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NLJ and Maples

Some good news and bad news re the Maples case and the National Law Journal's Supreme Court Insider newsletter.

The good news is that NLJ has named Alabama SG John Neiman, who will argue the case tomorrow, as its appellate lawyer of the week.

The bad news is that the article is behind NLJ's very steep paywall, so I can't link to it.


It sounds as if the Supreme Court is less impressed with Alabama SG Neiman and his arguments than the National Law Journal may be. When Justice Alito is taking a you to task by saying he doesn't understand why the state is fighting so hard to deny Maples' the right to appeal when the deadline passed "though no fault of his own", the odds aren't very good for you. Perhaps SG Neiman would have benefitted by thinking a little more about the fairness of his procedural arguments before he made them.

The bottom line is that Alabama's position is completely supported by existing Supreme Court case law. If the justices want to get peeved because Alabama insists on its rights, then that says a lot more about them than it does about the Alabama AG.

And decency, Garre didn't have very good answers for Scalia's questions on the federal rules for crim pro.

I imagine it will be a pretty narrow decision. The press is right in identifying the key takeaway as Alito's question:

"the question that I would like to ask is whether this -- the -- whether you as the Solicitor General or the Attorney General of Alabama have an obligation to push this matter in this way. This is a case where, as I said, it's a capital case, as we all recognize. Mr. Maples has lost his right to appeal through no fault of his own, through a series of very unusual and unfortunate circumstances. Now, when his attorneys moved to file an out-of-time appeal, why wouldn't you just consent to that? If he did not receive an effective assistance of counsel at trial, why not give a decision on the merits of that? Why push this technical argument?"

Scalia seemed unmoved, but the rest of the Court seemed justifiably uncomfortable with foreclosing review in a case where the notices kept coming back to the court due to the departure of counsel.

The problem is that dog won't hunt. De Leeuw foreclosed the "blame the clerk" argument below.

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