Which Fundamental Constitutional Right Did the Supreme Court Gut Today?
BY: Leah Litman
On Monday, the Supreme Court released an opinion that will cause profound suffering, and perhaps even death as people are denied their constitutional rights. No, the court did not release the final version of the opinion in Dobbs v. Jackson Women’s Health Organization, the case in which a leaked draft revealed that the court is poised to overrule Roe v. Wade and Planned Parenthood v. Casey which recognize the right to end a pregnancy through an abortion. Instead, the decision today is a little-known habeas decision, Shinn v. Martinez Ramirez involving two men in Arizona who have been condemned to death row. The consequences of Martinez Ramirez will also be disastrous for anyone relying on their constitutional right to effective counsel. And, like the Dobbs leak, today’s decision also makes clear that the court’s conservative supermajority is hell-bent on smashing and grabbing precedent and constitutional rights no matter the consequences. Shinn v. Martinez Ramirez involves a pair of consolidated cases in which two people who were convicted in Arizona state courts argued that they had received ineffective assistance at their trials. The two defendants in Martinez Ramirez argued that the process of obtaining their convictions or sentences violated the 6th Amendment to the Constitution, which guarantees the effective assistance of counsel. One of the defendants, Barry Jones, maintained his lawyers were so ineffective, that they failed to uncover evidence that he was innocent of the crimes. Jones was convicted at trial and sentenced to death. The other defendant argued that his lawyers failed to uncover mitigating evidence that would have persuaded the jury to sentence him to a term of years in prison, rather than the death penalty.
That two Arizona defendants would have received constitutionally ineffective assistance at their trials is no accident. Indigent defense – defense for people who lack the resources to hire their own lawyer – is in crisis in this country. Indigent defense is woefully underfunded; and public defenders handle hundreds of cases per year, many more than they have the time or resources to manage effectively. States also heavily restrict the procedures and resources that would allow public defenders to develop their cases in greater depth.
Unfortunately, the problem does not end there. Instead, it continues throughout state criminal proceedings into post-conviction proceedings, where defendants are supposed to be able to enforce their 6th Amendment right to effective assistance of counsel. That is because when a defendant receives ineffective assistance of counsel at trial, the trial lawyer can’t simultaneously argue that they are providing ineffective assistance. Neither can the defendant’s lawyer on appeal, when the case is restricted to the record at trial. Ineffective assistance claims often depend on evidence outside the record, like what a lawyer failed to uncover. And so ineffective-assistance-of-trial-counsel claims are raised during post-conviction proceedings that happen after an appeal. During post-conviction proceedings, a defendant is supposed to be able to expand the initial trial record and point to all of the things that his trial lawyer failed to uncover.
That’s how it’s supposed to work. But just as there is an indigent defense crisis in this country, there is also a post-conviction crisis. Post-conviction proceedings are woefully underfunded, and lawyers are limited in the time and resources they have to pursue post-conviction relief. So defendants who are represented by ineffective lawyers at trial may then be represented by an ineffective lawyer during their post-conviction proceedings when they are supposed to be arguing that their trial lawyer was ineffective. And – surprise – the ineffective post-conviction lawyer may fail to argue that the trial lawyer was ineffective, or may fail to develop any evidence in support of that claim.
A decade ago, the Supreme Court responded to this problem with a simple and elegant solution. In a pair of decisions, the court said that if a defendant is represented by an ineffective lawyer during their post-conviction proceedings, and that lawyer fails to argue that the defendant was represented by an ineffective lawyer during the defendant’s trial, a federal court can still hear the defendant’s claim that they received ineffective assistance at trial in violation of the 6th Amendment. That’s because the defendant isn’t at fault for failing to present their ineffective-assistance-of-trial counsel claim when, through no wrongdoing on their part, the state appoints an ineffective lawyer to represent them during post-conviction proceedings, and that ineffective lawyer fails to argue the defendant received shoddy legal help during trial.
That’s where the law stood before today when the court took a wrecking ball to those decisions. Martinez Ramirez held that there is nothing a federal court can do when a defendant received ineffective assistance at their trial in violation of the 6th Amendment and was then appointed an ineffective attorney during post-conviction proceedings who did not present evidence to support the claim that the defendant received ineffective assistance at trial. Specifically, the court held that the federal statute governing post-conviction review, the Anti-Terrorism and Effective Death Penalty Act prohibits the federal court from considering evidence that the ineffective post-conviction lawyer failed to uncover. As it did in the case of Jones, this evidence may indicate that the defendant is innocent of the crime for which he was sentenced to death.
The court recognized that Martinez Ramirez nullified the prior decisions that offered defendants a shot at relief, writing that “any such hearing” permitted under those decisions “would serve no purpose,” since a federal court could not consider the evidence in deciding whether the defendant’s rights under the 6th Amendment were violated. As Justice Sotomayor wrote in a dissent for the three Democratic appointees, the court’s decision “makes illusory the protections of the 6th Amendment.”
Justice Sotomayor’s dissent accurately described the court’s decision as “perverse” and “illogical,” arguing that “It makes no sense to excuse a habeas petitioner’s counsel’s failure to raise a claim altogether because of ineffective assistance in post-conviction proceedings” but to “… fault the same petitioner for that postconviction counsel’s failure to develop evidence in support of the trial-ineffectiveness claim.” Rather, Sotomayor continues, by definition, the defendants “are not at fault for their state postconviction counsel’s failure to develop evidence. [They] acted diligently, but their attorneys’ errors, paired with the State’s choice of how to structure their review proceedings, constituted external impediments.” Simply put, the defendants haven’t failed to develop the factual basis of their claims. And AEDPA, she continues, accordingly doesn’t prevent them from introducing new evidence in federal court when properly interpreted.
It’s true, of course, that a rational governor or parole or commutations board might pardon or commute the sentences of persons who were convicted of crimes they did not commit, or persons who received sentences they shouldn’t have. But that doesn’t excuse the court’s decision that gives them the choice not to do so – and to potentially go ahead and execute innocent people whose constitutional rights were violated.
It is no secret that there are innocent people in prison for crimes they did not commit. Nor is it a secret that some of those innocent people were sentenced to death. Some of them are probably still on death row today. In this case, for example, four federal judges on two different courts concluded there was a reasonable probability that Barry Jones did not commit the crime for which he was sentenced to death after a trial where the state denied him his 6th Amendment right to the effective assistance of counsel. Today, the Supreme Court essentially told the state that it can go ahead and execute him anyway.