKING WITH HIM. WHY IS...
|
| 00:02:50 |
MR. GARRE, -
THREE POINTS ON THE LOCAL COUNSEL, YOUR HONOR. FIRST, THE RECORD SHOWS THAT THE NOTICE IS NOT ATTRIBUTABLE TO MR. MAPLES BECAUSE MR. BUTLER HAD DISCLAIMED...
|
| 00:03:09 |
MR. GARRE, -
A COUPLE THINGS ON THE CLERK'S PERSPECTIVE. FIRST, WE DO THINK THAT IT WAS WELL KNOWN IN ALABAMA THAT, UNDER THIS UNIQUE SYSTEM, OUT- OF-STATE ATTORNEYS...
|
| 00:03:27 |
MR. GARRE, -
THE THINGS, YOUR HONOR. FIRST, WE DO HAVE THE AMICUS BRIEFS, WHICH DISCUSS THAT ANECDOTALLY. I WOULD SAY THAT THE STATE OF ALABAMA IN ITS BRIEF IN...
|
| 00:04:08 |
MR. GARRE, -
MR. GARRE: --WELL-- JUSTICE SONIA SOTOMAYOR: HOW IS HE SUPPOSED TO KNOW THE DIFFERENCE BETWEEN THOSE THAT DO, AND THOSE THAT DON'T? MR. GARRE: --WHAT...
|
| 00:04:15 |
MR. GARRE, -
I THINK THE CLERK WOULD BE IMPUTED WITH KNOWLEDGE, GENERAL KNOWLEDGE OF THE SYSTEM. BUT BEYOND THAT, WHAT THE CLERK KNOW -- KNEW WAS THIS: HE KNEW THAT...
|
| 00:04:43 |
MR. GARRE, -
MR. GARRE: --OF COURSE. BUT THE POINT IS-- JUSTICE ANTONIN SCALIA: HE DIDN'T PERFORM THAT FUNCTION. MR. GARRE: --IN
|
| 00:04:51 |
MR. GARRE, -
THIS CASE THE LOCAL COUNSEL DIDN'T PERFORM AS A MAIL DROP AND THAT WAS INTENTIONALLY SO. HIS OWN AFFIDAVIT MAKES THAT CLEAR. AND I THINK WHAT'S IMPORTANT...
|
| 00:05:04 |
MR. GARRE, -
MR. GARRE: --MY POINT WAS THAT ORDINARILY A LOCAL COUNSEL WOULD SERVE AS A MAIL DROP; HE WOULD FORWARD NOTICE. IN THIS CASE MR. BUTLER MADE QUITE CLEAR...
|
| 00:05:23 |
MR. GARRE, -
MR. GARRE: --IT'S IN HIS AFFIDAVIT, YOUR HONOR, THE PETITION APPENDIX PAGE 256. JUSTICE ANTONIN SCALIA: HIS AFFIDAVIT AFTER -- AFTER THE FACT, RIGHT?...
|
| 00:05:30 |
MR. GARRE, -
THAT'S RIGHT, YOUR HONOR. JUSTICE ANTONIN SCALIA: DID -- DID HE TELL THE CLERK OF THE COURT THAT THAT WAS THE CASE?
|
| 00:05:35 |
MR. GARRE, -
MR. GARRE: HE DID NOT. JUSTICE ANTONIN SCALIA: YOU KNOW, YOU KNOW, I'M COUNSEL OF RECORD. HE'S THE COUNSEL OF RECORD, RIGHT? I'M COUNSEL OF RECORD,...
|
| 00:05:48 |
MR. GARRE, -
THE CLERK. BUT THE STATE ITSELF, YOUR HONOR-- JUSTICE ANTONIN SCALIA: EXTRAORDINARY.
|
| 00:05:53 |
MR. GARRE, -
MR. GARRE: --MUST NOT HAVE VIEWED HIM AS A MEANINGFUL PLAYER, BECAUSE WHEN THE DEFAULT AT ISSUE IN THIS CASE OCCURRED THE STATE SENT A LETTER -- FAXED...
|
| 00:06:15 |
MR. GARRE, -
OUT NOTICES TO ALL THREE ATTORNEYS OF RECORD, THE TWO OUT-OF-STATE COUNSEL AND MR. BUTLER. MR. BUTLER DID RECEIVE THE NOTICE. HE DIDN'T DO ANYTHING,...
|
| 00:06:42 |
MR. GARRE, -
MR. GARRE: --HE DID NOT. THE STATE -- AND THIS IS AT PAGE 26 OF THE JOINT APPENDIX -- THE STATE SERVED IT ON HIS OUT-OF- STATE COUNSEL AND NOT MR. ...
|
| 00:07:16 |
MR. GARRE, -
GARRE: I ABSOLUTELY AGREE WITH YOU, JUSTICE GINSBURG. I THINK THAT THAT IS FURTHER EVIDENCE THAT EVERYBODY KNEW THAT MR. MAPLES DIDN'T HAVE ANY LOCAL...
|
| 00:07:34 |
MR. GARRE, -
MR. GARRE: WELL-- JUSTICE ANTONIN SCALIA: THE FEDERAL RULES DON'T -- DON'T REQUIRE NOTICE, DO THEY. MR.
|
| 00:07:39 |
MR. GARRE, -
GARRE: --THE CONSTITUTION DOESN'T SAY THAT EXPLICITLY. JUSTICE ANTONIN SCALIA: AND THE FEDERAL RULES DON'T SAY IT. YOU DON'T HAVE TO GIVE NOTICE IN ...
|
| 00:07:46 |
MR. GARRE, -
A POST-CONVICTION ORDER IN A CAPITAL CASE WOULD AT LEAST IMPLICATE A DUE PROCESS INTEREST IN RECEIVING NOTICE, THAT IT'S REASONABLE-- JUSTICE ANTONIN...
|
| 00:08:00 |
MR. GARRE, -
THINK UNDER THE-- JUSTICE ANTONIN SCALIA: --NO, I MEAN, IT'S EITHER A RULE FOR ALL CRIMINAL CASES OR IT'S NOT A RULE.
|
| 00:08:04 |
MR. GARRE, -
MR. GARRE: --WELL-- JUSTICE ANTONIN SCALIA: AND IF -- IF IT'S A RULE FOR ALL CRIMINAL CASES, THE FEDERAL RULES ARE UNCONSTITUTIONAL, YOU ARE SAYING....
|
| 00:08:10 |
MR. GARRE, -
CASE SPECIFICALLY TAKES INTO ACCOUNT THE INTERESTS OF THE INDIVIDUAL RECEIVING NOTICE. THERE COULD BE NO GREATER INTEREST OF AN INDIVIDUAL THAN RECEIVING...
|
| 00:08:50 |
MR. GARRE, -
MAPLES DID NOT HAVE AN ATTORNEY THAT WAS SERVING IN AN AGENCY ROLE IN ANY MEANINGFUL SENSE. THAT IS LAID OUT IN THIS MS. DEMOTT AMICUS BRIEF; IT IS...
|
| 00:09:22 |
MR. GARRE, -
THE ORDINARY ROLE OF LOCAL COUNSEL, WHICH WOULD HAVE BEEN TO AT A MINIMUM FORWARD NOTICE IN THE PROCEEDING, WOULD BE A MEANINGFUL RELATIONSHIP. THE...
|
| 00:10:37 |
MR. GARRE, -
I THINK MR. BUTLER -- JUST SIMPLY SAYING, I'M GOING TO ALLOW -- I'M GOING TO FACILITATE YOUR OUT-OF-STATE ATTORNEY TO REPRESENT YOU, BUT THAT'S MY ROLE,...
|
| 00:10:59 |
MR. GARRE, -
WELL, CLEARLY THAT'S RIGHT. JUSTICE ANTONIN SCALIA: AND IF THEY DON'T EXTEND EVEN TO FORWARDING NOTICE, EVEN TO MAKING SURE THAT THE PEOPLE WHO WERE...
|
| 00:11:16 |
MR. GARRE, -
EXACTLY OUR POINT, JUSTICE SCALIA, WHICH IS THAT HE FORSWORE ANY RESPONSIBILITY. THE LAWYER IN THE HOLLAND CASE JUST HAD THOSE RESPONSIBILITIES, TOO....
|
| 00:11:55 |
MR. GARRE, -
THEY KNEW THAT THEY WERE COUNSEL OF RECORD IN THE PROCEEDING. I WILL LET MY -- MY FRIEND ANSWER THAT QUESTION. WHAT WE KNOW, THOUGH, IS THAT WHEN THE...
|
| 00:12:25 |
MR. GARRE, -
MR. GARRE: WELL, I DON'T WANT TO SPEAK FOR MY FRIEND. I DON'T -- THERE IS CERTAINLY NOTHING IN THE RECORD TO -- TO ESTABLISH THAT THEY KNEW THAT THESE...
|
| 00:12:44 |
MR. GARRE, -
YES. JUSTICE STEPHEN G. BREYER: YES, OKAY. MR. GARRE:
|
| 00:12:47 |
MR. GARRE, -
THE VERY ACTIONS IT TOOK, JUSTICE BREYER. JUSTICE STEPHEN G. BREYER: ALL RIGHT. NOW, SO IT'S POSSIBLE -- WE WILL FIND OUT LATER -- THAT THE PROSECUTING...
|
| 00:13:22 |
MR. GARRE, -
MR. GARRE: THAT'S TRUE, JUSTICE BREYER. JUSTICE STEPHEN G. BREYER: SO ALL WE HAVE TO DECIDE IS WHETHER UNDER THESE CIRCUMSTANCES THE STATE ATTORNEY'S...
|
| 00:13:36 |
MR. GARRE, -
RIGHT. AND I THINK THE STATE'S ACTIONS-- JUSTICE ANTONIN SCALIA: DO WE KNOW THAT HE KNEW ALL OF THOSE FACTS? MR. GARRE: --NO,
|
| 00:13:41 |
MR. GARRE, -
JUSTICE SCALIA. JUSTICE ANTONIN SCALIA: OF COURSE WE DON'T KNOW THAT. MR. GARRE: BUT
|
| 00:13:44 |
MR. GARRE, -
WE KNOW -- WE KNOW WHAT ACTION IT TOOK, AND THAT ACTION WAS AN ACTION THAT ASSUMED THAT HE DIDN'T HAVE MEANINGFUL COUNSEL, OR ELSE IT WOULD HAVE BEEN...
|
| 00:14:03 |
MR. GARRE, -
KNOW THAT, JUSTICE KENNEDY. I THINK THE ALABAMA SYSTEM HERE CREATED A SYSTEM IN WHICH IT WOULD ALLOW FOR APPEALS, NOT ONLY IN DIRECT APPEALS, BUT POST-CONVICTION...
|
| 00:14:35 |
MR. GARRE, -
GARRE: THAT'S RIGHT. CHIEF JUSTICE JOHN G. ROBERTS: SO THEIR CONDUCT PRIOR TO THAT TIME WOULD BE ATTRIBUTED TO HIM, RIGHT? MR. GARRE: I THINK THAT'S
|
| 00:14:42 |
MR. GARRE, -
RIGHT. CHIEF JUSTICE JOHN G. ROBERTS: RIGHT. PART OF THEIR CONDUCT WAS SETTING UP THEIR ARRANGEMENT WITH MR. BUTLER WHERE HE WOULD SHOW UP AS COUNSEL...
|
| 00:14:55 |
MR. GARRE, -
THEY WOULD BE ATTRIBUTED. I THINK WHAT YOU ARE LOOKING FOR IS WHETHER THE DEFAULT ITSELF IS ATTRIBUTABLE TO MAPLES. THE NEW YORK -- WHAT THE OUT-OF-...
|
| 00:15:31 |
MR. GARRE, -
DIRECT PROCEEDINGS HAD CONCLUDED. JUSTICE ANTONIN SCALIA: THE DIRECT PROCEEDINGS WERE OVER. HE HAD APPEALED UP TO THE STATE SUPREME COURT. DID HE SEEK...
|
| 00:15:38 |
MR. GARRE, -
TOO? MR. GARRE: HE DID. JUSTICE ANTONIN SCALIA: HE DID. AND THIS WAS A POST-CONVICTION-- MR. GARRE: IT WAS,
|
| 00:15:42 |
MR. GARRE, -
BUT WHEN THE STATE SETS UP THAT SYSTEM AND ALLOWS FOR APPEALS IT CAN'T ARBITRARILY DEPRIVE IT OF AN APPEAL BASED ON THE SORT OF CIRCUMSTANCES HERE....
|
| 00:15:54 |
MR. GARRE, -
OF ANY STATE THAT DOES NOT ALLOW APPEAL IN POST-CONVICTION PROCEEDINGS. JUSTICE ANTONIN SCALIA: IT CAN BE ALLOWED, BUT IT WOULD NOT SEEM TO ME EXTRAORDINARY...
|
| 00:16:34 |
MR. GARRE, -
MR. GARRE: NO. I MEAN, THE STATISTICS THAT I'M AWARE OF ARE THAT HABEAS CLAIMS ARE IN A MATERIAL SENSE OFTEN SUCCESSFUL IN CAPITAL CASES. WE'VE CITED...
|
| 00:16:58 |
MR. GARRE, -
GOING BACK TO THE COURT AND THE CLERK'S ACTIONS HERE, ONE OF THE THINGS THAT EXACERBATED THE CHAIN OF EVENTS HERE WAS THAT YOU HAD AN ORDER WHICH DIRECTED...
|
| 00:17:30 |
MR. GARRE, -
BELIEVE THAT ALABAMA MAY APPOINT THEM. THEY DON'T PROVIDE FOR APPOINTMENT IN ALL CASES. I BELIEVE GEORGIA IS ANOTHER STATE. BUT IN THAT RESPECT, I...
|
| 00:17:38 |
MR. GARRE, -
MAJORITY DO? MR. GARRE: --ABSOLUTELY. JUSTICE SONIA SOTOMAYOR: IN CAPITAL CASES. MR. GARRE: THE VAST MAJORITY
|
| 00:17:42 |
MR. GARRE, -
DO. JUSTICE SONIA SOTOMAYOR: ALL RIGHT. NUMBER TWO, I THOUGHT THERE WERE TWO QUESTIONS IN THIS, IN THIS PART OF YOUR CASE. THE FIRST IS, DON'T WE...
|
| 00:17:56 |
MR. GARRE, -
MR. GARRE: YES. JUSTICE SONIA SOTOMAYOR: --IN A -- TO EXCUSE A PROCEDURAL BAR IN A STATE COURT. MR. GARRE:
|
| 00:18:07 |
MR. GARRE, -
RIGHT. AND THAT IS-- JUSTICE SONIA SOTOMAYOR: SO WE HAVE TO DECIDE FIRST WHETHER WE EXTEND HOLLAND TO THIS SETTING. MR. GARRE: --WELL,
|
| 00:18:13 |
MR. GARRE, -
I THINK THEY'RE INDEPENDENT GROUNDS. IF THE COURT CONCLUDES THAT THE STATE'S OWN ACTIONS-- JUSTICE SONIA SOTOMAYOR: THAT'S THE DUE PROCESS. I'M TALKING...
|
| 00:18:25 |
MR. GARRE, -
MR. GARRE: --WELL-- JUSTICE SONIA SOTOMAYOR: WILL WE EXTEND HOLLAND TO THIS TYPE OF SITUATION. MR. GARRE: --I DON'T -- I
|
| 00:18:32 |
MR. GARRE, -
DON'T -- I JUST WANT TO BE CLEAR ON THIS. THERE ARE INDEPENDENT GROUNDS. IF THE COURT CONCLUDES THAT THE STATE'S ACTION-- JUSTICE SONIA SOTOMAYOR: YES,...
|
| 00:18:38 |
MR. GARRE, -
MR. GARRE: --BUT WITH RESPECT TO THE ATTORNEYS, THAT'S RIGHT. JUSTICE SONIA SOTOMAYOR: YES. JUSTICE ANTONIN SCALIA: WHAT IS THE LINE, MR. GARRE, BETWEEN...
|
| 00:18:46 |
MR. GARRE, -
IT WOULD BE THE LINE ESTABLISHED BY AGENCY LAW GOING BACK TO JUSTICE STORY'S TIME. JUSTICE ANTONIN SCALIA: SO IF HIS LOCAL COUNSEL SIMPLY GOOFED IN NOT,...
|
| 00:19:02 |
MR. GARRE, -
IT'S ACTUALLY MORE OF A SITUATION WHERE HE DISCLAIMED ANY MEANINGFUL ROLE AT THE OUTSET. I THINK, YOU KNOW, THE REAL ABANDONMENT GOING ON HERE WAS THE...
|
| 00:19:27 |
MR. GARRE, -
COURT COULD. JUSTICE SAMUEL ALITO: AND DOES THE RECORD SHOW THAT THEY DID NOT REPRESENT MR. MAPLES, THAT THIS WAS DONE PURELY BY THE TWO ATTORNEYS?...
|
| 00:19:38 |
MR. GARRE, -
NOT A FINDING, BUT WE THINK THAT'S THE BETTER READING OF THE RECORD, AND I AM HAPPY TO EXPLAIN WHY. BUT MOST IMPORTANTLY, WE THINK IT'S IRRELEVANT WHETHER...
|
| 00:20:35 |
MR. GARRE, -
THINK ONE WOULD ORDINARILY EXPECT THAT. AND WE ARE NOT CONDONING THE ACTIONS HERE. I WOULD SAY THAT AT THE OUTSET OF THIS LITIGATION THERE WERE INDIVIDUALS...
|
| 00:20:52 |
MR. GARRE, -
WE KNOW IS WHAT MR. DE LEEUW HAS SAID, WHICH IS THAT HE WAS INVOLVED IN THE CASE AT SOME POINT. IT'S NOT CLEAR WHAT HIS INVOLVEMENT WAS. AT THE ORAL...
|
| 00:21:22 |
MR. GARRE, -
BE APPROPRIATE, YOUR HONOR. OF COURSE, WE THINK THE COURT SHOULD FIND THAT THE HOLLAND -- THE HOLLAND EXCEPTION, OR MORE PARTICULARLY-- JUSTICE SONIA...
|
| 00:22:07 |
MR. GARRE, -
MR. GARRE: --THAT'S RIGHT. THERE ARE THOSE DISTINCTIONS. OUR POINT IS THAT HOLLAND RECOGNIZES THAT ATTORNEY CONDUCT THAT AMOUNTS TO ABANDONMENT IS EXTERNAL...
|
| 00:23:11 |
MR. GARRE, -
ARE CONFLICTS OF INTEREST HERE. THEY ARE LAID OUT IN THE LEGAL ETHICS BRIEF. THE SULLIVAN AND CROMWELL ATTORNEYS WERE REPRESENTING MR. MAPLES UP THROUGH...
|
| 00:23:44 |
MR. GARRE, -
KNOW THAT THEY WERE NOT. JUSTICE RUTH BADER GINSBURG: WE KNOW THAT THE TWO WHO WERE LISTED OF AS COUNSEL OF RECORD WERE NOT REPRESENTING HIM AND THEY...
|
| 00:23:51 |
MR. GARRE, -
WERE NOT COUNSEL OF RECORD. MR. MAPLES NEVER AGREED TO HAVE ANYONE ELSE REPRESENT HIM IN A WAY THAT COULD BIND HIM. THE ALABAMA COURT SPECIFICALLY FOUND...
|
| 00:24:13 |
MR. GARRE, -
WE ASKED-- JUSTICE ANTONIN SCALIA: YOU CAN SAY, WE DON'T HAVE THESE FACTS; WELL, SEND -- SEND IT BACK SO I CAN -- NO, YOU SHOULD HAVE GOTTEN THE FACTS...
|
| 00:24:28 |
MR. GARRE, -
PETITION DID INCLUDE A REQUEST FOR AN EVIDENTIARY HEARING. THE THINK THE PROBLEM IS THAT BOTH THE DISTRICT COURT AND THE COURT OF APPEALS SHORT-CIRCUITED...
|
| 00:24:58 |
MR. GARRE, -
WE'VE ARGUED-- JUSTICE ANTONIN SCALIA: WASN'T IT -- WASN'T IT FIRST MADE IN THE -- IN THE REQUEST FOR REHEARING? MR.
|
| 00:25:03 |
MR. GARRE, -
GARRE: --I THINK EXPLICITLY. NOW, WE THINK -- TWO POINTS ON THIS-- JUSTICE ANTONIN SCALIA: THAT'S RATHER LATE. MR. GARRE: --WE THINK THAT
|
| 00:25:09 |
MR. GARRE, -
ALL ALONG THEY ARGUED THAT THE ATTORNEYS' ACTIONS ESTABLISHED CAUSE. THAT'S WHY BOTH THE DISTRICT COURT AND THE COURT OF APPEALS ADDRESSED THAT AND...
|
| 00:25:24 |
MR. GARRE, -
THINK THIS FALLS SQUARELY WITHIN THE RULE OF ESCONDIDO, WHERE -- WHERE A PARTY MAKES THE CLAIM BELOW -- WHICH THEY MADE THE CLAIM HERE THAT THE ATTORNEYS'...
|
| 00:26:12 |
MR. NEIMAN JR., -
MR. NEIMAN JR.: THANK YOU, MR. CHIEF JUSTICE, AND MAY IT PLEASE THE COURT: IN TRYING TO SIDESTEP COLEMAN, MAPLES IS ADVOCATING AT LEAST THREE PRINCIPLES...
|
| 00:26:46 |
MR. NEIMAN JR., -
THAT CASE, YOUR HONOR, THERE WOULD BE A MUCH MORE SUBSTANTIAL ARGUMENT. CHIEF JUSTICE JOHN G. ROBERTS: YEAH, I KNOW IT WOULD BE MORE SUBSTANTIAL. THAT'S...
|
| 00:27:10 |
MR. NEIMAN JR., -
I DON'T THINK THAT THE RETURN OF ALL THREE NOTICES WOULD JUSTIFY NECESSARILY A FINDING OF ABANDONMENT IN TOTO BY ALL THE LAWYERS. IT COULD SIGNIFY A...
|
| 00:27:38 |
MR. NEIMAN JR., -
MR. NEIMAN JR.: YES, YOUR HONOR. JUSTICE ANTONIN SCALIA: BUT DOES THAT NECESSARILY MEAN THAT THEY'VE ABANDONED THE CASE? IT JUST MEANS YOU GOT THE WRONG...
|
| 00:27:45 |
MR. NEIMAN JR., -
NEIMAN JR.: THAT'S CORRECT, YOUR HONOR. JUSTICE ANTONIN SCALIA: ISN'T THAT THE ONLY THING IT MEANS FOR SURE, THESE LAWYERS ARE NO LONGER HERE AT SULLIVAN...
|
| 00:27:51 |
MR. NEIMAN JR., -
NEIMAN JR.: YES, YOUR HONOR. JUSTICE ANTONIN SCALIA: I DON'T KNOW HOW THAT WOULD BE AN INDICATION OF ABANDONMENT. CAN'T YOU SWITCH A LAW FIRM AND KEEP...
|
| 00:27:58 |
MR. NEIMAN JR., -
NEIMAN JR.: ABSOLUTELY, YOUR HONOR, ALTHOUGH THE PRESUMPTION GENERALLY IS THAT THE CLIENT STAYS WITH THE FIRM. BUT THAT'S CORRECT. THE CLIENT CERTAINLY...
|
| 00:28:33 |
MR. NEIMAN JR., -
CORRECT, YOUR HONOR. THEY CERTAINLY WERE PREPARING FOR AN EVIDENTIARY HEARING, AND IN FACT, CONTRARY TO MY FRIEND'S STATEMENTS ABOUT WHAT WE KNOW...
|
| 00:29:19 |
MR. NEIMAN JR., -
YOUR HONOR, I RESPECTFULLY DISAGREE WITH THAT ASSESSMENT OF HOW WE CAN READ THE SERVICE OF THE RULE 32 ANSWER. UNDER ALABAMA LAW, A PLEADING OR AN ORDER...
|
| 00:29:59 |
MR. NEIMAN JR., -
NEIMAN JR.: THAT'S CORRECT, YOUR HONOR. THE STATE'S ATTORNEY IN THAT -- IN THAT INSTANCE DECIDED TO SEND A LETTER ONLY TO MR. MAPLES. JUSTICE RUTH BADER...
|
| 00:30:33 |
MR. NEIMAN JR., -
THE RECORD DOES NOT REVEAL WHY MR. HAYDEN DECIDED TO SEND THE LETTER TO MR. MAPLES ALONE-- JUSTICE ANTONIN SCALIA: OF COURSE, HE DIDN'T HAVE TO SEND...
|
| 00:30:43 |
MR. NEIMAN JR., -
NEIMAN JR.: --THAT'S CORRECT, YOUR HONOR. JUSTICE ANTONIN SCALIA: I MEAN, IT WAS JUST: BY THE WAY, YOUR TIME HAS EXPIRED. I MEAN, THIS IS NOT -- WHAT...
|
| 00:30:54 |
MR. NEIMAN JR., -
THAT'S CORRECT, YOUR HONOR. JUSTICE ANTONIN SCALIA: SO HE JUST MADE THIS EXTRANEOUS VOLUNTEERED STATEMENT TO MAPLES INSTEAD OF TO HIS LAWYER. I DON'T...
|
| 00:31:05 |
MR. NEIMAN JR., -
POINT IN TIME, THE STATE CASE WAS OVER. SO IT WAS HARDLY CLEAR IF MR. HAYDEN WAS GOING TO DO SOMETHING THAT HE DIDN'T HAVE TO DO UNDER THE RULES. CHIEF...
|
| 00:31:23 |
MR. NEIMAN JR., -
YOUR HONOR, HE CERTAINLY WAS AWARE THAT MR. MAPLES' LAWYERS HAD FAILED TO FILE A NOTICE OF APPEAL. BUT -- AND HIS LETTER REVEALS THAT HE IS VERY AWARE--...
|
| 00:31:44 |
MR. NEIMAN JR., -
HONOR, I AGREE WITH MY FRIEND THAT WE DON'T HAVE STATISTICS ON THAT FRONT. I THINK IT'S FAIR TO ASSUME THAT FOR THE MOST PART, WHEN A RULE 32 PETITIONER...
|
| 00:31:58 |
MR. NEIMAN JR., -
MR. NEIMAN JR.: THAT'S CORRECT, YOUR HONOR, ALTHOUGH THERE ARE SOME INSTANCES IN WHICH A CAPITAL PETITIONER OR SOMEONE ON DEATH ROW DECIDES THAT THEY...
|
| 00:32:26 |
MR. NEIMAN JR., -
YOUR HONOR. I THINK THAT THE NOTICE SAYING THAT THE PERSON'S NO LONGER AT SULLIVAN & CROMWELL INDICATES THAT THE PERSON IS NO LONGER AT THE FIRM. I GUESS...
|
| 00:32:44 |
MR. NEIMAN JR., -
MR. NEIMAN JR.: --THAT'S CORRECT, YOUR HONOR. JUSTICE ANTHONY KENNEDY: ONE OTHER THING WHILE I'M TALKING WITH YOU, AND IT'S A TANGENTIAL POINT, PERHAPS....
|
| 00:33:23 |
MR. NEIMAN JR., -
THINK THE LAW MAKES THAT CRYSTAL CLEAR, YOUR HONOR. BUT I CERTAINLY KNOW OF NO LAW THAT SUGGESTS THAT THE ATTORNEY GENERAL OF ALABAMA NECESSARILY HAS...
|
| 00:33:42 |
MR. NEIMAN JR., -
AWARE, YOUR HONOR. JUSTICE SONIA SOTOMAYOR: COUNSEL, COULD WE GO BACK TO THE CHIEF JUSTICE'S INITIAL QUESTION? LET'S ASSUME THE TWO LETTERS WENT TO...
|
| 00:34:09 |
MR. NEIMAN JR., -
YOUR HONOR. IT -- IT WOULD DEPEND ON WHY THE LETTERS CAME BACK FROM SULLIVAN & CROMWELL. JUSTICE SONIA SOTOMAYOR: WELL, WE KNOW THAT BOTH LAWYERS IN...
|
| 00:34:35 |
MR. NEIMAN JR., -
THE CAUSE ARGUMENT IN THAT CASE, YOUR HONOR, WOULD BE SUBSTANTIALLY STRONGER AS I SAID BEFORE IN PART BECAUSE, DEATH, OF COURSE, IS AN EXTERNAL FACTOR....
|
| 00:34:54 |
MR. NEIMAN JR., -
JR.: --YOUR HONOR, I THINK WE WOULD BE PREPARED TO RECOGNIZE THAT IN CERTAIN CASES AN ABANDONMENT OF A CLIENT BY AN ATTORNEY WOULD TERMINATE THE AGENCY...
|
| 00:35:15 |
MR. NEIMAN JR., -
CORRECT. CHIEF JUSTICE JOHN G. ROBERTS: FROM YOUR PERSPECTIVE. MR. NEIMAN JR.: YES,
|
| 00:35:18 |
MR. NEIMAN JR., -
YOUR HONOR. BUT ONE THING I WANT TO STRESS IS THAT MY FRIEND HAS SUGGESTED THAT AN EVIDENTIARY HEARING OR FURTHER EVIDENTIARY PROCEEDINGS ARE NECESSARY...
|
| 00:35:55 |
MR. NEIMAN JR., -
MR. NEIMAN JR.: YOUR HONOR-- JUSTICE RUTH BADER GINSBURG: SO THERE WAS NO ONE FROM SULLIVAN & CROMWELL OTHER THAN THOSE TWO ON THE RECORD. SO ON THE...
|
| 00:36:09 |
MR. NEIMAN JR., -
DISAGREE WITH THAT ASSESSMENT, YOUR HONOR. JUSTICE ANTONIN SCALIA: WELL, THE ARGUMENT IS THAT ON THE RECORD OR NOT IS DETERMINATIVE FOR THE OUT-OF-TOWN...
|
| 00:36:33 |
MR. NEIMAN JR., -
HONOR. THERE IS THAT INCONSISTENCY IN MAPLES' ARGUMENT. ON THE ONE HAND MAPLES SAYS THAT BUTLER -- OR THAT THE OTHER LAWYERS AT SULLIVAN & CROMWELL...
|
| 00:37:46 |
MR. NEIMAN JR., -
HONOR, I SUSPECT THAT IN THOSE CIRCUMSTANCES I MIGHT WELL PERSONALLY DO SOMETHING ELSE. BUT, OF COURSE, MY PREROGATIVES AS SOLICITOR GENERAL OF ALABAMA...
|
| 00:38:40 |
MR. NEIMAN JR., -
YOUR HONOR, I DISAGREE. THE -- AS FAR BACK AS MULLANE, THIS COURT HAS SAID THAT AT THE END OF THE DAY ACTUAL NOTICE TO A PARTY, PARTICULARLY WITHIN THE...
|
| 00:40:09 |
MR. NEIMAN JR., -
NEIMAN JR.: --THERE ARE SEVERAL RESPONSES, YOUR HONOR. FIRST, AT LEAST AT THE RULE 32 STAGE, THE NOTICE OF APPEAL DEADLINE WAS A JURISDICTIONAL ONE....
|
| 00:40:29 |
Unidentified Speaker, -
NO POSSIBILITY UNDER ALABAMA RULES IN THIS CIRCUMSTANCE? NO EXTENSI JUSTICE SAMUEL ALITO: THERE IS NO POSSIBILITY UNDER ALABAMA RULES FOR AN OUT-OF-TIME...
|
| 00:40:57 |
Unidentified Speaker, -
FOR A GOOD CAUSE OF AN EXTENSION. WITH THE ALABAMA COURT HELD WAS THAT THIS CIRCUMSTANCE IN WHICH THE PERSON HAD COUNSEL OF RECORD, THE HAVE NOT NOTIFIED...
|
| 00:41:16 |
Unidentified Speaker, -
GOES TO MY EARLIER QUESTION. IF THE STATE OF ALABAMA HAD TOLD THE STATE COURT THAT ONLY THE CIRCUMSTANCES, WE THINK THERE SHOULD BE AN APPEAL GRANTED,...
|
| 00:41:46 |
Unidentified Speaker, -
OUT OF TOWN APPEAL? >> YES, THE STATE
|
| 00:41:48 |
Unidentified Speaker, -
DID OPPOSE THE OUT OF TOWN APPEAL. THE STATE PRESS THE PROCEDURAL BAR IN FEDERAL COURT IN THIS CASE. THE STATE HAD EVERY PRODUCT IS TO DO SO IN PART...
|
| 00:42:48 |
Unidentified Speaker, -
ME EARLIER THAT ABANDONMENT IS AN EXCEPTION TO THE STATE GROUNDS. UNDER YOUR VIEW OF THE CASE, COLEMAN WAS NOT NECESSARILY CONTROLLING. >> YOUR HONOR,...
|
| 00:43:01 |
Unidentified Speaker, -
SUGGESTED THAT ABANDONMENT ITSELF IS AN EXHIBITION TO THE DOCTRINE, LED BY CORRECT MY EARLIER ANSWER. ABANDONMENT CAN SOMETIMES ALLOWING COURTS TO DETERMINE...
|
| 00:44:08 |
Unidentified Speaker, -
LAWYERS NOT REPRESENTING YOUR CLIENT AS THE TWO DID, IS THERE SOME OBLIGATION TO TELL THE CLIENT AND THE COURT TO READ -- TO RENT FOR SUBSTITUTIONS. THERE...
|
| 00:44:51 |
Unidentified Speaker, -
HAPPENS HERE NOT -- REPRESENTS CAUSE. THE RECORD IS CLEAR THAT HE HAS ALLEGED THEY ARRANGE FOR THIS TO BE HANDLED BY MR. DELUCA. HE WAS REPRESENTING HIM...
|
| 00:45:18 |
Unidentified Speaker, -
OF ON FACTUAL THING. DID THE STATE'S ATTORNEY KNOW THAT THE LETTERS HAD COME BACK? >> YOUR HONOR, THE RECORD IS
|
| 00:45:27 |
Unidentified Speaker, -
NOT CLEAR ON THAT POINT. I CAN REPRESENT TO THE COURT THAT THE STATE ATTORNEY DID NOT KNOW THAT THE LETTERS HAVE COME BACK. >> DO THEY CHECK THE
|
| 00:45:35 |
Unidentified Speaker, -
DOCKET EVER SO OFTEN TO SEE WHAT HAPPENED? >> MOST ATTORNEYS
|
| 00:45:41 |
Unidentified Speaker, -
HAVE AN OBLIGATION AT SOME POINT TO CHECK THE DOCKET. THAT IS ONE PROBLEM WITH THE POSITION THAT MR. MAPLES HAS TAKEN REGARDING MR. POLAR HERE AND THE...
|
| 00:46:19 |
Unidentified Speaker, -
TO -- WHAT MADE THEM SEND THAT NOTICE DIRECTLY TO MAPLES AND NOT TO THE SULLIVAN AND CROMWELL LAWYERS? >> THIS IS INFORMATION THAT
|
| 00:46:35 |
Unidentified Speaker, -
IS NOT IN THE RECORD. IT IS MY UNDERSTANDING THAT COUNCIL FIGURE OUT WHAT HAD HAPPENED, FIGURED OUT THE APPEAL HAD BEEN MISSED. THEY HAD CALCULATED HOW...
|
| 00:47:05 |
Unidentified Speaker, -
TERMINATED THE RELATIONSHIP BETWEEN MR. MAPLES AND HIS LAWYERS? >> I DON'T THINK
|
| 00:47:10 |
Unidentified Speaker, -
THAT IS AN ACCURATE CHARACTERIZATION OF WHAT HAPPENED IN THIS CASE. >> EVEN IF U.S. AND HE
|
| 00:47:18 |
Unidentified Speaker, -
HAD FIGURED IT OUT, YOU WOULD HAVE TO IN PUKED HIS KNOWLEDGE TO THE CLERK OF COURT TO FIND THE FAULT ON THE PART OF THE STATE THAT IS ALLEGED HERE....
|
| 00:47:32 |
Unidentified Speaker, -
THAN THAT, YOUR HONOR -- >> DID HE TELL
|
| 00:47:35 |
Unidentified Speaker, -
THE CLERK OF COURT HE WAS ONLY GOING TO SEND IT TO MAPLES? >> THE NOTION CAME BACK
|
| 00:47:43 |
Unidentified Speaker, -
TO THE CLARK LONG BEFORE THE ATTORNEY SENT THE LETTER IN THIS CASE. THAT IS AN IMPORTANT POINT BOTH WITH RESPECT TO THE ISSUE OF ABANDONMENT. THE RELEVANT...
|
| 00:48:31 |
Unidentified Speaker, -
ASSUME YOU HAVE BEEN PRACTICING IN YOUR STATE FOR A WHILE. >> YES, YOUR
|
| 00:48:36 |
Unidentified Speaker, -
HONOR. >> HOW FREQUENT IS IT IN
|
| 00:48:38 |
Unidentified Speaker, -
THE ALABAMA SYSTEM THAT LOCAL COUNCIL TAKES THE LABORING OR EVEN AN ACTIVE PARTICIPATION IN THE DEFENSE OR ACTIONS OF A CAPITAL DEFENDANT? GENERALLY,...
|
| 00:49:09 |
Unidentified Speaker, -
IS NOT IN THE RECORD. WE RESPECTFULLY DISAGREE AS A FACTUAL MATTER WITH FACTUAL ASSERTIONS MADE ON THAT FRONT. >> WE HAVE TO SEND
|
| 00:49:20 |
Unidentified Speaker, -
IT BACK. I GUESS WE HAVE TO SAY WHAT THE ROLE IS. WHAT IS THE RULE -- WHAT ABOUT THE ROLE THAT SAYS OR THE ATTORNEYS TO ABANDON THE CLIENTS AND LOCAL...
|
| 00:49:59 |
Unidentified Speaker, -
SEVEN OF THE RULES GOVERNING THE ALABAMA MARK -- THE ALABAMA ARE MADE IT EMPHATICALLY CLEAR THAT THEY -- >> IRRESPECTIVE OF
|
| 00:50:10 |
Unidentified Speaker, -
WHAT THE RULES WERE, HE WOULD HAVE TO SHOW THAT IN THIS STATE IT IS A PRACTICE SUCH THAT THE LOCAL COUNCIL DOES NOT DO MUCH OF ANYTHING ACCEPT FACILITATE....
|
| 00:51:00 |
Unidentified Speaker, -
MATTER, THOSE FACTUAL ASSERTIONS WERE NOT MADE BELOW. IN ORDER FOR THE COURT TO REMAND ON THAT PARTICULAR ISSUE, IT WOULD NOT BE EVERYMAN POUR IN EVIDENTIARY...
|
| 00:51:11 |
Unidentified Speaker, -
IS A LOT DURING THE BREEZE THAT SEEMED TO SAY THAT. >> ONE PROBLEM
|
| 00:51:15 |
Unidentified Speaker, -
MR. MAPLES FACES HERE IS THAT HE HAD THE BURDEN AS THE PRACTITIONER TO MAKE THE FACTUAL ALLEGATIONS THAT HE BELIEVED ESTABLISHED A CAUSE. >> WHEN AN
|
| 00:51:31 |
Unidentified Speaker, -
ATTORNEY IS REPRESENTED BY MORE THAN ONE ATTORNEY, THE NOTICE DOES NOT HAVE TO GO TO ALL OF THEM? >> THAT IS
|
| 00:51:37 |
Unidentified Speaker, -
CORRECT. >> IT CAN ONLY
|
| 00:51:39 |
Unidentified Speaker, -
GO TO ONE. >> YES. >> AS FAR AS
|
| 00:51:42 |
Unidentified Speaker, -
LOCAL COUNSEL KNEW, HE WAS THE ONLY ONE TO RECEIVE NOTICE OF THIS THING, RIGHT? >>
|
| 00:51:46 |
Unidentified Speaker, -
THAT IS CORRECT. >>
|
| 00:51:48 |
Unidentified Speaker, -
IS INCORRECT ORDERS THE NOTICE MISS THE PEOPLE WHO HAVE BEEN SERVED? WITH THE NEW YORK PEOPLE LISTED ON THE NOTICE THAT WHEN TO
|
| 00:51:57 |
Unidentified Speaker, -
BUTLER? >> YES. >> SO HE KNEW HE WAS
|
| 00:51:59 |
Unidentified Speaker, -
NOT THE ONLY ONE GETTING NOTICE. >> THE CC LINE IN
|
| 00:52:06 |
Unidentified Speaker, -
THIS CASE CANNOT ESTABLISH COST AND CANNOT BE DEEMED A STATE INTERFERENCE FOR ANY NUMBER OF REASONS. I SUPPOSE IT COULD ONLY BE HELD TO ESTABLISH CAUSE...
|
| 00:53:12 |
Unidentified Speaker, -
THE PROBLEM IS -- ACCEPT THE ROLE. IT EXISTS. IF A LAWYER SAYS, I DON'T CARE, I WILL NOT DO WHAT THE COURT RULES REQUIRE ME TO DO, WHAT MORE DO YOU NEED...
|
| 00:53:43 |
Unidentified Speaker, -
I SHOULD MAKE A COUPLE POINTS IN RESPONSE TO THAT. AS I UNDERSTOOD THE QUESTION POSED ON THE CC LINE, THAT IS NOT ABOUT ABANDONMENT BUT WHETHER THE CLARK'S...
|
| 00:53:59 |
Unidentified Speaker, -
ABOUT A NOTICE ISSUE. WE ARE TALKING ABOUT THE ABANDONMENT QUESTION. >> IF IT REALLY IS
|
| 00:54:05 |
Unidentified Speaker, -
TRUE, IF BUTLER HAD DECIDED HE WAS QUICK TO DO NOTHING IN THIS CASE AND THAT REPRESENT HIS CLIENT AND NOT BE AN ATTORNEY FOR THE CLIENT, THERE MIGHT...
|
| 00:54:27 |
Unidentified Speaker, -
THESE LAWYERS DID ABANDON THEIR CLIENTS, WOULD THERE BE SOME SANCTION CALLS UPON THEM BY THE BAR? I OFTEN WONDER WHAT WE FIND THAT THERE HAS BEEN AN ADEQUATE...
|
| 00:54:47 |
Unidentified Speaker, -
IT WOULD DEPEND ON WHAT THE ALLEGATIONS ARE. >> HAVE YOU EVER HEARD
|
| 00:54:51 |
Unidentified Speaker, -
OF ANYTHING HAPPENING TO THEM OTHER AND THEN GETTING AND OTHER CAPITAL CASE? >> YOUR HONOR,
|
| 00:54:57 |
Unidentified Speaker, -
I HAVE NOT. CERTAINLY THE RULES PROVIDE THAT A BREACH OF THE RULES AND RESPONSIBILITY GOES AGAINST THE ALABAMA ATTORNEY HERE AND THE NEW YORK. >>
|
| 00:55:09 |
Unidentified Speaker, -
YOU SAID A FEW MOMENTS AGO THAT BUTLER DID MORE THAN YOUR FRIEND SUGGESTED. WHAT MORE DID HE DO. >> OF COURSE, WE DISCUSSED
|
| 00:55:18 |
Unidentified Speaker, -
IN THE BRIEF THE AND DISPUTABLE FACT THAT BUTLER FOUND NUMEROUS THINGS AFTER THE DEFAULT OCCURRED IN THIS CASE. >> WHAT
|
| 00:55:29 |
Unidentified Speaker, -
DID HE DO BEFORE? >> BOWLERS AFFIDAVIT --
|
| 00:55:34 |
Unidentified Speaker, -
IT CERTAINLY DOES NOT SAY I WAS AND IS ONLY TEAS WERE THESE PEOPLE IN OR MOVE FOR THEIR ADMISSION AND NOTHING ELSE. >> WHAT DID THEY DO
|
| 00:55:45 |
Unidentified Speaker, -
MORE THAN THAT? >> IT SAYS ON PAGE 25580
|
| 00:55:51 |
Unidentified Speaker, -
AGREE TO SERVICE LOCAL COUNCILOR -- PAGE 255 A TO AGREE TO SERVICE LOCAL COUNCIL. LET ME WITHDRAW ANY SUGGESTION THAT I HAVE SAID DOLLAR HAD DONE SOMETHING...
|
| 00:56:17 |
Unidentified Speaker, -
ARE YOU SURE? >> MY POINT
|
| 00:56:22 |
Unidentified Speaker, -
IS THAT BUTLER DID NOT AGREE TO MOVE THESE PEOPLE'S ADMISSION. BUTLER SAID HE WOULD BE LOCAL COUNCIL. THE ROLE OF LOCAL COUNCIL IS DEFINED BY ROYAL 7....
|
| 00:56:37 |
Unidentified Speaker, -
THANK YOU, COUNSEL. >> WE AGREE THIS IS A
|
| 00:56:45 |
Unidentified Speaker, -
SILLY CASE. THE FACTS ARE EXTRAORDINARY. OUR POSITION IS SIMPLY UNDER THE ESCORT'S PRECEDENTS, MR. MAPLES HAS ESTABLISHED A CAUSE TO EXCUSE THE DEFAULTS....
|
| 00:57:53 |
Unidentified Speaker, -
TO ADOPT THE STATE OWES A POSITION HE WAS NOT ABANDONED, -- >> WE HAVE A
|
| 00:58:00 |
Unidentified Speaker, -
RECORD OF NOT NOTIFYING MR. MAPLES, NOT NOTIFYING THE COURT. >> WHAT IS TROUBLING
|
| 00:58:08 |
Unidentified Speaker, -
TO ME ABOUT THE ABANDONMENT ARGUMENT IS THAT -- THE FEAR THAT IF THE COURT SAYS ABANDONMENT HIS CAUSE, THERE WILL BE MANY CASES IN WHICH THE ALLEGATION...
|
| 00:58:37 |
Unidentified Speaker, -
PRINCIPLES THAT GO BACK. WORKING THROUGH THE PRINCIPLES ESTABLISHED AND THIS COURT'S DECISION HOW IT WILL BE APPLIED. THE LOWER COURT ISSUED ITS DECISION...
|
| 00:59:18 |
Unidentified Speaker, -
THE ANSWER TO THAT QUESTION. I EXPECTED THIS WOULD BE VERY EXTREME. I THINK THE FACTS HERE ARE ABOUT AS EXTREME -- >> HOW DO WE
|
| 00:59:29 |
Unidentified Speaker, -
DISTINGUISH BETWEEN THAT AND IT MEANT AND SIMPLY A >> WHEN YOU HAVE
|
| 00:59:41 |
Unidentified Speaker, -
COUNCILS OF RECORD OF LEAVING, I THINK THAT IS AN ABANDONMENT PURE AND SIMPLE. WE HAVE LOOKED TO AGENCY PRINCIPLES YOU WANT TO GET INTO THE FACTS. I...
|
| 01:01:17 |
Unidentified Speaker, -
THANK YOU, COUNSEL. >> WE ARE LIVE THIS
|
NOTE: The transcript for this program was compiled from uncorrected Closed Captioning.