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There have been 186 death row exonerations since 1973 in the U.S., according to the Death Penalty Information Center. That’s 186 formerly incarcerated people who were found innocent after having been sentenced to death. People who were able to be reunited with their families, get new chances at life — at freedom. Ten of them came from Arizona.
On Wednesday, the Supreme Court is set to hear two little-noticed cases from Arizona, Shinn v. Ramirez and the companion case Shinn v. Jones, that could make it substantially harder for other innocent people to be exonerated.
The cases raise fundamental questions about whether the federal courts must allow states to execute people whose convictions or sentences are illegal.
The cases raise fundamental questions about whether the federal courts must allow states to execute people whose convictions or sentences are illegal, including people who may very well be innocent. While the formal issues in the cases are highly technical, they both are of immense practical importance to the enforcement of constitutional rights and the fundamental fairness of the criminal legal system.
When indigent defendants go to trial, the Sixth Amendment requires states to provide them with lawyers. (The Sixth Amendment applies to county and local proceedings as well; here, state-level proceedings refer to proceedings not in federal courts.) The appointed trial counsel, who must be what is known as an “effective assistance of counsel” or competent representation, is there to test the state’s evidence and ensure that the state follows the constitutional rules. Defendants who are found guilty can appeal their convictions to higher courts. And after defendants appeal, they may return to their trial courts in what are called post-conviction proceedings, where they may introduce new evidence to challenge their convictions.
That new evidence might include showing how a state-issued trial lawyer was ineffective. That could happen when the lawyer fails to conduct thorough investigations or consult experts, which happens more often than we think.
During the post-conviction proceedings, the defendant will need a new lawyer to raise this claim about the trial lawyer — the claim that the defendant did not receive the effective assistance of counsel required by the Sixth Amendment. The issue in the Arizona cases is whether people whose state-appointed lawyers did not raise that Sixth Amendment argument in the post-conviction proceedings may introduce evidence in federal court that their trial counsel was constitutionally ineffective and that their resulting convictions were therefore illegal.
Think about it like this: If attorneys in post-conviction proceedings are so ineffective that they fail to argue that defendants’ trial counsel was inadequate, that makes it difficult to ensure that defendants receive the effective assistance of trial counsel that the Constitution requires. For these defendants, the state failed not once but twice to supply them with adequate representation: at trial and then again during post-conviction proceedings.
The right to counsel is one of the most fundamental rights in the criminal legal system.
The right to counsel is one of the most fundamental rights in the criminal legal system. It is meant to safeguard against convicting innocent people and imposing unlawful sentences, as good lawyers hold the state to its constitutional obligations by pointing out where it may have violated them.
While the cases now before the Supreme Court are specifically about death penalty convictions, anyone who does not have the funds to secure the best legal defense — including those facing lesser sentences — can be victims of the state’s assigning inadequate legal representation.
In 2012, recognizing the problem of states appointing ineffective counsel, the Supreme Court ruled (7-2) in Martinez v. Ryan that people convicted in state court may argue that they received ineffective assistance of trial counsel if they did not raise that claim in state proceedings through no fault of their own.
Arizona, where Barry Jones and David Ramirez were convicted, argues that, despite the Supreme Court’s decision in Martinez, the 1996 federal statute restricting federal courts from reviewing state criminal convictions (the Anti-Terrorism and Effective Death Penalty Act) bars federal courts from considering evidence not presented in state courts.
One problem with this argument is that it is the state, not the defendant, that ensured that the evidence would not be presented to state courts — by providing the defendants with ill-equipped and underfunded lawyers in post-conviction proceedings who failed to argue that the defendants received ineffective assistance at their trials. And that makes all the difference under the federal statute, which restricts people from introducing new evidence in federal court only if they “failed to develop” their claims in state court.
Arizona is urging the Supreme Court to adopt a position that is so extreme and so untethered from the relevant law that no federal court of appeals has ever adopted it.
Arizona is urging the Supreme Court to adopt a position that is so extreme and so untethered from the relevant law that no federal court of appeals has ever adopted it. And no justices to date have even hinted at Arizona’s position.
It is not difficult to see how Arizona’s position increases the odds of preserving illegal convictions and flawed sentences and risks executing innocent people. Consider the case of Barry Jones. He was convicted in 1995 of murdering the 4-year-old daughter of his girlfriend after the state introduced questionable evidence about the timing of the child’s injuries. Jones’ lawyer never investigated the state’s theory, and the state-appointed lawyer in his post-conviction proceedings never argued that his trial lawyer was ineffective for failing to investigate the forensic theory and evidence.
In federal court, however, Jones got a new lawyer, who argued that his trial counsel was ineffective for failing to investigate the state’s evidence. And the new lawyer presented extensive evidence that the victim’s injuries did not occur while she was with Jones. Based on this evidence, as well as evidence that the state’s forensic conclusions relied on a scientifically unreliable method, two federal courts concluded that “there is a reasonable probability” that his jury would not have convicted him.
Arizona is asking the court to say that the federal court could not consider that newly presented evidence of Jones’ innocence. Its position would mean that federal courts are barred from receiving evidence that lawyers failed to uncover that could prove their clients’ innocence – and that now they may be executed for crimes they may not have committed.
Nothing about federal law or the federal courts requires that result. Instead, basic principles of fairness and due process require the Supreme Court to reject it.
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Leah Litman is an assistant professor of law at the University of Michigan Law School.
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