By Marjorie Cohn
June 15, 2022:
Information Clearing House
--
In
a shameful opinion that broke down along
ideological lines, the right-wingers on the
Supreme Court ruled 6-3 last month that people
who receive ineffective assistance of counsel
are not entitled to present new evidence to
prove their innocence in federal court.
After the decision
in Shinn
v. Ramirez and Jones —
which flies in the face of the court’s recent
precedents protecting the Sixth Amendment right
to counsel — even people who can demonstrate
their innocence could be subjected to the
shameful practice of capital punishment.
“The court’s
decision will leave many people who were
convicted in violation of the Sixth Amendment to
face incarceration or even execution without any
meaningful chance to vindicate their right to
counsel,” Sonia Sotomayor wrote in dissent,
adding that “the court hamstrings the federal
courts’ authority to safeguard that right” and
“reduces to rubble” many Sixth Amendment
constitutional rights.
Indeed, the
ramifications of the Shinn decision are
frightening. “When a capital defendant is poorly
represented by an appointee of the State, the
State gets to defend the unfairly won conviction
in federal court and bar the defendant from even
showing that crucial evidence was omitted from
the trial due to lawyer malfeasance,” appellate
habeas defense attorney Chuck Sevilla told Truthout.
“This obvious Kafkaesque scenario could, and
probably will, lead to the execution of the
innocent.”
The court used a
pair of Arizona cases to reach this decision.
The Case of
Barry Lee Jones
In 1994, Barry Lee
Jones was charged with murdering his
girlfriend’s 4-year-old daughter, Rachel Gray.
The prosecution argued that Rachel died from an
injury while in Jones’ care. But Jones’ trial
attorney didn’t perform any investigation, which
would have uncovered medical evidence that
Rachel’s fatal injury could not have progressed
as rapidly as the prosecution claimed.
This evidence may
have demonstrated Rachel was injured when she
wasn’t in Jones’ care. Since the jury never
heard this evidence, they convicted Jones of
murder and the trial judge sentenced him to
death.
Arizona law didn’t
allow Jones to argue on direct appeal that his
trial lawyer provided him with ineffective
assistance of counsel. The first time he could
raise this issue was in a state habeas corpus
proceeding, where Jones once again was appointed
an incompetent lawyer, who lacked
the minimum qualifications for
appointment in a capital case.
The new lawyer also
carried out almost no investigation, failing to
investigate the ineffective assistance of Jones’
trial attorney. The state habeas lawyer didn’t
even allege in the habeas petition that Jones’
trial lawyer was ineffective for failing to
investigate the medical evidence. The Arizona
courts denied Jones’s habeas petition.
Jones filed a
petition for habeas corpus in Federal District
Court, where he was finally represented by a
competent attorney. The District Court held an
evidentiary hearing where Jones’ lawyer
presented exonerating evidence that could have
been offered by his trial counsel and state
habeas counsel.
After the hearing,
the District Court found that Jones’ state
habeas lawyer provided ineffective assistance of
counsel and therefore Jones could raise the
issue for the first time in federal court. The
District Court also concluded that there was a
“reasonable probability that the jury would not
have unanimously convicted [Jones] of any of the
counts” if Jones’ trial attorney had “adequately
investigated and presented medical and other
expert testimony to rebut the State’s theory” of
Jones’ guilt.
Arizona appealed
the District Court’s decision, arguing that the
Antiterrorism and Effective Death Penalty Act
prevented the District Court from considering
new evidence. The Ninth Circuit Court of Appeals
affirmed the District Court’s ruling.
The Case of
David Ramirez
David Ramirez was
convicted of capital murders of his girlfriend
and her daughter. During the sentencing phase,
the state court appointed a psychologist to
conduct a mental health evaluation of Ramirez.
But Ramirez’s trial lawyer failed to provide the
psychologist with evidence that Ramirez had an
intellectual disability which could mitigate
against a death sentence and in favor of life in
prison without parole. Ramirez was sentenced to
death
Like Jones, Ramirez
was appointed a lawyer for his state habeas
claim. And like Jones, this was the first time
Ramirez had an opportunity to claim he had
received ineffective assistance of trial
counsel. Again, as in Jones’ case, Ramirez’s
state habeas attorney didn’t conduct an
investigation despite knowing that Ramirez might
suffer from intellectual disabilities.
Neither did
Ramirez’s state habeas attorney argue that trial
counsel provided ineffective assistance of
counsel by not developing and presenting
mitigating evidence. The Arizona courts denied
Ramirez’s habeas petition.
A Federal District
Court appointed the Arizona federal public
defender to represent Ramirez in a federal
habeas proceeding, citing “concerns regarding
the quality” of his prior attorneys.
Ramirez argued in
his habeas petition that his trial counsel had
provided him with ineffective assistance. He
submitted evidence from family members, who had
never been contacted by Ramirez’s trial lawyer
and his state habeas lawyer. This evidence
demonstrated that Ramirez ate on the floor while
growing up and slept on dirty mattresses in
places filthy with animal feces; that his mother
beat him with electrical cords; and that he had
multiple apparent developmental delays, which
included “delayed walking, potty training, and
speech” and he was unable to engage in basic
hygiene or use eating utensils.
The court-appointed
psychologist who evaluated Ramirez for the
sentencing phase of the trial told the habeas
court that if the trial attorney had given him
Ramirez’s school records and IQ scores, he would
have insisted on comprehensive testing.
Ramirez’s trial counsel submitted an affidavit
saying she wasn’t prepared to handle “the
representation of someone as mentally disturbed
as … Ramirez.”
But the District
Court denied Ramirez’s ineffectiveness claim and
refused to allow him to present further evidence
in the federal habeas proceeding. Arizona
conceded that Ramirez’s state habeas lawyer
performed deficiently.
The Ninth Circuit
then reversed and directed the District Court to
receive evidence to support Ramirez’s
ineffectiveness claim, saying he had been
“precluded from such development because of his
post-conviction counsel’s ineffective
representation.”
The Supreme Court
reversed the Ninth Circuit decisions in both
Jones’s and Ramirez’s case
Trapped in a
Catch-22
In 2012, the
Supreme Court ruled in Martinez
v. Ryan that
defendants could argue that they received
ineffective assistance of counsel for the first
time in federal court. But on May 23, the court
ruled in Shinn that these defendants
cannot present evidence to support those claims.
Defendants who are
convicted in state court must first raise
constitutional challenges to their convictions
in state court. If they don’t, they are in
“procedural default” and a federal court cannot
review their constitutional claims.
In Martinez,
however, the court held that if a state allows a
prisoner to raise a claim of ineffective
assistance of counsel for the first time in a
state habeas corpus proceeding (after a direct
appeal has already been heard), the lawyer’s
ineffectiveness at the habeas stage constitutes
“cause” to excuse the procedural default.
The Antiterrorism
and Effective Death Penalty Act (with some
exceptions) forbids a federal court from holding
an evidentiary hearing where the defendant “has
failed to develop the factual basis of a claim
in State court proceedings.”
The issue in Shinn was
how to reconcile Martinez’s permission
for a prisoner to claim ineffective assistance
of trial counsel with the Antiterrorism and
Effective Death Penalty Act’s prohibition on
presenting evidence to support that claim.
Clarence Thomas
wrote the Supreme Court’s
majority opinion in Shinn
on behalf of himself, Samuel Alito, Neil
Gorsuch, Brett Kavanaugh and Amy Coney Barrett.
The court held that “a federal habeas court may
not conduct an evidentiary hearing or otherwise
consider evidence beyond the state-court record
based on ineffective assistance of state
post-conviction counsel.”
Trapping defendants
in a Catch-22 conundrum, the majority ruled that
defendants are “at fault” for failing to raise a
claim of their lawyer’s ineffectiveness in state
court, even though that failure was caused by
the errors of their lawyer.
In her dissent,
joined by Stephen Breyer and Elena Kagan,
Sotomayor explained the unfairness of the
majority’s holding. She wrote, “A petitioner
cannot logically be faultless for not bringing a
claim because of post-conviction counsel’s
ineffectiveness, yet at fault for not developing
its evidentiary basis for exactly the same
reason.”
Ironically, while
the majority held that Jones and Ramirez had
defaulted by not raising their claims in the
lower court, the right-wingers excused the state
from failing to object to the evidentiary
development of Ramirez’s claim and raising an
Antiterrorism and Effective Death Penalty Act
argument in the District Court or in the Ninth
Circuit.
In a footnote,
Thomas wrote, “Because we have discretion to
forgive any forfeiture, and because ‘our
deciding the matter now will reduce the
likelihood of further litigation’ in a
30-year-old murder case, [citation omitted], we
choose to forgive the State’s forfeiture before
the District Court.”
Sotomayor called
the majority opinion “perverse” and “illogical”
and wrote that it “makes no sense.” She noted
that since claims of ineffective assistance
often involve errors of omission (such as the
failure to properly investigate), the proof of
ineffectiveness will necessarily require
evidence outside of the trial record.
“To put it bluntly:
Two men whose trial attorneys did not provide
even the bare minimum level of representation
required by the Constitution may be executed
because forces outside of their control
prevented them from vindicating their
constitutional right to counsel,” Sotomayor
wrote.
The court’s ruling
has alarming implications. It will preclude
defendants from presenting evidence that they
are innocent. “Without ineffective assistance of
counsel claims, there is no procedural vehicle
to bring evidence of actual innocence in most
states,” Michigan
law professor Andrew Fleischman tweeted.
Nearly 3,000 people
have suffered wrongful criminal convictions
since 1989, according
to the Innocence Project,
and 186 people sentenced to death have been
exonerated since 1973.
Moreover, as
I wrote in 2014,
the death penalty leads to the execution of
innocent people, is racist in its application
and imposition, does not deter homicide, is
likely unconstitutional and flies in the face of
nearly all industrialized countries that have
abolished capital punishment.
Shinn “effectively
ensures that innocent people will remain
imprisoned,” Salon’s
Mark Joseph Stern tweeted.
It also means that innocents will likely be
executed, as habeas attorney Sevilla predicts.
Attorney Robert
Loeb, who represented Jones and Ramirez in the
Supreme Court, called the Shinn decision
“tragic,”
not just for his clients but also for myriad
prisoners.
“The court’s
decision effectively closes the federal courts
to many prisoners with extremely serious
constitutional ineffective trial counsel claims
simply because they were unlucky enough to have
incompetent lawyers at every stage of state
court proceedings,” he said.
Stern sees Shinn as
one more in “the unceasing stream of callous,
radical, reactionary decisions coming from the
Supreme Court,” which “is fairly easy to miss
because so many of them involve complicated
points of law.” Stern added, “But the
conservative majority is very much in the midst
of a revolution. And it is a brutal one.”
Marjorie Cohn
is professor emerita at Thomas Jefferson School
of Law, former president of the National Lawyers
Guild, and a member of the bureau of the
International Association of Democratic Lawyers
and the advisory board of Veterans for Peace.
Her books include Drones
and Targeted Killing: Legal, Moral, and
Geopolitical Issues.
- This article is from Truthout
The views expressed in this article are
solely those of the author and do not necessarily
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