In my last post I criticized Justice Scalia for the last sentence of his dissent in the Maples case. “Because a faithful application of those precedents leads to the conclusion that Maples has not demonstrated cause to excuse his procedural default; and because the reasoning by which the Court justifies the opposite conclusion invites future evisceration of the principle that defendants are responsible for the mistakes of their attorneys; I respectfully dissent.”

I just read on the web two good examples of why Scalia’s reasoning doesn’t work in the practical world. I have copied and pasted them below. It goes without saying that lawyers, and especially trial lawyers, are fallible human beings and their clients should have relief, when through incompetence or worse, their lawyer fatally screws up. And how about Maples? Sitting in a concrete tomb deep inside a maximum security prison without any chance to oversee his lawyer’s work? Can we hold him responsible because a mix-up in his lawyer’s mailroom caused his notice of appeal not to be filed?

“A California lawyer has been criminally charged after allegedly appearing at court to represent clients at hearings in a drunken state. Michelle Winspur is accusing of blowing twice the legal limit on Oct. 7, 2011 when she was given a breath-alcohol test as she entered Kings County Superior Court in Hanford. She was tested because a court clerk said she sounded drunk when she called to say she was going to be late for trial. Winspur, now 45, also failed a sobriety test she was given on Dec. 8, 2011 as she left court after a client hearing. Already facing an attorney discipline case for allegedly being drunk during a 2010 trial in Monterrey County, Winspur had her law license suspended earlier this month. A defense lawyer pleaded not guilty on her behalf to the criminal charges last week, but Winspur herself did not appear because she apparently is in rehab.”

“A Florida lawyer was charged over the weekend with driving under the influence. It’s the third time Karen Miller has faced a DUI charge. Meanwhile, questions were raised by the prosecutor and the judge, according to a trial transcript, about whether she had been drinking during a client’s second-degree murder trial earlier this year. The judge declared a recess for approximately half a day, at one point, to allow Miller time to recover and return to court the following day ‘in the right frame of mind,’ the station reports. WINK says it reviewed personnel records of Miller’s work in former years, when she was an assistant public defender, and discovered the incident earlier this year is not the first time suspected alcohol consumption has interfered with her trial work. In 2009, a judge declared a mistrial because she failed to show up in court to represent her client, the article says. A workplace investigation determined that co-workers had found her ‘apparently passed out sitting at her desk . . . incoherent, slurring her words beyond comprehension . . . saying ‘I’m not that drunk.'”