A person facing capital punishment in Alabama has several rounds of appeals. One, a post-conviction process known in Alabama as Rule 32, allows defendants to raise questions about the process that led to their death sentence.

But almost alone in the nation, Alabama does not recognize a right for death row inmates to have an attorney when applying for a Rule 32 petition, a long and often expensive process requiring legal expertise and resources to win acceptance.  The state will only appoint an attorney if a court accepts the petition — a long shot if an inmate didn’t have an attorney during the application process.

Alabama is an outlier when compared to the guidelines that the American Bar Association published back in 2003 for appeals related to capital offenses.

“There is a right to counsel in capital post-conviction proceedings in virtually every state that has a death penalty,” said Robert Dunham, director of the Death Penalty Policy Project. “Alabama is not one of those.”

The Rule 32 hearing is the only time in the post-conviction process when the defendant can raise constitutional issues that didn’t happen at the trial, from jurisdiction to juror selection to the presentation of evidence, which serves as a foundation for their attempt to get a new trial or new sentencing hearing.

The strength of an inmate’s appeal often hinges on the quality of material and arguments their attorneys make in the Rule 32 hearing.

Without legal representation, the burden of making that case becomes crushing for an inmate, who needs to not only understand the legal issues involved, but also conduct investigations into their case, from speaking with witnesses to research. It is critical for the inmate to have access to counsel who can do the legwork and navigate the legal issues.

“What I know from folks I’ve known who’ve worked in courts, is one of the things that court clerks are starting to do is look for any reason to dismiss something,” said Amy Kimpel, an associate professor of clinical legal instruction and director of the Criminal Defense Clinic at the University of Alabama School of Law.

Even if the inmate can secure an attorney, the process can be difficult for legal counsel. A 2017 law known as SB 187 created additional roadblocks for inmates, forcing attorneys to start the process at the same time as a separate set of appeals, while limiting the money the state will pay to inmates’ legal counsel. That can make it harder for an attorney to stay with a case that could last decades.

“Alabama’s denial of an automatic right to representation in the post-conviction process severely hampers death row prisoners’ ability to investigate and present their claims,” Dunham said. “That is critical given the relatively poor quality of representation at trial.”

Nebraska is the only other state that does not grant death row inmates attorneys when filing post-conviction appeals. But Nebraska has only 12 people on death row, compared to 167 in Alabama.  Nebraska also has experienced attorneys who assist with capital cases, according to Emily Olson-Gault, director & chief counsel for the American Bar Association Death Penalty Representation Project.

That has left nonprofits like the Montgomery-based Equal Justice Initiative, and other human rights groups, and the American Bar Association Death Penalty Representation Project scrambling to find attorneys from outside Alabama to represent people on death row pro bono, because many of them are indigent and have no means to afford representation themselves.

But even that is riddled with flaws, because outside counsel must deal with an additional host of issues that do not apply to attorneys based in the state, such as understanding the peculiarities of Alabama’s laws and the logistics of traveling to the state to see their clients.

Maples is abandoned

Alabama’s approach to post-conviction hearings has gone all the way up to the U.S. Supreme Court.

In 2011 Gregory Garre, an attorney at Latham & Watkins LLP, was arguing a case before the U.S. Supreme Court defending a client on Alabama death row.

Cory Maples was charged with two counts of capital murder in the death of his friends, Stacy Allen Terry and Barry Dewayne Robinson II. Maples, who pleaded not guilty, was represented by two court-appointed attorneys.

Only one had worked in a capital murder case, and neither had experience with the penalty phase of a capital murder case. Fees for the two court-appointed attorneys were capped at $1,000 for working the case outside of court. Both were paid $40 per hour for time while in court.

The jury found Maples guilty of the two murders and sentenced him to death in 1994 by a vote of 10-2. Direct appeals to state and federal courts were denied.

When the post-conviction process began, attorneys from a New York-based law firm volunteered to take his case pro bono. An Alabama attorney also joined the team, with the understanding that his role was to allow the New York attorneys to represent him. His attorneys filed a post-conviction petition in 2001 claiming there was a Sixth Amendment violation of the U.S. Constitution stemming from ineffective assistance of counsel.

“He alleged, in this regard, that his inexperienced and underfunded attorneys failed to develop and raise an obvious intoxication defense, did not object to several egregious instances of prosecutorial misconduct, and woefully underprepared for the penalty phase of his trial,” according to a Supreme Court opinion written by Justice Ruth Bader Ginsburg.

But seven months later, the New York attorneys left their firm, one to clerk for a federal judge and the other to work for the European Commission in Belgium. Maples; the Alabama attorney and the local court were not informed.

In May 2003, the county circuit court, without holding a hearing, denied Maples’ post-conviction petition. The next venue was the Alabama Court of Criminal Appeals, and the clock began to tick away. He had 42 days to file a notice informing the court system he planned to appeal that decision — except Maples didn’t realize the court had denied his petition. Notices were sent to the New York firm and delivered to the mailroom. An employee returned them to the county court clerk, who did nothing with them.

The deadline for filing notice to the court of an appeal passed, devastating Maples’ chances for continuing with the appeals process. Rules for post-conviction appeals are strict and a lot of deference is given to the state when the rules are not followed.

In August of that year, Alabama Assistant Attorney General Jon Hayden, who was representing the state in the Maples case, sent a letter to Maples in prison to inform him the deadline to file an appeal had passed and that he had four weeks left to file an appeal in federal court to seek relief.

Maples, having received the notice from the Attorney General’s Office, then called his mother from death row, and his mother reached out to the New York-based firm, who then assigned two other attorneys to represent Maples.

The two recently assigned attorneys then requested the county circuit court to reissue the order. The court denied the request because of the missed deadline. State appellate courts upheld the decision.

In federal court, the Attorney General’s Office claimed that Maples waived his chance to appeal ineffective assistance of counsel. The district court agreed and waived his Sixth Amendment claims, saying that ineffective post-conviction counsel at appeal was not enough to justify a second chance.

That moved his case to the 11th Circuit Court of Appeals who, in a divided decision, agreed with the district court. Maples’ final chance before getting executed lay in the hands of the U.S. Supreme Court who agreed to hear his case.

Garre argued that Maples should have another chance at the appeal because the state had a role to play in what happened because, not only did the clerk at the county court do nothing with the notices after they were returned from the New York-based firm, but there was a larger indictment in the manner that Alabama handles its post-conviction appeals.

“The state initially set up a system for the representation of indigent capital defendants that relies extremely heavily on the good graces of out of state counsel to represent indigent capital defendants in Alabama,” Garre said during oral arguments in October 2011.

John Neiman, then the state’s solicitor general, argued that the clerk in county court had fulfilled the duty of notifying the New York-based attorneys that the petition had been denied when the notices were sent. The clerk did not have a due process obligation to do anything more than that despite the notices getting returned.

The Supreme Court overturned the decision of the 11th Circuit Court of Appeals. After a decade in federal courts, Maples was granted a new sentencing trial.

Limited rights of representation

State and federal courts in the United States have recognized that defendants have a right to legal representation in criminal proceedings, but that guarantee only extends to the trial and to first appeal after their conviction.

“After that however, there is no Sixth Amendment right to counsel,” said Bryan Stevenson, founder and director of the Equal Justice Initiative, a nonprofit organization that represents people on death row. “That means that if the state doesn’t set up a system to provide lawyers for post-conviction appeals, those folks really struggle to find representation. And a lot of states have not done that, including that has not been done in the state of Alabama.”

Post-conviction proceedings are separate from the direct appeals process. The direct appeal addresses any error made within the original trial, letting the person on death row appeal any issues that happened within the trial court proceedings to the Alabama Court of Criminal Appeals, the state supreme court and eventually to the U.S. Supreme Court.

In Alabama, a post-conviction Rule 32 proceeding allows a plaintiff to raise issues outside of the original trial, including federal and state constitutional questions, or whether the court rendered a judgment without having jurisdiction. The individual could also present newly discovered evidence damning enough to warrant the defendant another chance at trial or a new sentencing hearing.

While the barriers to representation have existed for decades, the state in recent years had made the process itself more difficult. In 2017, the Alabama Legislature approved SB 187, a 2017 bill sponsored by then-Sen. Cam Ward, R-Alabaster, now director of the Alabama Bureau of Pardons and Paroles.

The bill imposed a time limit to file a Rule 32 petition or they, by default, waived their opportunity during post-conviction. The law capped the amount that attorneys could be compensated at $7,500.

SB 187 also required that state post-conviction appeals, which had begun after death row inmates exhausted direct appeals, start at the same time as direct appeals. (An inmate can also make a separate round of federal appeals.) The law forced defense attorneys to perform double duty by having to monitor two deadlines instead of one.

Shifting standards

Appeals cases are difficult to win.

“The best chance to win in a criminal case is during the trial,” said John Palombi, assistant federal defender with Federal Defenders for the Middle District of Alabama.

At trial, the burden is on the prosecution to prove beyond a reasonable doubt that a defendant is guilty.   But in an appeal, the defendant must show that not only was an error made, but that it would have likely altered the minds of the jurors or the judge, a difficult standard to reach.

The rules in the appeals process also favor the state.

“A lot of why a case is thrown out of court, or why relief is denied, has nothing to do with the merits of their claim, meaning whether their constitutional rights were violated, whether they are actually innocent, whether some other very serious error occurred, but instead whether they complied with procedural requirements,” Olson-Gault said.

Defense attorneys are under constant pressure to meet the filing deadlines for each of the venues. Missing even one can devastate a client’s case.

“There are these very strict procedural bars that are put in place if you don’t file within the right amount of time,” Olson-Gault said.

The appeals process in Alabama operates on two concurrent, parallel, but offsetting timelines. The state filing deadline for a post-conviction petition, a Rule 32 hearing, is 365 days of the first brief filed in the direct appeal process, that appeal will go to the Alabama Court of Criminal Appeals.

A federal timeline to file a petition in federal district court is 365 days after the U.S. Supreme Court denies the direct appeal motion.

Missing either, or both, of those filing deadlines can wreak havoc on people’s appeal process, endangering their chances of even having a court review their claims.

To qualify for a Rule 32 hearing, people on death row must construct a petition based on not only solid legal grounds, but one that convinces a judge to overturn a ruling already made.

“In Rule 32 hearings, you are usually filing with the same trial judge whose decision you are trying to challenge,” Kimpel said.

Spencer Hahn, assistant federal defender for the U.S. Middle District of Alabama, agrees.

“There is a presumption that everything went fine at the original trial,” Hahn said. “In order to overcome that, the person challenging their conviction has to prove, by a preponderance of the evidence, that something went wrong, and it affected the outcome.”

Arguments that can be presented at a post-conviction hearing include prosecutorial misconduct; withholding potentially exculpatory evidence known as a Brady violation; attempts to racially stack a jury known as a Batson violation, or ineffective counsel.

But doing that requires defendants to invest hundreds of hours interviewing witnesses, reading hundreds of pages of transcripts from the trial, or conducting research looking for evidence to bolster their case.

A post-conviction appeal amounts to researching every detail in the case, finding any fact or issue where the trial attorney made a mistake so that it can be presented at appeal. That amounts to preparing for the case as if the office is trying the case anew.

“There is no possible way that a client could possibly do this,” Hahn said. “They don’t have the resources to do this kind of investigation.”

This kind of investigation involves taking a magnifying glass into the life of the person on death row and into the case of the trial attorney.

Raising those issues in a post-conviction appeal takes an enormous amount of work. Attorneys must review hospital records, school records, birth records.

“For mitigating circumstances in particular, they are interviewing the client, the client’s entire set of family, including siblings, parents, grandparents, neighbors of their client, employers of the client,” Butler said.

The American Bar Association opposed SB 187 in 2017, citing the enormous amount of time it took to prepare a client’s case. Linda Klein, who was president of the ABA at the time, wrote to legislators that on average, people found innocent of capital murder convictions waited 11 years on death row.

“While the ABA respects the importance of finality and judicial efficiency, quicker resolution of cases where a life is at stake should not take priority over ensuring fundamental fairness and accuracy of those convictions,” Klein wrote.

Olson-Gault cited ABA’s own non-binding guidelines, last amended in 2003, which call for a significant team of attorneys to be present to litigate these claims.

“The biggest thing for me is that the guidelines require a core team of two qualified attorneys, a fact investigator and a mitigation specialist to be appointed to represent the defendant or prisoner at every stage of the litigation,” Olson-Gault said. “That is certainly not happening here. Not only are you not getting the second attorney, the fact investigator and the mitigation specialist, there aren’t any requirements that one attorney who is appointed meet the qualification standards that the guidelines recommend.”

Getting attorneys for death row inmates

The truncated timelines, strict procedures and lax qualification standards leave inmates scrambling to find representation.

“We have responded to that by trying to recruit lawyers but we are not the only state that has a need for finding lawyers for people on death row,” Stevenson said.

EJI and the American Bar Association coordinate their efforts to find legal representation for people who have been sentenced to death in the state, scouring the country to recruit attorneys at some of the largest law firms who have a strong background in civil litigation.

The ABA will partner the firm with co-counsel or given a strategic advisor. EJI is an advisor for firms that have been recruited to defend people on death row in the state.

Olson-Gault called it a “Band-Aid on a gaping wound.”

“It is far from ideal,” Olson-Gault said. “It is far from efficient, and of course carries with it a whole host of problems.”

There are not enough law firms in the country with the capacity to provide attorneys for defendants on death row who need one and can deliver services free of charge.

“We have a case right now that we are currently looking for a firm with a filing deadline in three months,” Olson-Gault said. “Even if we find a firm in time, are they going to be able to get up to speed, to be able to learn the law, to learn the case, to do the records review, to do the investigation, and to write a compelling post-conviction petition, all within the time that is left?”

There are also structural problems with attorneys working for firms based outside of Alabama. Aside from the timelines, attorneys appointed by the court will get a maximum of $7,500 for taking on a client.

“It creates a conflict between the lawyer, ‘how much work am I going to put into this case for my client and, can I keep my office open?’” Olsen-Gault said.

The ABA’s guidelines note that takes “thousands of hours” to represent a prisoner in state post-conviction proceedings. Even using a low estimate of about 1,500 hours along with the cap on the fees, that comes out to $5 an hour that the attorney earns.

This would not be an issue in other states because many have established an office that handles post-conviction appeals in capital cases. Those offices are funded by the state and have the experience to handle the issues that happen when dealing with appeals for people on death row.

“This is not a bug, it is a feature,” Palombi said.

Alabama Reflector is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Alabama Reflector maintains editorial independence. Contact Editor Brian Lyman for questions: info@alabamareflector.com. Follow Alabama Reflector on Facebook and Twitter.