Justice Ginsberg wrote the opinion in the Alabama case of  Maples v. Alabama Dept. Corrections

         The Defendant, Cory R. Maples, was charged with and convicted of two murders.  He was sentenced to death.

         The deficiences in his representation began at trial where he was appointed two lawyers who had little experience.  He went through the Alabama trial and appellate process.  Then two volunteer New York lawyers, serving pro bono,  filed his post-trial relief motion in the Alabama courts.  They were representatives of a large firm and asked an Alabama lawyer to obtain permission of the Alabama court to permit them to appear in the Alabama Courts.  That lawyer made it clear that he played no role in the case, merely was seeking leave of the Alabama courts to permit these lawyers to appear and represent Mr. Maples.

           The New York lawyers filed the motion but while it was pending both lawyers left the large, New York  law firm, without notifying Mr. Maples or the court.  They could no longer represent him in their new employment.  Since they did not withdraw from the case and all subsequent notices and orders continued to be served on them as counsel for Mr. Maples.  No one did anything, and the time to appeal the denial of relief ran out.  When Mr. Maples attempted to litigate his federal post conviction motion he was rejected because he had failed to appeal in state court.

           In reversing the Eleventh Circuit Court of Appeals, The Supreme Court found that there existed “cause”  sufficient to excuse the state court default.  ”Abandoned by counsel…no just system would lay the default at Maples’ death-cell door.”

Oh, my God–you mean that I could be in jail for the rest of my life or at least 30 or 40 years? My kids will be grown, my parents may pass away…my life is ruined? Surely I will be a model prisoner and be paroled in no time. Think again. There is no parole and good behavior is not rewarded like it used to be.

What should I do now?

Your next step depends on the place where you are in your case.

1. Know that you are being investigated.

Talk with Kate because next thing that you know you or your corporation has been subpoenaed to a grand jury.

WHEN YOU BEGIN A THOUGHT WITH “I CAN ALWAYS SAY…” OR “HE IS LIKE MY BROTHER AND WILL NEVER COOPERATE AGAINST ME…” you are not facing reality.

2. Grand Jury Investigation

All federal crimes are indicted by a grand jury unless the defendant waives his right to a grand jury determination and agrees to the filing of a Complaint. (Rare unless you are cooperating or have made a pre-accusation deal).

Your lawyer will not be present at any federal grand jury and will not even know who the witnesses are being presented against you. In a few jurisdictions–Florida is one of them– a lawyer for a witness–not for you– can be present but cannot object or otherwise interfere with the state’s presentation.

Grand jury Indictments do not require that every person on the grand jury agrees, merely that there are a certain number who agree.

Grand juries can return “no true bills” declining to indict, but this is so rare as to be inconsequential.

There are times when a potential defendant can be invited to testify. This is usually ill-advised.

3. You have been arrested?

In the usual course of things you will be taken to the roffice of the DEA,FBI or other police agency. You will be questioned until you advised that you want your lawyer. After that, they will stop all questioning. It is wise to remember the exact things which happened and when; the names of the agents, who was present when each thing happened; were you being recorded, etc.

4. You are pretrial detained.

What does this mean and is it that legal.

In general terms it means that you are considered a risk of fleeing the jurisdiction or hat you are a danger to the community. This depends on many factors, including your immigration status, how long you have lived at your current address; whether you have children in school; whether you have a full -time, verifiable job–in other words, your ties to the community. It is legal, but a negative determination can be appealed immediately.

5. You are released on bond preparing for trial.

Can I travel? Can I work? Do I have to wear a bracelet?

Generally your travel will be restricted to the District in which you were arrested, but permission to travel can be granted by the judge. You may have to report to a pre-trial services officer once or more per week and that work is person will permit you to work if the work is acceptable to the court. Wearing a bracelet is another condition of bond which can be imposed and this is sometimes th e deciding point on whether you can be released.

6. You are trying to resolve the charges with minimal impact on you and your family

Any lawyer who is looking out for your interests will advise you that plea bargaining exists and what Its benefits may be to you. Pleading guilty does not mean that you are cooperating against others, but cooperation may be part of the bargain. No matter your thoughts on the matter, your lawyer should at least lay the facts out for you.

7. In spite of assurances from your counsel of his or her ability to “get the case dismissed” or some other favorable outcome, you are picking a jury Monday morning.

If you are still confident in your defense strategy, have your investigation completed, feel comfortable with going to trial and understand the risks and benefits, proceed.

However, if you are unsure, feel that your lawyer is unsure or unprepared, are missing witnesses or investigation, stand up yourself and tell the judge your concerns and ask for more time to find another lawyer. This takes bravery, but you will kick yourself later if you have let your concerns go unaddressed.

7. You were unfortunate enough to have been convicted.

You are awaiting sentencing–frequently you are incarcerated while you wait for one month or more. See article on postconviction, pre appeal remedies.

8. You are sentenced to a sentence which seems like death and either been given a report date or are going to be transported to the prison from the jail in a police bus.

9. You want to appeal and you need to know how soon you must begin the process.

You are worrying that you will not be able to seek out a new lawyer because you are in jail, your family is devastated. You need moral support but they may need it even more.

10. You have gotten a bad decision from the court of appeals.

11. The Supreme Court of the United States refused to take your case.

12. What other options are open to you?

If you have a federal conviction, you may–within one year of the affirmance of your conviction–file a Motion to Vacate pursuant to Title 28 USC § 2255. This complex area is discussed in detail ____

If you have a state conviction, you must first go to the state courts to vacate your sentence. No matter how long a state gives you to do this, you have to file it before the one-year federal time runs out. For instance, Florida gives post-conviction defendants two years to file for relief. However, if a prisoner waits fifteen month, he will have to take the state’s decision for whatever it is–he can never go to federal court pursuant to Title 28 USC § 2254.

 Post Trial Motions

For instance, you can file a Motion for a New Trial, and should renew in writing your Motion for a Judgment of Acquittal with factual and legal references.  This may be the time to consult with an appellate attorney in order to identify and research the appropriate issues and perhaps prepare the post-trial motions and memoranda.

Preparation for Sentencing.

In Federal court and in most State courts, if the conviction for a felony is the first conviction, the Probation Office does a Pre-Sentence Investigation which is given to the judge for his or her consideration of an appropriate sentence.  If you are not in such a category, you may be sentenced on the spot.

If you believe that this may occur, you need to have a sentencing package ready to present to the judge in order that the determination of how much if any time that you spend in jail is a considered judgment, not something quickly arrived at using a chart.

Pre-conviction you should ascertain whether your trial lawyer has prepared such a package and, if not, assure that a persuasive package stressing your life history, your accomplishments, how important you are to your family and community are presented along with other, creative alternatives to incarceration are presented, for instance, probation, monitored probation, a short period of incarceration followed by probation, a short term of shock incarceration.

Application of federal and state sentencing guidelines.

Sentencing at which time witnesses can be presented and the rules of evidence are somewhat relaxed.

Formal Judgment entered in writing.

Notice of Appeal filed within 10 days’ time in federal court, state court timeframes vary.  Florida is 30 days.  Various designations of the Record and Ordering of transcripts required.

Appellate Court receives the transcript and all filings from the trial court, and sets timeframes for the initial Appellant’s Brief–the defendant’s if he was convicted.

What if your lawyer told you and your family that he or she wants to do the appeal but, basically, nothing can be done?

Should I believe the trial lawyer?

When should I consider a second opinion?

Just as you would seek a second opinion before your are operated on, you can’t give up and “do your time” just because one lawyer saw no hope for you or hadn’t thought efficiently and creatively.

When you are lamenting:  I am in trouble and I need honest, straightforward, sophisticated legal representation now for myself or my loved one.

So far I have seen primarily lawyers who seem like they were selling me a used car and assuring me that they know best about strategy, law, what can happen.

I want a lawyer who collaborates with me but brings her sophisticated, experienced knowledge and experience to me.

What to watch out and run for the hills when a lawyer utters the following words:

• I can guarantee….  Serious lawyers can only guarantee that they know their job and will work tirelessly, together with you, with experts and consultants.
• I used to be your prosecutor’s supervisor when I was a prosecutor, so I can….  Does this mean that the current prosecutor is stupid or corrupt? , No, he is a professional and will represent his client, the government, to the best of his abilities.
• I want to go to trial because I won’t even think about anything but a trial (even if it is better for you) because I can get them in closing argument like I always do…
• If the potential lawyer tells you that she can get records or reports about the case and makes you think that you don’t have the same public access.  All federal cases nationwide are on PACER at minimal cost–ten cents per page–using a credit card.
• If your trial lawyer states that a professional investigator is a waste of your money….  For instance, my thorough and sophisticated investigator–after the case had been tried, appealed, and the first layer of post-conviction litigation was completed–found records showing that the chief informant-co-defendant-state witness–had lied to the court when giving his name and received a great deal for his lie.
• Experts like you see on tv are prohibitively expensive and I can win on my closing argument (or cross examination, or deposition skills, and the like).  I have engaged psychologists, psychiatrists, linguists, coerced confession experts, accident reconstructionists and many more.  Frequently, they turn the tide in your favor because they don’t let the slick prosecution evidence go unchallenged.  After your expert testifies, the jury may recognize that the government was trying to give them half of the story.
• If the potential or current attorney seems in a terrible hurry, doesn’t apologize for the rush, and leaves you more confused than when you entered the office, you may need to be in different hands.  Did his impatience only show up after the fee was paid?
• If your lawyer won’t give you his or her cell number or email contact information, it speaks to the attention which you will receive after the lawyer is paid.

Bottom line:

You are the client and you may choose the counsel that you have the most faith in and can afford.Don’t ever think that it will make the lawyer mad if you don’t pick him or her and they can hurt your chances in court because the lawyer knows the judge or the prosecutor

I will be frequently posting relevant articles primarily about my criminal defense practice.

Feel free to reach out to me by filling out my contact form or calling me.