April 01, 2012

Opening Statement: Error, Finality, and Fairness: Have We Got It Wrong?

There are good reasons to believe that the U.S. legal system has relied too heavily on process as a measure of fairness.

Ron Marmer

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When we think of error, our first thoughts turn to mistakes of process. Did the court use the wrong legal standard? Did the jury hear evidence that should have been excluded? Did the other side object? But error alone isn’t enough. It has to be harmful. The error must be important enough that it casts doubt upon the legitimacy of the result. There is no do-over unless you can show prejudicial error. That makes sense: Why bother to correct an error that didn’t make a difference in the result? The bigger issue, though, is why prejudicial error alone is not enough. If we know there was prejudicial error—that is, something wrong happened during the trial or appeal and it was a big enough mistake to call into question the fairness of the result—why would we allow the tainted result to stand?

The Supreme Court’s January 2012 decision in Maples v. Thomas wrestled with the tension between fairness and finality where the stakes could not have been higher and the error could not have been more glaring. Maples was sentenced to death. While his post-conviction petition was pending, Maples’s lawyers left their law firm, but they did not seek leave to withdraw from representing Maples. The trial court denied Maples’s petition, the ruling was sent to his attorneys at their prior law firm, and the law firm’s mailroom returned the ruling unopened to the trial court clerk. The time to appeal ran out. When Maples sought permission to file an out-of-time appeal, the state courts refused to waive the procedural defect. Maples then filed a petition for habeas corpus in federal district court. Both the federal district court and appellate court rejected his petition.


The Supreme Court reversed, 7–2, on the ground that Maples’s lawyers effectively abandoned him at a critical time in the proceedings. But according to the dissent, despite “an understandable sense of frustration” with the state court’s refusal to waive Maples’s late filing, federal precedent prohibited “excusing Maples’s procedural default . . . .” It was not enough, the dissent cautioned, to be swayed by “the interest of fairness,” because the same could be said “whenever a defendant’s procedural default is caused by his attorney” and concerns about fairness create a slippery slope that would jeopardize “an orderly system of criminal litigation conducted by counsel.”

As the history of proceedings shows, the district court, the majority in the federal appellate court, and two justices of the Supreme Court believed that Maples could be put to death, without the merits of his habeas petition being considered, because his lawyers missed a filing deadline to appeal the trial court’s denial of his postconviction petition. Indeed, if the facts were simply that Maples’s lawyers had missed the filing deadline—without the additional facts of the attorneys having left their law firm and the mix-up with delivery of the trial court’s denial of the postconviction petition—a majority of the Supreme Court may well have agreed that under Coleman v. Thompson, the procedural default of failing to file a timely appeal would prevent federal habeas review. To put the matter plainly, when the lawyers miss a filing deadline, the client can be put to death.

That’s a sobering thought. It raises important questions about how we approach error, finality, and fairness. In The Collapse of American Criminal Justice, Professor William J. Stuntz complains that we started down the wrong path when James Madison emphasized procedure instead of substance in the Bill of Rights. Stuntz prefers the French Declaration of the Rights of Man, perhaps influenced by Thomas Jefferson, for its emphasis on substantive limits. Stuntz’s critique, read more broadly, asks whether we have become so focused on process that we have lost sight of the result, not just in criminal cases but throughout the system of justice. In a twist to the philosopher’s question: Do the means justify the ends?

There are good reasons to fear that we have relied too heavily on process as a measure of fairness. Through the use of DNA testing, the Innocence Project continues to uncover instances where the person who has been convicted of a crime cannot possibly be the one who committed the crime. But even in those cases, the fact of innocence is not itself sufficient to win relief. There are additional procedural hurdles. Wouldn’t a person of ordinary sensibilities believe that if the scientific evidence proves you did not commit the crime, it is unjust to keep you in prison? And shouldn’t we rethink a system that we now know produces objectively flawed results? Or, to return to the Maples case, does it really make sense to put a man to death, without reviewing a federal habeas petition, because his lawyers missed a filing deadline? I recognize that a lot of lawyers and judges would say yes. I’m hoping that laymen would find that troubling, and the rest of us might come around.

It calls to mind social psychology professor Stanley Milgram’s experiments in the early 1960s. The test subjects administered what they believed to be increasingly severe electrical shocks when the person in another room provided incorrect answers to a series of questions. With each wrong answer, the intensity of the electrical shock increased to the point that the actor in the other room would begin to bang on the wall, complain about his heart condition, and eventually would scream in pain. The experimenter reassured the test subject that the test should proceed. In the first set of experiments, 65 percent of the test subjects administered the full set of massive electrical shocks. Milgram theorized that people were willing to administer the shocks, even though they believed the person in the other room was suffering, because they viewed themselves as carrying out someone else’s wishes and therefore did not see themselves as responsible for their actions. Has our allegiance to procedural fairness confirmed Milgram’s theory?

We have become so invested in the virtue of process that we are likely to have a tough time acknowledging we got it wrong. In her book Being Wrong, Kathryn Schulz explores how difficult it is for people to acknowledge their own mistakes. This insightful book covers lots of ground, from when our own senses fail to provide correct data to the many ways we seek to explain away our own errors. In one especially compelling chapter, she recounts the Millerites’ belief that the world would end on October 22, 1844. When it didn’t—the Great Disappointment—the Millerites did not acknowledge that they had been wrong despite, as Schulz pointedly observes, the compelling evidence of “the continued existence of the planet . . . .”

The Amanda Knox proceedings in Italy provide a fascinating look into another take on fairness and finality. To American lawyers, perhaps the most striking difference was the process on appeal. The appellate court appointed its own expert and appeared to conduct a new trial of its own. Can any American lawyer imagine our appellate courts allowing that kind of do-over? Yet popular sentiment here expressed delight that what was perceived as an unjust verdict was set aside. What would have been the reaction here if the Italian court had refused to entertain new evidence? Or worse, what if the Italian court upheld the verdict because one of Knox’s lawyers filed papers late? The point is not that the Italians have it right and we have it wrong. Rather, the point is that the primary inquiry should be on getting the right result. That is a substantive inquiry, informed by process but not limited by process.

I have forgotten more than I like to admit from my algebra class, even though my teacher, Mrs. Wank, was terrific. One of her enduring lessons was really very simple. After we solved for X, she told us we had to check our calculations and then perform one more step: We had to ask ourselves whether the answer makes sense. It was a final, substantive reality check.

We have to add that reality check to our approach to prejudicial error. We have developed doctrines that pronounce as “fair” results that we know are inherently flawed, but that we are told serve some higher sense of procedural justice. We have come to accept procedure as a sufficient safeguard for fairness. It is time to rethink our faith in process. Let’s add to the mix the essential question of whether we have a fair result. Whenever we conclude that prejudicial error has occurred, we must be absolutely certain that some competing value really justifies adhering to the outcome that we know was flawed, and flawed in a way that calls into question its fairness. It is, after all, a question of justice, and sometimes even of life and death.


Ron Marmer

Chair of the Section of Litigation