The Talent

October 24, 2011 7:19 PM

In Maples Case, Associates Get the Blame

Posted by Tom Huddleston Jr.

Correction: October 24, 2011, 7:17 p.m. EDT: The original version of this story stated incorrectly who attorney Gregory Garre represents in Maples v. Thomas, which is now before the U.S. Supreme Court. Garre represents Maples in the case. The story has been revised to correct that information. We regret the error.

Clara Ingen-Housz's bio on the Baker & McKenzie Web site identifies her as special counsel in the firm's Hong Kong office who "advises multinational companies on emerging antitrust regimes in Asia, particularly China, and Asian companies on global competition issues." Ingen-Housz, the online resume says, "previously served in prominent law firms in New York and was a member of the Competition team of the European Commission’s Legal Service in Brussels where she handled several landmark cases."

Jaasi Munanka's page on the Hogan Lovells site lists him as a partner in the firm's Denver office and says his practice focuses on complex commercial litigation, international law, and white-collar defense work. The site, which notes that the Denver Business Journal named the 37-year-old litigator to its "Forty Under 40" this year, says that in addition to a Southern District of New York clerkship with Judge Sidney Stein, Munanka's experience includes "working as an associate for a major U.S. law firm."

The bios don't mention what Ingen-Housz and Munanka have in common: early career stints at Sullivan & Cromwell's New York office, where their pro bono work on death row inmate Cory Maples's so-far-unsuccessful appeal is at the heart of a case heard earlier this month by the U.S. Supreme Court.

Maples, represented by former U.S. solicitor general and Latham & Watkins appellate partner Gregory Garre, has asked the Court for another opportunity to appeal his death sentence to make up for what The New York Times, among others, has described as a mailroom mix-up.

Garre says the state of Alabama, where Maples is awaiting execution, owes him a second chance because it didn't fulfill its legal obligations to him the first time around. The state disagrees.

But in arguing on Maples's behalf, Garre, backed by Sullivan & Cromwell on a key point, pins at least equal blame on Ingen-Housz and Munanka, saying that they as individuals—not the firm—handled the case.

Beyond that, Garre says the associates' failure to leave forwarding addresses upon taking new jobs while their client's bid for an appeal was active rises "to the level of abandonment," and that their performance in the matter was reminiscent of Titanic captain Edward Smith.

Neither Ingen-Housz nor Munanka responded to requests for comment. Garre declined to comment on the case when contacted by The Am Law Daily.

While The Wall Street Journal, The Washington Post, and sibling publication The National Law Journal have all reported that Sullivan & Cromwell hired Garre to handle the case at the Supreme Court, a spokesman for the firm told The Am Law Daily Monday that "Cory Maples retained Greg Garre" and that Sullivan & Cromwell is not a party to the case. The spokesman responded to an earlier request for comment on the matter with the following statement: "We continue to work diligently to support Mr. Maples in asserting his rights." (At that time he declined to discuss whether Garre was being paid or working pro bono.)

The events at issue in the case began in 1997 when an Alabama jury sentenced Maples to death after he confessed to the 1995 killings of two friends and was convicted at trial.

Ingen-Housz and Munanka, meanwhile, joined Sullivan & Cromwell in 1999, Ingen-Housz after earning an L.LM. at Harvard Law School and Munanka after earning his J.D. at the University of Michigan Law School. According to court filings, the pair began working on Maples's postconviction appeal motion pro bono about a year later, in September 2000.

As out-of-state lawyers, Ingen-Housz and Munanka were required by the Alabama Bar to "associate" themselves with an attorney admitted to practice in the state in order to be allowed to practice there themselves. John Butler, who was listed on court filings along with the pair as counsel of record, has since claimed that facilitating their Alabama admissions was the extent of his involvement in the case. (Alabama does not provide postconviction counsel to indigent defendants.)

On August 1, 2001, Ingen-Housz and Munanka filed Maples's appeal petition in a bid to have his death sentence ruled unconstitutional based on ineffectiveness of trial counsel. Specifically, the pair argued that their client's court-appointed lawyers failed to investigate supposedly relevant evidence connected to his psychological history and substance abuse. Four months later, state prosecutors moved to dismiss the petition. The trial court denied the motion, and the discovery requests connected to Maples's petition remained active for the next 18 months.

The trial court ultimately denied Maples's petition on May 22, 2003. The next day, the court clerk sent Sullivan & Cromwell notices of both the decision and the 42-day deadline for appealing it. 

Ingen-Housz and Munanka, however, had left the firm nearly a year earlier for the European Commission and the federal clerkship, respectively. They did so without filing the appropriate substitution of counsel forms with the trial court clerk as required by Alabama law. S&C litigation partner Marc De Leeuw said in a 2006 affadavit attached to Maples's petition for a writ of certiorari (PDF) that he worked on Maples's appeal petition as well, but also failed to file a substitution of counsel form when Ingen-Housz and Munanka moved on. 

(Because he was also listed as counsel of record, Butler received a copy of the state court's ruling on the petition in May 2003. He says that he ignored the letter because he thought his work on the case was complete.)

Absent forwarding addresses for the two associates, the Sullivan & Cromwell mailroom marked the notices "return to sender" and "left firm" and sent them back to Alabama. As a result, Maples did not learn that his petition had been denied or that there was a deadline for appealing that decision until he received his own copy of the notice on August 13, 2003—nearly a month after that deadline had passed.

At that point, Maples's stepmother contacted Sullivan & Cromwell. The firm investigated the matter and filed a motion in Alabama circuit court to have the denial of Maples's petition reissued in order to reopen the 42-day appeal window. The court denied that motion on September 3, 2003. A similar request made to the state's Court of Criminal Appeals was denied on January 23, 2004.

Now, in trying to persuade the Supreme Court that Maples should get another chance to appeal the denial of his original petition, Garre offers what amounts to a three-pronged argument: that the state of Alabama and the two former associates, but not the firm, are to blame for the missed deadline.

First, as Brooklyn Law School professor Jason Mozzone pointed out in this blog post, Sullivan & Cromwell takes the position—as reflected in De Leeuw's 2006 affidavit— that when it comes to pro bono cases, its lawyers take them on them as individuals: "[T]he lawyers who first appeared in this case, and all lawyers who have participated thereafter, have done so on an individual basis, and have attempted not to use the firm name on correspondence or court papers."

That argument is consistent with language used on the section of the Sullivan & Cromwell Web site devoted to pro bono work, which refers repeatedly to such work being handled by "S&C lawyers" rather than the firm itself.

Garre reiterated that position in an August 1 reply brief (PDF) filed with the Supreme Court. In the filing, Garre argued that Sullivan & Cromwell itself did not represent Maples and that "while it may be more typical for a firm to assume the representation, the firm is not required to do so." He also cited a New York City Bar pro bono committee tip sheet that says a lawyer can represent pro bono clients in an "individual capacity"; can keep representing them after leaving a specific firm; and should discuss with the client at the start of a pro bono representation whether the work is being done individually or via the employer.

As for the state of Alabama, Garre argues that the court clerk failed Maples by not doing more to track down his lawyers when the notices were returned.

In some ways, though, Garre reserves his harshest assessment for the former associates. Garre told the Supreme Court during oral arguments on October 4 that Ingen-Housz and Munanka's efforts on the case "rise to the level of abandonment," according to sibling publication the NLJ.

The NLJ noted that Justices Ruth Bader Ginsburg, Samuel Alito, Jr., and Elena Kagan all pressed Garre on the "abandonment" claim, asking if Maples was truly abandoned if De Leeuw was also working on his case. "What 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," Garre told the Court, according to the NLJ.

Garre used even more colorful language to describe the two associates' failure in the August 1 brief. In the filing, Garre noted that the state of Alabama has defended its decision to deny Maples's petition by claiming, in part, that his attorneys fully discharged their duty to protect their client.

But, Garre wrote, the state also admits that the lawyers should have obtained the court's approval to withdraw from the case as required: "That is like saying that Edward Smith fully discharged his duty as captain of the Titanic, [but] he just did one thing wrong—he forgot to look for icebergs."

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I agree Mr. Maples deserves an appeal and full due process before the State takes his life. I think, however, Sullivan & Cromwell is squarely to blame for 1) not reassigning its young associates cases to other associates when they left; 2) failure to have a partner as lead counsel to supervise the young associates; 3) failure to have adequate procedures for dealing with mail from a COURT addressed to attorneys who had left the firm (which should have been reviewed by an attorney before returning to sender); and 5) failure to include local counsel at a substantive level for his knowledge of local procedure, perceptions and other insights of experienced counsel. At a minimum, S&C should have obtained forwarding addresses at the exit interview and confirmed each matter they were working on had been re-assigned to someone at that time. I am surprised a firm of the caliber of S&C let this happen.

The gravity of the finite sentence of death should have been enough for all lawyers and the State to perform due diligence to the tenth degree. The State should have re-sent the returned mail to Sullivan & Cromwell's managing/administrative partner by certified mail/return receipt to protect the rights and life of the defendant in this death penalty case.

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