Oral arguments are scheduled today before the US Supreme Court in the case of Shinn v. Ramirez and Jones, a case out of Arizona involving whether defendants who were convicted and sentenced to death could argue in Federal Court that their post-conviction lawyers were ineffective if they did not first make that argument in State court.
But first some background on how we got here. One of the worst legacies of the Bill Clinton Administration was the passage of the Anti-Terrorism and Effective Death Penalty Act of 1996 “AEDPA”).
AEDPA was but one of many pieces of “get tough on crime” legislation that Congress passed to favor prosecutors at the expense of the accused and the unjustly convicted. Sold as “reform” legislation to cure a nonexistent problem, the AEDPA hampers the ability of wrongfully convicted defendants, and those who were convicted after unfair trials, to regain their freedom. It severely limited the use of the Great Writ of Habeas Corpus. The AEDPA “reformed” habeas corpus by limiting its effectiveness. The most troubling procedural changes require a prisoner to raise all claims in one collateral attack and to file that challenge within a year after the prisoner’s conviction became final. With very limited exceptions, the AEDPA prohibits “successive” collateral attacks and there is very little one can do if the year deadline passes and you did not file. Courts have thrown out writs that were one day late even though they had meritorious arguments.
But for the purposes of this article, the AEDPA’s most significant obstacle was that it narrowed the grounds for relief that are available under habeas corpus. For example, AEDPA bars federal courts from considering any evidence supporting wrongful conviction claims that was not first presented in state court and review of state convictions is hampered by the AEDPA’s limitation of federal reconsideration of facts (and, to some degree, legal issues) that were decided by a state court.
So this presented a “Catch-22” situation: If your crappy State trial lawyer did not raise certain arguments in your State case, those arguments were lost forever and could not be brought in Federal court. But could you argue for the first time in Federal court that you did not get a fair trial because your crappy post-conviction lawyer did not make those arguments in State court? In Martinez v. Ryan a 7-2 decision written by Justice Kennedy in 2012, SCOTUS did not rule that under the structure of AEDPA it would violate the Constitution to have a person claiming wrongful conviction barred from making an argument that his lawyer was ineffective in preserving. Instead, the Court sidestepped that question, ruling that ineffective assistance of postconviction counsel is a basis to “excuse” a procedural default and allow a person to raise ineffectiveness in the federal court. Of course, Justices Scalia and Thomas dissented stating that there is NO constitutional right to an effective lawyer in post-conviction proceedings.
But the State of Arizona is now taking a shot at Martinez v. Ryan. In the cases of David Martinez Ramirez and Barry Lee Jones, death row inmates, their post-conviction lawyers did not make several arguments about their trial lawyer’s ineffectiveness. A Federal court and the 9th Circuit Federal Appeals Court agreed and found that the lawyers were ineffective. In Ramirez, the lawyer failed to use psychological testing and examination which would have shown a mental disease defense to Ramirez’ conduct. But in Jones’ case, the Federal courts found that had the lawyer done his job “There is a reasonable probability that his jury would not have convicted him of any crime.” They also found that “a minimally competent defense investigation” would have uncovered forensic evidence demonstrating that Mr. Jones could not have committed the crime. So its not just that Jones won on “a technicality,” but the Federal courts believed there was strong evidence of his actual innocence which was never presented and the lack of the presentation was never argued by his post-conviction lawyer. As Christina Swarns, Executive Director of The Innocence Project, says in today’s New York Times “Mr. Jones lost the lawyer lottery twice.”
Arizona is arguing that those Federal courts should never have examined Jones’ claim of ineffective assistance of post-conviction counsel because the facts underlying the claim were not developed in State court first. So they will likely argue that Martinez only decided that a person could raise the issue but that AEDPA still prevents a person from developing the issue for the first time in Federal court. Since the facts supporting the claim were not brought out in State Court, Arizona argues, Jones and Shinn are screwed.
The grant of certiorari itself does not bode well for Jones and Ramirez given the absence of a circuit split and the Supreme Court’s love for reversing the 9th Circuit. The court’s composition has changed dramatically since 2012 when Kennedy garnered a 7-2 majority to rule for the defendant in Martinez – which included Chief Justice John Roberts and Justice Samuel Alito. The three new justices who have joined the court since that time are all committed “textualists,” and Justice Neil Gorsuch in particular has been particularly hostile to defendants challenging state court convictions in Federal court. Furthermore, the new justices have so far shown little hesitation to reexamine and undercut Kennedy’s legacy in criminal cases in other case, and these Arizona cases may be their opportunity to do so again.
It will mean that the wrongfully convicted will lose a very narrow window given to them by Martinez. Circumstances will definitely arise where valid and compelling arguments were not raised in State court and are blocked from being presented in Federal court. This is especially the case in States like Arizona that has a history of providing low-paid, incompetent lawyers to indigent defendants, especially in post-conviction settings. So now those who are innocent will have to pay the ultimate price for their lawyers incompetence all to make the death penalty “more effective.” ‘Murica.
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