tv Politics Public Policy Today CSPAN October 10, 2011 10:00am-12:00pm EDT
will have access to an activity even if there are natural disasters and other things happening, through a satellite network. >> tonight, questions on goals and possible plea dps interference with paul brown, jim kirkland, and fred schulte, 8:00 eastern on c-span >> the supreme court heard oral arguments this month. the supreme court is expected to render a decision before the end of the term in june. the oral arguments are in the case now and this is about one hour. chief justice john g. roberts: we will hear argument first this morning in case 10-63, maples v. thomas.
mr. garre. mr. garre: thank you, mr. chief justice, and may it please the court: two factors distinguish this case from those in which the court has found cause lacking to excuse a default: first, the state itself had a direct hand in the extraordinary events leading up to the default in this case; and second, the actions of maples' attorneys, which rise to the level of abandonment, are not attributable to maples under agency law or other principles that this court has invoked in determining when attorney conduct may be imputed to a client. that this court has invoked in determining when conduct can be with a client. it the default at issue in this case is not fairly attributable to cory maples. the decision of the 11th circuit should be reversed.
for either or both of those reasons, the default at issue in this case is not fairly attributable to cory maples and the contrary decision of the eleventh circuit should be reversed. chief justice john g. roberts: you talk about the state's role. i assume that you are talking about there is the failure to take action after the return of the notices? mr. garre: i think that -- that's right, mr. chief justice. i would couple that, though, with the fact that 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. chief justice john g. roberts: well, put -- putting that -- that to one side, what if only one of the three notices had been returned? mr. garre: i think -- if only one from the out-of-state pro bono counsel? chief justice john g. roberts: right. mr. garre: i think that would be a different case. i think what's remarkable about this case is you have both out- of-state attorneys, the notices come back marked "return to sender, left firm. " in an envelope, and the clerk does nothing. and what's extraordinary about that, mr. chief justice, is that the system in this case relies on the out-of-state attorneys to-- justice antonin scalia: who says so? who says so? who says that they rely on -- you have a local attorney and you have to have a local
attorney for the case, don't you? and -- and you want us to believe that the local attorney is -- has no responsibility for the case at all? is this really what the -- what the law requires? i -- i think there is a serious ethical obligation when he has the -- when he gets the notice. he's one of the attorneys for your client. and he got the notice, right? that one was not returned. mr. garre: --that's correct, justice scalia. justice antonin scalia: he failed to check with -- with the new york lawyers who were working with him. why is it -- why is the state responsible for that? mr. garre: we have three points on the local counsel, your honor. first, the record shows that the notice is not attributable to mr. maples because mr. butler had disclaimed any relationship apart from facilitating the admission of the out-of-state attorneys. justice ruth bader ginsburg: disclaimed to who? i mean, how could the clerk be expected to know that the local counsel really isn't taking any part? i mean -- so was the disclaimer to the clerk? mr. garre: i think a -- a couple things on the clerk's perspective. first, we do think that it was well known in alabama that, under this unique system, out- of-state attorneys were doing all the work in these cases and local counsel were simply facilitating their admission. second, one of the-- justice elena kagan: well, who says that, mr. garre? i mean, is there anything in the record on that point, on the
alabama system generally? mr. garre: --a couple of the things, your honor. first, we do have the amicus briefs, which discuss that anecdotally. i would say that the state of alabama in its brief in opposition to this court a few years back in the barbour case specifically touted the role of out-of-state attorneys under its system and as far as i could tell didn't mention local counsel once. so i think it was fair to say that it's known that the out- of-state attorneys here were doing all the work. but even if the clerk-- justice sonia sotomayor: --you are begging the question, which is how is the clerk supposed to know this? this is a functionary in the clerk's office who sends out notices, receives back mail that's not returned. there has to be some local counsel that does work. mr. garre: --well-- justice sonia sotomayor: how is he supposed to know the difference between those that do, and those that don't? mr. garre: --what -- what -- i think the clerk would be imputed with knowledge, general knowledge of the system. but beyond that, what the clerk know -- knew was this: he knew that two of the three notices that went out were returned, both to the out-of-state
attorneys, which ought to be an extraordinary event in the life of any-- justice antonin scalia: but, you know, even if local counsel is as you -- as you describe it, and nothing in the record establishes it, even if he is a functionary, surely the function would include when he gets a notice, that he makes sure that the -- the people who do the real work know about the notice. mr. garre: --of course. but the point is-- justice antonin scalia: he didn't perform that function. mr. garre: --in this case the local counsel didn't perform as a mail drop and that was intentionally so. his own affidavit makes that clear. and i think what's important is the state itself must not have viewed-- justice anthony kennedy: but he didn't have a mail drop? i just didn't hear what you said. mr. garre: --my point was that ordinarily a local counsel would serve as a mail drop; he would forward notice. in this case mr. butler made quite clear from the outset he was not even performing that role. the role that he intentionally performed was to admit out-of- state counsel and to let them do the work. but the state itself-- justice antonin scalia: to whom did he make that clear? you said he made it clear at the outset. to whom? and where is that in the record? mr. garre: --it's in his
affidavit, your honor, the petition appendix page 256. justice antonin scalia: his affidavit after -- after the fact, right? mr. garre: that's right, your honor. justice antonin scalia: did -- did he tell the clerk of the court that that was the case? mr. garre: he did not. justice antonin scalia: you know, you know, i'm counsel of record. he's the counsel of record, right? i'm counsel of record, but i don't even do so much as to forward notices to the guys that are doing the real work? did he tell the clerk that? mr. garre: he did not tell the clerk. but the state itself, your honor-- justice antonin scalia: extraordinary. mr. garre: --must not have viewed him as a meaningful player, because when the default at issue in this case occurred the state sent a letter -- faxed it -- to mr. maples directly on death row in alabama. justice ruth bader ginsburg: he said that even before that. in the rule, you said the rule 32 -- didn't you say something about -- the -- the notice that went from the prosecutor to maples did not go to the local counsel, right? mr. garre: the clerk sent out notices to all three attorneys of record, the two out-of-state counsel and mr. butler. mr. butler did receive the notice. he didn't do anything, both because he hadn't assumed any
role beyond facilitating admission-- justice ruth bader ginsburg: did the -- did the prosecutor -- i'm not talking about the clerk now. the prosecutor had a filing in connection with the rule 32 motion. did the prosecutor send that to everybody? maples and everybody? mr. garre: --he did not. the state -- and this is at page 26 of the joint appendix -- the state served it on his out-of- state counsel and not mr. butler, his local counsel. and when the default occurred, the state contacted mr. -- mr. maples directly in prison, which would have been unethical if the state had known or believed that he was represented by counsel. justice ruth bader ginsburg: but you seem not to rely on what the state as prosecutor did. it seemed to me the state as prosecutor was recognizing that maples had no counsel, therefore sent -- said you better file your habeas; this is how much time you have; sent it just to him. mr. garre: i absolutely agree with you, justice ginsburg. i think that that is further evidence that everybody knew that mr. maples didn't have any local counsel in any meaningful sense.
justice antonin scalia: where does the constitution say, by the way, that you have to give notice, that every judicial action has to be noticed to the parties to the case? mr. garre: well-- justice antonin scalia: the federal rules don't -- don't require notice, do they. mr. garre: --the constitution doesn't say that explicitly. justice antonin scalia: and the federal rules don't say it. you don't have to give notice in the federal rules, do you? mr. garre: we think notice of a post-conviction order in a capital case would at least implicate a due process interest in receiving notice, that it's reasonable-- justice antonin scalia: capital cases are different? if you are going to go to jail for life you -- you don't get notice, but if -- if it's a capital case-- mr. garre: --i think under the-- justice antonin scalia: --no, i mean, it's either a rule for all criminal cases or it's not a rule. mr. garre: --well-- justice antonin scalia: and if -- if it's a rule for all criminal cases, the federal rules are unconstitutional, you are saying. mr. garre: --the mullane case specifically takes into account the interests of the individual receiving notice. there could be no greater interest of an individual than receiving notice in a capital case where the individual's life is at stake. ultimately we don't think this court has to find a constitutional violation. it has to find that the event--
justice antonin scalia: once you are in court and you have a lawyer, it's up to your lawyer to follow what goes on in the court. that's the assumption of the federal rules. and it seems to me a perfectly reasonable assumption. and i'm not about to hold that -- that they are unconstitutional simply because an extraordinary requirement of notice, which is not required by the constitution, has gone awry. mr. garre: --here mr. maples did not have an attorney that was serving in an agency role in any meaningful sense. that is laid out in this ms. demott amicus brief; it is laid out in our case. what's more is the state didn't simply just, we think quite unreasonably, rely on a role that local counsel was not performing in alabama. chief justice john g. roberts: what if -- but -- your case it seems to me turns critically on butler's role. how -- how much, in addition to what he did or didn't do, would he have to do to put him in a position where he was in fact representing maples in your view? mr. garre: i think the -- the ordinary role of local counsel, which would have been to at a
minimum forward notice in the proceeding, would be a meaningful relationship. the relationship that -- that professor demott describes here is one of sub-agency. and in fact if you look at the alabama rules, they put the onus on the out-of-state counsel to associate the local counsel. that's at page 365 of the joint appendix. the out-of-state counsel did that. mr. -- mr. maples was not involved in that transaction. justice samuel alito: where do we look -- where do we look to see that it's standard practice for local counsel throughout the country to contact out-of-state counsel when something like this is received? i remember a case from the federal system in which local counsel appeared and did exactly what was done here, moved the admission of an out- of-state criminal defense attorney, who then tried the case for a year, got sick, and the judge said to the local counsel: come on in; you are going to take over this trial and try it for the next 6 months. and the local counsel said: whoa, i only signed up to move the admission of this fellow.
the judge said: that's too bad; you are counsel of record and you have to take over the case. i don't understand that what is alleged to have occurred here is that far out of the ordinary. mr. garre: i think mr. butler -- just simply saying, i'm going to allow -- i'm going to facilitate your out-of-state attorney to represent you, but that's my role, he has, quote, unquote, "no role" outside of that. justice antonin scalia: he can't define his role as a lawyer. once he appears before a court and says, i am counsel of record, he has certain responsibilities. it's not up to him to say what his responsibilities are. mr. garre: well, clearly that's right. justice antonin scalia: and if they don't extend even to forwarding notice, even to making sure that the people who were doing the leg work in the case know that -- that the clock is running, my goodness, i can't imagine what his responsibility is. it's not up to him to define it. mr. garre: that's exactly our point, justice scalia, which is that he forswore any responsibility. the lawyer in the holland case just had those responsibilities, too. he abandoned his client. what mr. butler here did here
was inexcusable. but there is another factor at play here, and that is the confusion that the court itself affirmatively created when it sent an order that by its terms directed that all counsel of record receive it. and that's what the order said; it's on page 225 of the joint appendix. and-- justice stephen g. breyer: before you get to the court, could i ask you about what the state attorney, the prosecuting attorney, knew? did the prosecuting attorney know that these two individuals from new york were representing this person? mr. garre: --certainly they knew that they were counsel of record in the proceeding. i will let my -- my friend answer that question. what we know, though, is that when the default occurred it took the extraordinary step of faxing a letter directly to mr. maples in prison, which would have been unethical if it believed he was represented by counsel. justice stephen g. breyer: all right. so you think you have -- in your view, the counsel of record knew that these two people in new york were part of the representation. did the counsel -- i mean, not the counsel of record, the counsel for the state. did the counsel know that they hadn't gotten the notice?
mr. garre: well, i don't want to speak for my friend. i don't -- there is certainly nothing in the record to -- to establish that they knew that these out-of-state attorneys didn't get notice. justice stephen g. breyer: is there any reason to think that the state attorney or whoever was prosecuting thought that the local counsel was likely not to do much? mr. garre: yes. justice stephen g. breyer: yes, okay. mr. garre: the very actions it took, justice breyer. justice stephen g. breyer: all right. now, so it's possible -- we will find out later -- that the prosecuting attorney who works for the state knew all those things: one, he's represented by counsel in new york; two, they didn't get the notice; three, the local attorney isn't going to do anything; and conclusion: they likely knew he didn't get the notice, but they are asserting that this is an adequate state ground to bar him coming in to habeas; is that the correct posture of the case? mr. garre: that's true, justice breyer. justice stephen g. breyer: so
all we have to decide is whether under these circumstances the state attorney's knowledge of all those facts mean that the state cannot assert this is an adequate state ground? mr. garre: right. and i think the state's actions-- justice antonin scalia: do we know that he knew all of those facts? mr. garre: --no, justice scalia. justice antonin scalia: of course we don't know that. mr. garre: but we know -- we know what action it took, and that action was an action that assumed that he didn't have meaningful counsel, or else it would have been unethical. justice elena kagan: counsel, can i-- justice anthony kennedy: let me ask you -- let me ask you this, if -- if i may. i don't know if -- i don't think the briefs covered it. it may be in there. do you know in alabama and/or nationwide, in how many capital cases there is no appeal? mr. garre: i don't know that, justice kennedy. i think the alabama system here created a system in which it would allow for appeals, not only in direct appeals, but post-conviction proceedings. there are several extraordinary features of the alabama system and we think that ultimately they helped to facilitate the extraordinary and shocking events in this case.
chief justice john g. roberts: what if -- the new york lawyers did not abandon mr. maples prior to the time that they left their law firm in new york, right? mr. garre: that's right. chief justice john g. roberts: so their conduct prior to that time would be attributed to him, right? mr. garre: i think that's right. chief justice john g. roberts: right. part of their conduct was setting up their arrangement with mr. butler where he would show up as counsel of record but not really do anything. so why aren't the consequences of that arrangement attributed to maples as well? mr. garre: i don't think they would be attributed. i think what you are looking for is whether the default itself is attributable to maples. the new york -- what the out-of- state attorneys did is they left the representation without fulfilling their duty to notify the court or mr. maples. mr. maples was sitting in a prison cell in alabama under the reasonable belief that he was represented by counsel who would appeal if an adverse decision was issued. justice antonin scalia: mr. garre, can i go back to justice kennedy's question? this was not an appeal. the question was how many
capital cases is there no appeal. he had been convicted and had appealed, right? mr. garre: the direct proceedings had concluded. justice antonin scalia: the direct proceedings were over. he had appealed up to the state supreme court. did he seek cert here, too? mr. garre: he did. justice antonin scalia: he did. and this was a post-conviction-- mr. garre: it was, but when the state sets up that system and allows for appeals it can't arbitrarily deprive it of an appeal based on the sort of circumstances here. justice antonin scalia: --that may be, but i don't think it's extraordinary that there be no appeal post conviction. mr. garre: i am not aware of any state that does not allow appeal in post-conviction proceedings. justice antonin scalia: it can be allowed, but it would not seem to me extraordinary that it not be sought. justice anthony kennedy: well, in -- in this case there was a direct appeal, and then there was this proceeding that we're talking about here. the trial judge waited for 18 months, so you would think there is some merit to the underlying claim. any statistics on whether or not -- on how often an appeal is abandoned or not pursued in
this kind of case? no statistics? mr. garre: no. i mean, the statistics that i'm aware of are that habeas claims are in a material sense often successful in capital cases. we've cited those in our reply brief. here we think the underlying claims are quite serious. the question in the case is really not who shot the victim. the question was whether mr. maples was going to be convicted for capital murder or murder that would result in life imprisonment. justice anthony kennedy: i'm -- i'm aware of the allegations. mr. garre: and i think, going back to the court and the clerk's actions here, one of the things that exacerbated the chain of events here was that you had an order which directed that all parties would be served. mr. butler did say that he saw that that order directed that the out-of-state counsel would be served, which created an added risk of the likelihood-- justice sonia sotomayor: mr. garre, i have two questions for you. is that -- is this state the only one that doesn't appoint counsel in a post-conviction
capital case? mr. garre: --well, i believe that alabama may appoint them. they don't provide for appointment in all cases. i believe georgia is another state. but in that respect, i think-- justice sonia sotomayor: but the vast majority do? mr. garre: --absolutely. justice sonia sotomayor: in capital cases. mr. garre: the vast majority do. justice sonia sotomayor: all right. number two, i thought there were two questions in this, in this part of your case. the first is, don't we have to decide that abandonment, which you have termed, is cause-- mr. garre: yes. justice sonia sotomayor: --in a -- to excuse a procedural bar in a state court. mr. garre: right. and that is-- justice sonia sotomayor: so we have to decide first whether we extend holland to this setting. mr. garre: --well, i think they're independent grounds. if the court concludes that the state's own actions-- justice sonia sotomayor: that's the due process. i'm talking about -- yes, both we would have to decide. but assuming -- we have to
decide the first question. mr. garre: --well-- justice sonia sotomayor: will we extend holland to this type of situation. mr. garre: --i don't -- i don't -- i just want to be clear on this. there are independent grounds. if the court concludes that the state's action-- justice sonia sotomayor: yes, i understand. mr. garre: --but with respect to the attorneys, that's right. justice sonia sotomayor: yes. justice antonin scalia: what is the line, mr. garre, between abandonment and just plain old negligence? mr. garre: it would be the line established by agency law going back to justice story's time. justice antonin scalia: so if his local counsel simply goofed in not, not advising the people that were doing the leg work in the case, why is that abandonment? mr. garre: i think it's actually more of a situation where he disclaimed any meaningful role at the outset. i think, you know, the real abandonment going on here was the attorneys in new york who left without notifying the court or their client. but that-- justice samuel alito: putting aside the question of local counsel, could we find that there was an abandonment if the law firm of sullivan and cromwell continued to represent mr. maples after the two young attorneys left the firm?
mr. garre: --the court could. justice samuel alito: and does the record show that they did not represent mr. maples, that this was done purely by the two attorneys? is there a finding by a court on that? mr. garre: there is no not a finding, but we think that's the better reading of the record, and i am happy to explain why. but most importantly, we think it's irrelevant whether he was represented by the law firm in this fictional sense. he was represented by individual lawyers in that proceeding. they were the ones who mr. maples agreed to have represent him in that proceeding. the alabama courts make specific findings that mr. maples' lawyers were ms. ingen- housz and mr. munanka. it said that after the default. at that time-- justice ruth bader ginsburg: but in the practice of a law firm, these were very junior people. wouldn't the law firm have to have some involvement in giving them permission to provide this representation? i mean, usually there is something like a pro bono committee and a higher level. can such junior associates just
go ahead and say, we want to spend a lot of our time defending a man on death row? wouldn't they have to get some kind of permission? mr. garre: --i think one would ordinarily expect that. and we are not condoning the actions here. i would say that at the outset of this litigation there were individuals from the legal aid society who were well familiar with capital cases involved. they apparently dropped out of the case. but we know-- justice elena kagan: --what do we know about mr. de leeuw's role, mr. garre. mr. garre: --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. at the oral argument in the eleventh circuit, he said on page 302 of the joint appendix that they were awaiting further action from the court. so we don't know what his involvement was. justice sonia sotomayor: mr. garre, we don't know, we don't know. isn't that just proof that if we were to find that holland applied, the holland exception applied, that we would have to remand this case? mr. garre: i think that would be appropriate, your honor. of course, we think the court
should find that the holland -- the holland exception, or more particularly-- justice sonia sotomayor: in that regard, there is one part of holland that you don't really address, which is that holland contrasted a statute of limitations issue with respect to access to a federal court with a procedural bar and said that the state's procedural bar had interest of federalism, that we had to be cautious of ignoring a state procedural bar because of federalism. if we were to extend holland in the way you want, how do we justify ignoring federalism in that situation? mr. garre: --that's right. there are those distinctions. our point is that holland recognizes that attorney conduct that amounts to abandonment is external to the client under agency and other principles. coleman itself recognizes that external conduct is not attributable to the client and can't be a basis for cause. the federalism interests are
simply not implicated in the case where you find that the attorney's actions are external. and we think if you look at the principles you looked at in holland, agency law going back to justice story's time, the principles of professional standards of care, you would find that an abandonment, of course that must be external to the client. justice alito said in his concurring opinion that where someone is not acting as an agent in any meaningful sense, it would be grossly inequitable and unfair to attribute the agent's conduct to the client. that's the principle we're asking. justice elena kagan: mr. garre, could we go back to the state of record. you've said a few times, and your brief does, that the record is skimpy on various important matters. would you go further and say that the record is irretrievably corrupted, tainted by conflicts of interest? mr. garre: i think there are conflicts of interest here. they are laid out in the legal ethics brief. the sullivan and cromwell attorneys were representing mr. maples up through the argument, the decision in the eleventh circuit. but i think for purposes of what this court would do, i think a remand would be
appropriate, because if you conclude, as we think you should, that abandonment of counsel would be an external factor, then it would be appropriate to remand for further proceeding. we don't know what these other attorneys were doing. the record doesn't show that. justice ruth bader ginsburg: we do know, though, that they were not counsel of record. mr. garre: we absolutely know that they were not. justice ruth bader ginsburg: we know that the two who were listed of as counsel of record were not representing him and they hadn't told the court. mr. garre: they were not counsel of record. mr. maples never agreed to have anyone else represent him in a way that could bind him. the alabama court specifically found not only that they weren't counsel of record, but they were not authorized to practice in alabama. this is on page 223 of the petition. justice antonin scalia: but it seems to me it's up to you to produce the facts that would justify our reversing the case that you are asking us to do. mr. garre: we asked-- justice antonin scalia: you can say, we don't have these facts; well, send -- send it back so i can -- no, you should have gotten the facts in the first place. if the record doesn't show the things that you need to show to get this case reversed, the case
should not be reversed, it seems to me. mr. garre: --but the petition did include a request for an evidentiary hearing. the think the problem is that both the district court and the court of appeals short-circuited the inquiry into counsel's actions because it believed that coleman v. thompson applied in the abandonment situation, and where a court made that kind of legal error, it would be appropriate for the court to send it back and say, no, coleman v. thompson does not apply in extraordinary cases of abandonment, or an attorney's actions cannot be attributable to a client under agency law. justice antonin scalia: when did you first make the abandonment claim? mr. garre: well, i think we've argued-- justice antonin scalia: wasn't it -- wasn't it first made in the -- in the request for rehearing? mr. garre: --i think explicitly. now, we think -- two points on this-- justice antonin scalia: that's rather late. mr. garre: --we think that all along they argued that the attorneys' actions established cause. that's why both the district court and the court of appeals addressed that and rejected it erroneously under coleman. that-- justice antonin scalia: that isn't abandonment. that isn't abandonment. the attorneys' actions established cause; that does not mean abandonment to me.
mr. garre: --we think this falls squarely within the rule of escondido, where -- where a party makes the claim below -- which they made the claim here that the attorneys' actions established cause -- can make new arguments, different arguments. and i think, particularly given that sullivan & cromwell had been involved earlier in the case, and the possibility of conflicts of interest would make it appropriate for this court to consider our abandonment issue, which was raised in the petition for rehearing, explicitly raised in the petition for certiorari -- explicitly -- we think it is properly before this court. if there are no further questions at this time, i'd like to reserve the remainder of our time. chief justice john g. roberts: thank you, mr. garre. mr. neiman. oral argument of john c. neiman, jr., on behalf of the respondent mr. neiman jr.: thank you, mr. chief justice, and may it please the court: in trying to sidestep coleman, maples is advocating at least three principles that are incompatible with the way our justice system works. first, maples is asking this court to hold that due process required not just actual notice
to his attorney of record, john butler, but in fact something more than that. chief justice john g. roberts: let's say the three notices are sent out, all three of them come back, okay? let's even go further and say the prosecutor knows that nobody representing mr. maples received notice. what happens then? mr. neiman jr.: in that case, your honor, there would be a much more substantial argument. chief justice john g. roberts: yeah, i know it would be more substantial. that's why -- my question is what happens? are you prepared to acknowledge that in that case, mr. maples had been abandoned by all of his lawyers, it was known to the prosecution, and therefore, the failure to file the notice should not constitute an adequate and independent state ground barring collateral relief? mr. neiman jr.: i don't think that the return of all three notices would justify necessarily a finding of abandonment in toto by all the lawyers. it could signify a number of things. i do think that it would raise questions about whether the clerk had a due process
obligation to do more under jones v. black. justice antonin scalia: what does the return mean when you get -- get a notice returned? it just said no longer at sullivan & cromwell, is what the two of them said, right? mr. neiman jr.: yes, your honor. justice antonin scalia: but does that necessarily mean that they've abandoned the case? it just means you got the wrong address, doesn't it? mr. neiman jr.: that's correct, your honor. justice antonin scalia: isn't that the only thing it means for sure, these lawyers are no longer here at sullivan & cromwell? mr. neiman jr.: yes, your honor. justice antonin scalia: i don't know how that would be an indication of abandonment. can't you switch a law firm and keep the client? mr. neiman jr.: absolutely, your honor, although the presumption generally is that the client stays with the firm. but that's correct. the client certainly can move firms when the -- a lawyer moves firms. justice ruth bader ginsburg: mr. neiman, i think we're blurring two issues. we are not talking about abandonment in this respect. we are talking about notice going to no one, and the -- and the clock ticking from a certain date that no one knows about. they were preparing for a hearing before this judge.
so they weren't anticipating that he was going to rule without anything further. mr. neiman jr.: that's correct, your honor. they certainly were preparing for an evidentiary hearing, and in fact, contrary to my friend's statements about what we know about mr. de leeuw's involvement in this case, on page 228 of the j.a., maples expressly alleged that de leeuw and others at sullivan & cromwell were preparing for the evidentiary hearing. justice ruth bader ginsburg: but as far as -- as far the record shows, de leeuw was not on the record at all. there were three counsel of record. two of them -- well, let's go back to the -- this first issue. the state by its own conduct showed that it didn't regard butler as any kind of representative, because it didn't even send its rule 32 response to butler, isn't that so? mr. neiman jr.: no, your honor, i respectfully disagree with that assessment of how we can read the service of the rule 32 answer.
under alabama law, a pleading or an order may be served on only one counsel of record when a party has multiple counsel of record. so, for example, that answer was served upon mr. munanka at sullivan & cromwell, but it was not served, expressly at least, on ms. ingen-housz. justice ruth bader ginsburg: what about -- what about the notice that he had lost in the alabama court and he better, if he wants to go to the federal court, do something about it? that notice went only to maples, right? mr. neiman jr.: that's correct, your honor. the state's attorney in that -- in that instance decided to send a letter only to mr. maples. justice ruth bader ginsburg: and mr. garre made the point that if maples were represented, that that would be improper, to send a notice to maples alone. muste state's attorney have thought that maples had
been abandoned by his lawyers because he didn't notify any of them. mr. neiman jr.: your honor, the record does not reveal why mr. hayden decided to send the letter to mr. maples alone-- justice antonin scalia: of course, he didn't have to send the letter. that letter had no legal effect, did it? mr. neiman jr.: --that's correct, your honor. justice antonin scalia: i mean, it was just: by the way, your time has expired. i mean, this is not -- what could the lawyer do about it? it wasn't a required notice that he had to give to the lawyer or to anybody else. mr. neiman jr.: that's correct, your honor. justice antonin scalia: so he just made this extraneous volunteered statement to maples instead of to his lawyer. i don't know what that proves. mr. neiman jr.: at that point in time, the state case was over. so it was hardly clear if mr. hayden was going to do something that he didn't have to do under the rules. chief justice john g. roberts: why did he do it? why did he do it, then? just gloating that -- that the fellow had lost? what was the point of it? he must have thought there was a problem, right? mr. neiman jr.: your honor, he certainly was aware that mr.
maples' lawyers had failed to file a notice of appeal. but -- and his letter reveals that he is very aware-- justice sonia sotomayor: is that surprising? i think justice kennedy asked your adversary: how often do appeals lie from the denial of state post-conviction remedies? mr. neiman jr.: --your honor, i agree with my friend that we don't have statistics on that front. i think it's fair to assume that for the most part, when a rule 32 petitioner loses at the trial stage they are going to appeal. justice sonia sotomayor: in a capital case. justice anthony kennedy: particularly in a capital case. mr. neiman jr.: that's correct, your honor, although there are some instances in which a capital petitioner or someone on death row decides that they no longer want to invoke the process of the courts and they are ready for their sentence to be carried out. justice anthony kennedy: i just have two questions going back to the very beginning, when we were talking about the missed address, or the unreceived mail. when the notices come back "no longer at sullivan & cromwell. " that's just as if it said functionally, don't you think, "wrong address"?
mr. neiman jr.: not quite, your honor. i think that the notice saying that the person's no longer at sullivan & cromwell indicates that the person is no longer at the firm. i guess the notice could come back-- justice anthony kennedy: i mean, it's pretty clear that they didn't get the mail, get the letter, because it's sent back. mr. neiman jr.: --that's correct, your honor. justice anthony kennedy: one other thing while i'm talking with you, and it's a tangential point, perhaps. could the state of alabama under your laws waive what you allege to be the procedural default? if you thought there was substantial merit to the underlying claims, even though you take the position that they ultimately should be rejected, could you have simply waived the procedural default and allowed the appeal to proceed? mr. neiman jr.: i don't think the law makes that crystal
clear, your honor. but i certainly know of no law that suggests that the attorney general of alabama necessarily has to assert every single potential defense within his or her arsenal. justice anthony kennedy: has alabama ever waived lack of timely appeal in a capital case? mr. neiman jr.: i'm not aware, your honor. justice sonia sotomayor: counsel, could we go back to the chief justice's initial question? let's assume the two letters went to sullivan & cromwell and came back, "left firm", as they did, and that the letter to butler came back "deceased". would there be cause in that situation to excuse the state's procedural ground? mr. neiman jr.: perhaps, your honor. it -- it would depend on why the letters came back from sullivan & cromwell. justice sonia sotomayor: well, we know that both lawyers in this case didn't move to another firm. both of them took jobs that precluded them from representing
this defendant. so i don't know how i define abandonment other than i take a job where i can't work for you anymore. mr. neiman jr.: the cause argument in that case, your honor, would be substantially stronger as i said before in part because, death, of course, is an external factor. so-- chief justice john g. roberts: so you accept -- i don't mean to interfere the question, but so you accept the idea that there is a distinction between malfeasance and abandonment. mr. neiman jr.: --your honor, i think we would be prepared to recognize that in certain cases an abandonment of a client by an attorney would terminate the agency relationship with -- between the attorney and client. chief justice john g. roberts: okay. so then the only thing we are talking about is whether on these particular facts there has been abandonment or not. right? mr. neiman jr.: that's correct. chief justice john g. roberts: from your perspective. mr. neiman jr.: yes, your honor. but one thing i want to stress is that my friend has suggested that an evidentiary hearing or further evidentiary proceedings
are necessary on this particular question because we don't know what role the other attorneys at sullivan & cromwell played in the matter. justice ruth bader ginsburg: but we do know they were counsel of record. we do know that the only two counsel of record were no longer representing him and he had no reason to know that they weren't, but they were not -- they couldn't represent him. the only two out-of-town counsel were the two who disabled themselves from representing him by taking other jobs. mr. neiman jr.: your honor-- justice ruth bader ginsburg: so there was no one from sullivan & cromwell other than those two on the record. so on the record, they had abandoned him and there was no substitute. mr. neiman jr.: --i disagree with that assessment, your honor. justice antonin scalia: well, the argument is that on the record or not is determinative for the out-of-town counsel, but it is not determinative for the in-town counsel. the fact that he is counsel of record doesn't count, but the
fact that those two are, does count. and only when you combine those two does the man have no counsel. right? mr. neiman jr.: yes, your honor. there is that inconsistency in maples' argument. on the one hand maples says that butler -- or that the other lawyers at sullivan & cromwell weren't his attorneys because they were not counsel of record. but butler was counsel of record but he wasn't for the attorneys. justice elena kagan: the notice inquiry is supposed to be a pragmatic one. as far back as mullane we've said that the question that we are supposed to ask ourselves is: is this what somebody would do if they actually wanted to accomplish notice, if they actually wanted the person to get that letter. so i'm just going to ask you, general, if you were a lawyer in an important litigation and you send off an important letter to two lawyers, your principal adversaries, as well as to a local counsel who you think may not be involved in the substance of the litigation, you don't know for a fact, but you
think there is some substantial likelihood that he's not particularly involved, as local counsel often aren't. so you send off this letter and you get it back from the principal attorneys, and you ask yourself: huh, should i do anything now? what would you say? mr. neiman jr.: your honor, i suspect that in those circumstances i might well personally do something else. but, of course, my prerogatives as solicitor general of alabama are quite different from the prerogatives of a clerk in northern county, alabama. justice antonin scalia: whereas the clerk has to believe that it's an important letter. right? it's not important enough to be required by the federal rules. how important is it? justice elena kagan: justice scalia is right. i am assuming that a letter disposing of a ruling in a capital case issued after 18 months when nobody knew that that letter was coming, that that's an important letter for a death row person to get. so justice scalia is right to that effect.
so you get this, and you say, well, you would have. but that's the question we have to ask about the clerk as well. the clerk -- the question for the clerk is, if he had really wanted the person to get notice, what would he have done? mr. neiman jr.: no, your honor, i disagree. the -- as far back as mullane, this court has said that at the end of the day actual notice to a party, particularly within the jurisdiction, is the finish line for due process purposes. mullane expressly-- justice samuel alito: you concede from these questions that the arguments that you are making in this capital case, which is sui generis, are pushing the court to consider rules that would have far- reaching effect, such as a rule that places upon a clerk of the court a constitutional obligation to serve counsel with important documents in the case similar to the constitutional obligation to serve initial process in the case. and 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? mr. neiman jr.: --there are several responses, your honor. first, at least at the rule 32 stage, the notice of appeal deadline was a jurisdictional one. and you're right, the state did oppose the motion for an out-of- time appeal, but there wasn't much the state could have done even if it had consented.
much the state could have done. >> there is no possibility under alabama rules in this circumstance? no extensi justice samuel alito: there is no possibility under alabama rules for an out-of-time appeal in this circumstance? no extension? once you passed a certain time deadline, you are out of luck. there is no opportunity were there is good cause for an extension? >> there is opportunity for a good cause of an extension. with the alabama court held was that this circumstance in which the person had counsel of record, the have not notified the court of their changes of address. more important, mr. butler was serving as his agent. >> this goes to my earlier question. if the state of alabama had
told the state court that only the circumstances, we think there should be an appeal granted, argue indicating to the state court that is a good idea but we can't do it because it is not appropriate under the circumstances? >> did the state oppose the out of town appeal? >> yes, the state did oppose the out of town appeal. the state press the procedural bar in federal court in this case. the state had every product is to do so in part because this court recognized a case where the petitioner said he lost his right to appeal through no fault of his own. the state has the power to do that. there are good reasons for the state.
>> he did not do so here. he had good reason not to. that is in part because coleman says, this is how procedural default work. they are grounded in the same equitable principles -- >> you agreed with me earlier that abandonment is an exception to the state grounds. under your view of the case, coleman was not necessarily controlling. >> your honor, if i suggested that abandonment itself is an exhibition to the doctrine, led by correct my earlier answer. abandonment can sometimes allowing courts to determine that a particular lawyer has become external to a client. of course, merely becoming external to the client does not mean the abandonment -- the
lawyers and the relationship would also have to impede the ability of the remaining members of the defense team or the defendant himself to comply with state rules. here even if there is some argument that they did not abandon their client, i don't think there is on record. even if there were some argument on that front, it is not clear that the actions actually impeded the ability of the remaining members of the team. >> when lawyers not representing your client as the two did, is there some obligation to tell the client and the court to read -- to rent for substitutions.
there was no record. these two people were representing him and to those two board. they never told the court and they never told maples. isn't there some obligation on the core with a stop representing them to notify the court? >> i don't think what happens here not -- represents cause. the record is clear that he has alleged they arrange for this to be handled by mr. deluca. he was representing him even before -- even before they left. >> i am still unclear of on factual thing. did the state's attorney know that the letters had come back? >> your honor, the record is not
clear on that point. i can represent to the court that the state attorney did not know that the letters have come back. >> do they check the docket ever so often to see what happened? >> most attorneys have an obligation at some point to check the docket. that is one problem with the position that mr. maples has taken regarding mr. polar here and the ability of these parties to obtain information from the court. in this case, it is my understanding -- this is not on the record -- it is my understanding the state had no idea mr. maple's attorneys in new york had left the firm or -- >> why did they stand it to -- what made them send that notice
directly to maples and not to the sullivan and cromwell lawyers? >> this is information that is not in the record. it is my understanding that council figure out what had happened, figured out the appeal had been missed. they had calculated how much time he had to file. based on his 20 years of experience he said that in light of the fact that the state court proceedings were over, the most prudent thing for him to do would be to send a letter to maples himself. >> so something had terminated the relationship between mr. maples and his lawyers? >> i don't think that is an accurate characterization of what happened in this case. >> even if u.s. and he had figured it out, you would have to in puked his knowledge to the clerk of court to find the fault
on the part of the state that is alleged here. >> more so than that, your honor -- >> did he tell the clerk of court he was only going to send it to maples? >> the notion came back to the clark long before the attorney sent the letter in this case. that is an important point both with respect to the issue of abandonment. the relevant question is not what the assistant attorney of alabama happened in this case, the relevant question is what the clark knew and that is governed by royal seven of the rules governing the alabama bar. had maple's been abandoned? had these attorneys left him without counsel? the record definitively established is that did not happen both because mr. butler remained council here in a much more meaningful way that my
friend suggests. >> could you tell me -- i assume you have been practicing in your state for a while. >> yes, your honor. >> how frequent is it in the alabama system that local council takes the laboring or even an active participation in the defense or actions of a capital defendant? generally, they did what mr. butler did, they facilitated the admission of the volunteer attorneys. was that your experience? >> that information is not in the record. we respectfully disagree as a factual matter with factual assertions made on that front. >> we have to send it back. i guess we have to say what the role is. what is the rule -- what about
the role that says or the attorneys to abandon the clients and local attorney does as a matter of practice in the state do virtually nothing accept facilitate foreign representation and where the state had cause to believe that all that was true? in the state cannot assert this is adequate ground. that is all. >> rule seven of the rules governing the alabama mark -- the alabama are made it emphatically clear that they -- >> irrespective of what the rules were, he would have to show that in this state it is a practice such that the local council does not do much of anything accept facilitate. this is a state of mind whether
the state knows that. if he shows both of those things. if he shows the letter came back. he shows this was the abandonment or close their to then the state ought to know that this individual has no idea about filing a piece of paper. that is enough to say this is not adequate state ground that would block federal habeas. your argument against that is what? >> has a simple matter, those factual assertions were not made below. in order for the court to remand on that particular issue, it would not be everyman pour in evidentiary hearing. >> it seems there is a lot during the breeze that seemed to say that. >> one problem mr. maples faces here is that he had the burden as the practitioner to make the factual allegations that he believed established a cause.
>> when an attorney is represented by more than one attorney, the notice does not have to go to all of them? >> that is correct. >> it can only go to one. >> yes. >> as far as local counsel knew, he was the only one to receive notice of this thing, right? >> that is correct. >> is incorrect orders the notice miss the people who have been served? with the new york people listed on the notice that when to butler? >> yes. >> so he knew he was not the only one getting notice. >> the cc line in this case cannot establish cost and cannot be deemed a state interference for any number of reasons. i suppose it could only be held to establish cause if it would have been reasonable for mr. butler to assume that the line communicated the message it
would be fine for him to do nothing and to not based on what was in the cc line. the first is that the line does communicate that they were the people listed on the cc line. they will receive the order. all it says is that the order will be sent. even if it would have been reasonable for mr. butler to assume that they would receive the order in this case, it would not be reasonable for him to do nothing given that role seven of the alabama rules made him responsible to the crime and to the court and this case. >> i guess the problem is -- accept the role. it exists. if a lawyer says, i don't care, i will not do what the court rules require me to do, what more do you need for abandonment? if a lawyer comes in and says i
understand this is the role of the court. i understand i am supposed to do xyz, i don't care. that is the question. it is the difference between i don't care and up and it meant. >> i guess i should make a couple points in response to that. as i understood the question posed on the cc line, that is not about abandonment but whether the clark's actions can be blamed -- the fall replaced -- >> we are not talking about a notice issue. we are talking about the abandonment question. >> if it really is true, if butler had decided he was quick to do nothing in this case and that represent his client and not be an attorney for the client, there might be a viable argument that butler was not -- had not abandoned the client in some way. that is not a reasonable reading of the record in this case.
>> if we find that these lawyers did abandon their clients, would there be some sanction calls upon them by the bar? i often wonder what we find that there has been an adequate assistance of counsel and a capital case, does anything happen to the council who was inadequate in a capital case? >> your honor, i suppose it would depend on what the allegations are. >> have you ever heard of anything happening to them other and then getting and other capital case? >> your honor, i have not. certainly the rules provide that a breach of the rules and responsibility goes against the alabama attorney here and the new york. >> you said a few moments ago that butler did more than your friend suggested. what more did he do. >> of course, we discussed in the brief the and disputable fact that butler found numerous
things after the default occurred in this case. >> what did he do before? >> bowlers affidavit -- it certainly does not say i was and is only teas were these people in or move for their admission and nothing else. >> what did they do more than that? >> it says on page 25580 agree to service local councilor -- page 255 a to agree to service local council. let me withdraw any suggestion that i have said dollar had done something that is clear on the record. my time is up. i finished. >> are you sure? >> my point is that butler did not agree to move these people's
admission. butler said he would be local council. the role of local council is defined by royal 7. >> thank you, counsel. >> we agree this is a silly case. the facts are extraordinary. our position is simply under the escort's precedents, mr. maples has established a cause to excuse the defaults. with respect to local council, apart from the fact that the state communicated directly with mr. maples, maybe the other telling thing is that in 2006 alabama itself recognized it could only create problems and did not add anything. with respect to the abandonment, i understood at times might counsel my friend acknowledged an external event with respect
to the client. if that is so, i think it is clear we are at a minimum entitled to a remand. i think at a minimum, the record is not clear on a number of things that this court would have to get into if it were going to have to consider adopting the state budget position. mr. maples was in a prison cell. his record did not tell him they had left the firm. they were required not only to the -- to tell the court -- >> we don't have to adopt the state owes a position he was not abandoned, -- >> we have a record of not notifying mr. maples, not notifying the court. >> what is troubling to me about the abandonment argument is that -- the fear that if the court says abandonment his cause, there will be many cases in which the allegation is, my attorney was not an effective and negligence.
the attorney was so bad that the attorney abandoned to me. that will substantially change the existing law. how can that be prevented? >> working to agency principles that go back. working through the principles established and this court's decision how it will be applied. the lower court issued its decision and found mr. collins had abandoned to mr. holland. i do think holland already recognizing -- and already recognizes that it can be abandoned. one context cannot be extra appeared >> to you know how often it has been granted? very recent. how frequently holland's release has been granted by the courts below? >> i don't know the answer to that question. i expected this would be very extreme. i think the facts here are about
as extreme -- >> how do we distinguish between that and it meant and simply a >> when you have councils of record of leaving, i think that is an abandonment pure and simple. we have looked to agency principles you want to get into the facts. i think it is a very high bar. i think this case passes that are. it is something the courts will work out applying agency principles, applying this court decision, recognizing what holland said in this case -- we are simply going to extend, logically, attorney abandonment this task under agency principles. this court does not have to find a constitutional violation of
the state of report. it is enough that the court finds that the state's actions are external. you look to what a person actually desires. in this situation, the clark got two notices back. they did nothing. i do not think anyone actually desires to provide notice to an inmate. mr. maples is not asking to be released from prison. he is asking for an opportunity to present constitutional claims to a federal habeas court on the merits that the claims are as meritless at the state suggest, simply allowing those claims to be adjudicated on the merits. >> thank you, counsel.
>> we are live this morning and we're at southern new hampshire knew him -- university were jon huntsman is expected to lay out his foreign policy this morning. this is part of a campaign tour through the state. today's remarks are hosted by the world affairs council of new hampshire. this was scheduled to start at 11:00 a.m. this morning. it should start no later than 11:15 this morning. until then, "washington journal." host: they don't have to report
you should be able to pick up contributions of $2,500 from people who have supported you in the past. it doesn't look like that's going to happen. the average -- the total number of contributors was 22,000. the average contribution is about -- that is very high for an average. it means a fair number of people gave the maximum and wish not be surprised at that. the political base is in a state with unlimited contributions.
host: what you make of rick perry's number? he has had a rough week for two in the eye of the watchers who look at how performances ago. some of his comments about immigration. guest: i do not believe these numbers primarily in terms of the course race -- horse race. i look at both of these candidates and see candidates who are raising the bulk from people who give the maximum amount and therefore cannot give again. if supporters want to give some more, they will have to get into the outside committees.
the leading candidates on the republican side -- funding is coming from large donors. host: what about some of the candidates we have not seen. representative michele bachmann or nuking bridge? -- newt gingrich. guest: i assume if it wanted to brag about their numbers they would have let something out by now.
at this point four years ago the top three republican prime fundraisers for the quarter were mitt romney and rudy giuliani and frank thompson -- fred thompson. host: michael milken is our guest -- michael melvin is our guest. we're talking about the presidential campaign fund raising thus far. you just mentioned who was in the lead back in this time in the last election cycle leading up until the 2008 race. do the overall numbers compare? how are they looking at this
point? guest: the numbers are looking kabul on the republican side -- numbers are looking comparable on the republican side. these are by stark terms on the high side for the third quarter -- these are by historical terms on the high side. guest: i expect to see a significant role by the super pacs, which can accept unlimited contribution. host: there is a story from "the huffington post."
priorities. [applause] >> thank you for that warm and gracious reception on such a beautiful day in this beautiful state. i have spent most of my life in public service and i look back on the life in years that i was getting a government paycheck. i remember the 12 years i spent in washington, d.c., and six of those years old occurred when ronald reagan was president. i remember america in 1981 and 1982, the economy was really suffering, and the notion was we still have to cut taxes and we had to stay the course. the difficult and challenging election and the economy got stronger and we became even more engaged under president reagan
paused leadership. -- under president reagan's leadership. i said, who in this field of men and women is equipped with the experience and frankly the mind set to deal with creating economic strength at home and projecting america's authority and influence in a positive way around the world. i decided that that man had served as governor, a businessman, and he had served as ambassador in a critical part of the world, singapore and then in china. there are a lot of trends in america that are alarming. there are people like yours truly that say we need to be
more in gauged and perhaps in a different way -- we need to be more engaged and perhaps in a different way. i look at the governor's record back home and kind of doing it the reagan way. you cut taxes, you streamline government. there are some people that need your help and you are going to help them. so protecting -- projecting economic strength and maintaining our values. america has a brand. we know how to create jobs in america because you cannot be secure unless you're prosperous, and you cannot be prosperous unless you are secure. for the economic protectionists,
we say no. 190-plus countries out there. they are potential markets for us. build your comic at home -- build the economy at home. that is the reagan way. i think that my party and my country needs governor huntsman to be president. he understands there is peace to strength. i am pleased to be with my friend governor huntsman today and reassert publicly my admiration for him. thank you very much.
[applause] >> thank you, governor ridge. i would also like to introduce of southern new hampshire university and to think southern new hampshire university to help us present this program today. please join me in welcoming the dean. [applause] >> thank you. i like to welcome governor huntsman back to the state and to the university and to thank him for is remarks to our graduate students last may.
he set out his vision for our country's foreign policy. he chose an american university as a backdrop. higher education remains the world's gold standard. southern new hampshire with over 900 international students on campus has a strong tradition of reaching out into the international sphere. we host the world affairs council of new hampshire. as a former ambassador to china, governor huntsman has unmatched experience in the international sphere. he represented the united states and china in dealing directly with the chinese government.
he brings a valuable perspective in the role of the nine states in the world today -- in the united states. we're privileged to welcome governor huntsman. [applause] >> thank you very much. and, anna, thank you for your willingness and leadership in hosting this event today. to governor tom ridge, one of the great public service of my generation. to the ambassador, it is an honor to be with you, my friend . the state representatives drisco, my good friend who does so much for veterans, it's an honor to be here.
it is my second time at new hampshire -- southern new hampshire university. i am reminded of a chance to get a second show at this great institution. i am reminded of something that took place between winston churchill and george bernard shaw when churchill was not doing so well in terms of the popularity polls. george bernard shaw was in town opening for a play and cents an invitation to prime minister churchill and said, please enclose two tickets of the opening night of my play, one for you, and one for a friend, if you have one. churchill wrote back and said, due to the press of business, i cannot attend the first show,
but will be delighted to attend the second show, if your i thers one. [laughter] you have given me a second show, and i'm grateful. the most critical function of the sacred office. this has been true throughout our nation's history, whether it was truman during the atomic age, reagan and soviet union. it has never been more critical than today. we are a nation mired in multiple military entanglements overseas and in the grips of an economic crisis here at home. instability in the middle east. debt crisis across europe.
the looming threat of nuclear proliferation. it the world needs american leadership now more than ever. we are struggling to provide it. president obama's policies have weakened america and a diminished america's presence on the global stage. i have lived overseas four times. i have seen the world as a diplomat. i have seen it as a businessman and as a humanitarian. i have lived and seen what our most significant competitor nations are doing to prepare for the rest of the 21st century, and i have a clearer vision of what america must do. i believe the united states has an opportunity to redefine its
place in the world and reclaim the mantle of global leadership. mike administration posture approach to foreign affairs will be guided by that which defines the american exceptional was some, and that is our values -- liberty, democracy, human rights, free markets. america's values our america's best gift to humanity. to those nations who share our value and who we call our friends and allies, we will restore trust and strengthen our bonds both economically and militarily. to those patients who resist the unstoppable march of human and economic freedom, we will make clear that they are on the wrong side of history by insuring that america's light shines bright in every corner of the globe,
representing a beacon of hope and inspiration. we will establish a foreign policy doctrine that reflects our modern world, simply advocating more ships, more troops, and more weapons is not a viable path forward. we need more agility, more intelligence, and more economic engagement with the world's. so how will we do this? erased the old map and nation- building. engaged our allies and fix our core. this is how we will fight the enemy we have and renew america exceptional as an. i would like to discuss the five planks which will comprise my administration's foreign policy. first and foremost, we must rebuild america's core.
challenge's greatest does not emanate from outside our borders, but from within. nearly 15 million of our fellow americans are unemployed, to unite the dignity of a job. millions more are so disparate they have given up even looking. our national debt continues to street towards unsustainable levels and is itself a national security issue. in new hampshire, a share of who is served for 30 years told me that for the first time ever, his folks are handing out foreclosure notices to the middle class. all this effort trillions of dollars in government spending in massive bailout. our nation's core is weak. our people are hurting.
america cannot project power abroad when we are weak at home. we have lost leverage in the international community. we saw the palestinians make an end run around the american-led peace process because they lost confidence in it and our ability to lead. the world is a better place when america leads. the world is a safer place when america leads. our interests are best served when america leads. we must regain strength at home, returning people to work, restoring confidence in our future, fixing america first. that will be my most urgent priority.
it will require more than half measures. it will require reforms to our tax and regulatory systems. i have a plan that one economist calls the most progress growth proposal ever by a presidential candidate. i will drop the steps on the front steps of congress on day one and will not stop fighting until we get the job done. we need a foreign policy of expansion, not containment. we need a foreign policy based on expansion. the expansion of america's competitiveness and engagement in the world through partnerships and trade agreements. free trade supports nearly 18 million american jobs and establishing new lines of trade with international partners represents an enormous wealth of
untapped economic goodwill. 95% of the world customers live outside our borders. the united states is party to only 17 of the more than 300 trade agreements worldwide. we will see greater trade opportunities with nations that share our values and believe in good government, open markets, and rule of law, as well as nations willing to engage in reform efforts toward those ends. it starts with passing the three pending trade deals, which president obama has resisted for three years and which could boost american exports by more than $10 billion and create tens of thousands of american jobs. we should aggressively pushed for the conclusion of the trans-
pacific partnership which will open markets in australia, brunei, chili, new zealand -- chile, singapore, and vietnam. we need to pursue free trade agreements as aggressively as china. china is in the game, we are not. america must support the round of negotiations aimed promoting trade between developed and developing nations. this is an opportunity for the unstoppable tide of economic advancement to lift all ships, and a false to america to lead this effort -- and it falls to america to lead this effort, because no one else can. every year american cents more
than $300 billion overseas for imported oil -- every year america sends more than three under billion dollars overseas for imported oil -- more than $300 billion overseas for imported oil. we must right size our integuments. we're risking american blood and treasure in parts of the world where our strategy needs to be rethought. afghanistan was once the center of the terrorist threat to america. that is no longer the case. the soviets were the air for nine years. aerial bombing and strafing and
helicopter gunships and tanks. we have been there 10 years and are taking a different approach. we're nation-building. our presence should not be focused on nation-building, but rather on counterterrorism. we cannot social engineer other countries. we cannot social engineer our own cities. it is social arrogance to think we can turn tribal leaders into democratic leaders. it is wishful thinking to think our troops will prevent further instability or even sell war. -- even civil war. our men and women have done their all in afghanistan and iraq. they have taken the fight abroad
so that we don't have to face it here at home. our nation has done its duty. after 6000 lives lost and more than $1 trillion spend, it is time to bring our brave troops home. as they return, we will take care of them and help our veterans transition from the battlefield to the home front. and remind every citizen in this country how much we value those who are willing to put their lives between our freedom and the enemy. in afghanistan, we could go from 100,000 boots on the ground to a much smaller footprint in a year, while leaving behind an adequate number of counterterrorist and intelligence functions and special forces presents, and i believe we should -- special
forces' presence. only pakistan can save pakistan. only afghanistan can save afghanistan. we should focus right now on america saving america. our future is not in the hindu mountains of afghanistan. it is in the schools and universities to is like this one, which educate our leaders and our entrepreneurs of tomorrow. it is in silicon valley and in the induction course of the midwest, and in our farms and factories and our ports that ship our product to the rest of the world. pakistan, which possesses a nuclear weapons capability and a fractured military that sponsors terrorism, does demand u.s. attention, we must acknowledge certain realities as we
contribute -- as we consider the wisest way forward. this is transactional at best. many americans are suspicious of islamabad in the wake of the bin laden operation. despite billions of dollars in aid, the united states is held in low esteem throughout the country. we cannot dictate fundamental changes upon an age old civilization from afar. as president, i will protect american security interests in pakistan without being naive about islam obama's incentives and long term interests. there is another event is to a more judicious approach toward foreign entanglements. it helps prevent our military from being stretched too thin and unable to respond to a direct security threat either to
america or to one of our allies. this includes standing shoulder to shoulder with israel, as they manage a host of new challenges, brought on by the arabs spring, along with more familiar challenges such as a hostile iran, which will continue to be a transcended challenge of the next decade. i cannot live with a nuclear- armed iran. if you want an example of what i would consider the use of american force, it would be that. a reexamination of america's role in the world requires a re- examination of our military and defense infrastructure. in a surprise some people to learn we spend more on defense today than at the height of the cold war. we spend more on defense than the rest of the world combined.
we still have remnants of a top-have the post cold war infrastructure. it needs to be transformed to reflect the 21st century world. the growing asymmetric threats we face. counterterrorism needs to be a much larger part of our foreign policy. we must be prepared to respond to threats from al qaeda and other terrorist cells. they come from the asia-pacific region. we must also adapt our defenses to evolving means of attack. this means a greater focus on intelligence gathering and more agile special forces projection capability, which can respond swiftly and firmly to terrorist threats in any corner of the globe.
the traditional missions of our armed forces will remain relevant for the foreseeable future. but the relative importance of counter terrorism and training and equipment for and security forces and special forces operations will continue to grow going forward. we must also transform our orientation. i have come to believe that we are embarking on an embarking on-- asia-pacific eccentric or america must and will play a dominant role. population, economic power, military might, energy use, the center of gravity, global activity is moving toward the pacific region. embracing this reality may bring a dramatic changes to the look of our military. the asia-pacific region is a
maritime theater. europe was mostly a land theater. the asia-pacific features a collection of military alliances in contrast to the presence of nato in europe. it is full of islands when compared to the relative calm of other regions. we are a pacific nation. our vital interest in that region cannot be compromised. we must strengthen our relationships with the major powers of the world. our traditional alliance relationships with europe remain vital to american security. we should work closely with our friends in natal and the european union to bring russia, a sometimes difficult actor, closer to the west -- which to work closely with our friends in
nato. they will most influence how american navigates the 21st century. first china. there is no other relationship that is mismanaged, carries greater negative consequences for america and the world. stewardship of the relation will make america and our allies safer and more prosperous. the stakes are enormous, as are the challenges and opportunities. we will disagree often, whether or tie 1 security needs, human rights, or the protection of intellectual property rights. while avoiding a trade war, we must press china to open its markets to our exports and increased internal demands. so china's growth is not at the expense of our workers.
a fundamental question is, will we also find areas of cooperation? our relationship with china has been a transactional one now for 40 years. we buy our products, they buy our bonds. we to infuse the relationship with shared values. until that time, we should begin to build a broader agenda. the guys states and china can and should today start collaborating on clean energy technologies, combating global pandemic, and countering piracy on the high seas. women strengthen our relationship with india, a country that shares our values, religious tolerance, respect for human rights, and a commitment to democracy. we must begin with negotiations to reach an eventual trade
agreement, creating hundreds of millions of additional consumers for american products. our relationship with india needs to go beyond simply economics. the art of countries that lie along the indian ocean are among the most important trading lanes in the world. those lanes are critical for the free flow of commerce and remain vulnerable to threats large and small. i welcome the indian navy's transformation to a blue water navy. i will increase our military cooperation with india as president. they should share responsibility in maintaining peace and security in this vital region, and recognizing in the's emerging role, i will support our allies -- and recognizing
india's role. they represent 1/6 of humanity. we must take care of our own neighborhood. the united states has neglected its commitment to the country's in our backyard, the western hemisphere. the result of lost -- the result has been strained relations and escalating security challenges. latin america is not only in never with whom we share a rich history, is also a major source of untapped economic opportunity. u.s. exports three times as much to latin america as we do to china. but many nations in our hemisphere are experiencing a terrifying surge in violence that threatens to disrupt this process. the wave of bloodshed in mexico,
the result of corruption with drug cartels, has left 35,000 people dead, crating casualty's even inside america's borders. mexico stands ready to work with the united states in combating the drug war. we should commit to continue cooperation, including enhanced military engagement. in guatemala, escalating violence is resulting in an average of 55 murders per week, threatening an already overloaded justice system. these problems are not contained within bottom all possible borders. guatemala's threatening our neighbors and our sales. as president, i will not accept the status quo. i will support our neighbors to quickly and sternly eliminate
these terrorists. columbia offers a fine example of the benefits of american engagement and investment in our hemisphere. after years of drug violence, colombia, initially under the leadership of the present, it pushed back and weakened the drug cartels while professionalizing its military and police forces. colombia now aspires to be a leader in latin america, and they are well on their way. there is tremendous potential within brazil, the world's fifth largest company -- country. brazil is rich in opportunity. we should recognize with the initiation of bilateral trade negotiations. by forging partnerships, we can help develop economic stability throughout the region.
creating an environment in which all the peoples of latin america can rise. peace and prosperity throughout our neighborhood promotes peace and prosperity at home. i like to close by sharing a thought from my time in china. emotionally one of the most powerful things i did as ambassador or could do was meet with dissidents. i would do this frequently. sometimes i would go to them and sometimes they would go to the embassy. we did this quiet. this was a real peril for them. what was always clear to me was that those seeking reform and change the true strength -- grew strength from our nation's
values. the freedom of speech, assembly, religion, and press -- half a world away, they could see this country light. dissidents around the world can see a nation'slig light. you either have it or you do not. that is america's value in the world today. when we shine are light abroad, magnified by a strong core at home, we are invincible. ronald reagan said that america was an empire of ideals. if we maintain our empire of ideals, not only will be further the cause of liberty, human- rights, for markets, and free enterprise abroad, we will strengthen its right here at home.
and that is a cause ground which all of our citizens can and must unite. thank you for inviting me and for providing such warm hospitality. it is an honor to be with you all. [applause] >> we have time for a few questions. >> governor, thank you for your thoughtful remarks. one of the things you criticize the obama administration for was a failure resulting in the palestinian going to the u.n. for a vote on statehood. knowing that the israeli settlement activity is the major bar to negotiations, which you
have done -- or what will you do to make negotiations happened directed between israelis and palestinians? >> get back to the madrid understanding. get back to some progress that was made during at camp david accord. we must recognize that in a region of change, now may not be the time for negotiations. we have to listen very carefully to what leadership in israel has to say about the timing issue. if now is not the time, i don't think we can force the process. will we can do is to stand shoulder to shoulder with israel and remind the world what it means to be a friend and ally of the united states. this, we have not done in a long time. as long as there's no blue sky between the united states and israel, it doesn't matter.
so long as we're focused on israel's security, it doesn't matter if there is a point of concern that we have seen in generations past. that's what i think is most important. public articulation of the world about what it means to be a friend and ally of the united states. that is a statement that needs to be made with respect to israel. to live. [applause] -- thank you. >> with your experience in china and their unwillingness to change the dollar value and so forth, would you put a tax on the products that come into the united states? >> china is moving its currency, although the progress has been slow. when you look the progress over the past year, it's been 5% or
8% when elected the currency and you factor in inflation, which is running at 5% or more in china. they have to be looked at together. they are moving not because the united states is telling them to move or because europe is telling them to move, but because they are making a transition to more of a consumption-based model. they have to have a currency that is more tied to market value then where it is today. so they're moving based upon their own domestic interest. i would like to say the united states based on the pressure we have put on them is causing that movement. i think that is part of it. the chinese see this as moving in their interest to move. i would like to see the message
out of capitol hill, which is we're going to move forward with legislation -- i think that in practice would be bad because it would result in a trade war. the last thing you need between the two top economist in the world is a trade war, particularly during a recession. it would impact all the people who can little afford the trade war -- small business, our exporters. i would take that to congress and sit down with the leadership in china and say, this is where my congress is coming from. we should be moving that currency faster just a little faster. you need leverage to get things done with the chinese. part of my speech in getting back in strengthening our core is because i realize that we need leverage. our leverage tradition has been
a strong economy, where we're able to negotiate trade alliances, which are a greater alliance to other countries. when our economy is weak, we have little leverage in negotiations. -- we will have our ups and downs, reflecting on 40 years of that bilateral relationship. we're 40 years into have gone from zero trade to foreign billion dollar -- $400 billion in trade. china reform and opening markets will allow more of our exports into their market. that is good for us. that is a job creator here in
the united states. ,000 to 12,000 10 thousand jobs you create on the home front. those disagreements are going to be tough and profound and broadcast in the headlines to the rest of the world. we must do some work in terms of finding areas that are considered common ground combat areas of commonality, whether that is regional security or economic rebalancing or new energy technologies or finding breakthroughs in human disease. there are some things we should be work not where we can bring that which we're working on in abundance and strength and trying to improve our humankind.
we should be working on issues like that. we're in it for the long haul. the 21st century will be this century were the united states and china try to forge a relationship that is sustainable. we have a lot of work yet to go. this will require leadership that understands how the chinese system operates. knows their history. i bring this to the table on like anyone else in the race. >> i hope you can control congress if you're elected president. [applause] >> thank you. right down here. >> i like what you said about india. i think it makes sense when you said given the population --
given the strain placed it between our countries, a dozen that provoke pakistan? >> of course it would provoke pakistan. they make certain diplomatic gestures to china to counteract what it is that we do. in the name of security in south asia, a strong u.s.-indian relationship is going to be critical. i think it serves our economic interests and our security and military interests in providing greater stability in what has been a troubled part of the world. i like the idea of a fortified bilateral relations of with india that allows us the ability to understand and interpret what is happening in the heart of south asia. we need more of that. we need to know where the bad actors are.
we need to better understand the way people are being educated in south asia. the stronger relationship with india would allow us to gain more of that kind of understanding which longer-term serves our security interests and the security interests of the region and the world. >> we have time for one more question. >> good to see you. >> you do not mention the united nations at all in your speech. the see the united nations as declining influence in the world? do you see the united nations stressing the sovereignty of the united states? >> i see the united nations playing a role in peacekeeping. i think some of that work has been done well. beyond that, i do not like the
inherent anti-americanism that i find exist within the united nations and at times it anti- israel bias. that concerns me. as we regain our strength, that allows us to do more on a bilateral relationship with other countries. the u.n. doesn't lead the world. the united states leads the world. we're in a better case to do that by shoring up relationships with friends and allies who need to be reminded what it means to be a friend and ally of the united states. thank you all so much for having me. [applause] thank you. thank you, all. >> thank you so much for joining