Supreme Court Turns a Blind Eye to Wrongful Convictions, Guts 6th Amendment Rights to Effective Counsel
8.9.2022
The Supreme Court’s just-completed term has left many with concerns. In about half the states, women no longer retain their constitutional rights to bodily autonomy and reproductive health.[1] The lines separating what Justice Neil Gorsuch now refers to as the “so-called separation between church and state”[2] have been weakened.[3] New York’s century-old gun safety regulations have been declared unconstitutional.[4] And the court stripped the Environmental Protection Agency of the power to respond to the climate crisis.[5] In the midst of these media-grabbing decisions, it would be unsurprising if you had not noticed, another key ruling is the court’s sapping of the cherished Sixth Amendment right to effective criminal defense counsel.
In Shinn v. Ramirez, the court gutted its own precedents to render federal courts powerless to vindicate prisoners’ fundamental Sixth Amendment rights to effective assistance of trial counsel.[6] The Shinn decision will make it more difficult to overcome wrongful convictions, and worse, in those states that still carry out capital punishment, Shinn will make it easier to carry out executions of prisoners who were indisputably denied their Sixth Amendment rights – even those who are actually innocent. Shinn is an important decision (and not in a good way) that deserves more attention.
Any serious Sixth Amendment discussion usually begins with Gideon v. Wainwright, and we do so here. Gideon enshrines a bedrock Sixth Amendment principle, essential to constitutional justice – a criminal defendant’s right to counsel at trial.[7] The court described this right as indispensable to the protection of the right to a fair trial and “fundamental human rights . . . [because] if the institutional safeguards it provides be lost, justice will not still be done.”[8] The court reaffirmed this principle in Strickland v. Washington, when it held that fulfillment of Gideon’s promise demanded professionally competent, reasonably effective assistance of counsel at trial.[9]
Finally, just a decade ago, the court announced a landmark decision in Martinez v. Ryan in which Strickland’s Sixth Amendment protection of the right to effective trial counsel was extended.[10] There, the court abrogated prior decisions barring federal habeas review of trial counsel ineffectiveness claims whenever the prisoner had failed to first assert the claim in initial state-court post-conviction proceedings, because his post-conviction counsel neglected to raise the claim. Instead, Martinez held that a prisoner’s failure to present the claim in state court post-conviction proceedings would be excused, when the prisoner’s post-conviction counsel was also constitutionally ineffective within the meaning of Strickland.[11] After Martinez, if a prisoner failed to raise his trial counsel ineffectiveness claim in an initial state post-conviction proceeding, the court would excuse that failure if it was the result of negligent state post-conviction counsel.
Martinez was a critically important holding because, in most states, when the first state post-conviction attorney neglects to raise a constitutional claim in the first post-conviction proceeding, the prisoner is forever barred from bringing the claim in a later state court proceeding. This means, in the words of Martinez, that in the absence of federal review, “it is likely that no [] court at any level will hear the prisoner’s claim.”[12] Martinez eliminated that injustice.
But it seems that precedents don’t carry as much weight as they used to in the Supreme Court. In its recent decision in Shinn v. Ramirez, the court took a wrecking ball to Martinez, and by turns, Gideon and Strickland. What the court had granted in Martinez it gutted in Shinn.[13] As explained in the three-justice dissent, Shinn “all but overrules [Martinez],” and “reduces to rubble many habeas petitioner’s Sixth Amendment rights to effective assistance of counsel.”[14] Shinn, now “hamstrings the federal courts’ authority to safeguard” the right to effective assistance of trial counsel.[15] The results will be tragic and “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.”[16]
The respondents in Shinn were Arizona death-sentenced prisoners, Barry Jones, and David Ramirez.[17] Jones and Ramirez relied on Martinez to raise their ineffective assistance of trial counsel claims in federal court, where they both proved that their appointed state post-conviction lawyers were ineffective for failing to raise substantial trial counsel ineffectiveness claims. Ramirez and Jones won relief in the lower courts in federal habeas proceedings based on evidence that their respective trial counsel were constitutionally ineffective.[18] The Supreme Court reversed their grants of relief.[19]
In Shinn, the court explained that the Martinez decision was well and good; that is, Martinez could excuse the failure to first present a claim asserting ineffective assistance of trial counsel in state court, when the state post-conviction counsel negligently failed to do so. But then the court hobbled Martinez by asserting that a provision in the in the Antiterrorism and Effective Death Penalty Act of 1996 at 28 U.S.C. § 2254(e)(2) barred federal courts from actually considering evidence supporting a trial counsel ineffectiveness claim when the same negligent post-conviction counsel who failed to raise the claim also failed to present supporting evidence to the state court.[20] In other words, a prisoner’s failure to bring a claim in state court can be excused under Martinez due to state post-conviction counsel’s negligence, but the prisoner’s failure to develop and present evidence to the state court supporting that same, unraised, claim cannot be excused based on state post-conviction counsel’s negligence because the statutory text in § 2254(e)(2) requires the negligence of post-conviction counsel to be imputed to the prisoner.
But make no mistake. The actual text of the statute says no such thing, explicitly or by reasonable implication. It is no wonder that in the decade between the decision in Martinez and the decision in Shinn, not a single lower federal court (district court or court of appeals) adopted Shinn’s twisted construction of the habeas statute.[21] The Shinn dissenters called the court’s reasoning “perverse” and “illogical,” an assertion easily supported.[22]
“Martinez and Trevino[23] establish that such a petitioner is not at fault for any failure to bring a trial-ineffectiveness claim in state court. Despite these precedents, the court today holds that such a petitioner is nonetheless at fault for the ineffective assistance of post-conviction counsel in developing the evidence of trial ineffectiveness in state court. The court instead holds that a petitioner in these circumstances, having received ineffective assistance of trial and post-conviction counsel, is barred from developing such evidence in federal court.” Id., at 1741
“It makes no sense to excuse a habeas petitioner’s counsel’s failure to raise a claim altogether because of ineffective assistance in postconviction proceedings, as Martinez and Trevino did, but to fault the same petitioner for that post-conviction counsel’s failure to develop evidence in support of the trial-ineffectiveness claim. In so doing, the court guts Martinez’s and Trevino’s core reasoning. The court also arrogates power from Congress: the court’s analysis improperly reconfigures the balance Congress struck in the Antiterrorism and Effective Death Penalty Act between state interests and individual constitutional rights.”[24]
The driving force of the court’s decision was its so-called respect for state’s rights. Justice Thomas made this clear, explaining that “[u]ltimately . . . [i]n our dual-sovereign system, federal courts must afford unwavering respect to the centrality of the trial of a criminal case in state court.”[25] Otherwise there would be “an affront to the State and its citizens who returned a verdict of guilt after considering the evidence before them.”[26] And with that, the court eradicated any principled basis for protecting the Sixth Amendment guaranty of a fair trial led by constitutionally adequate counsel; “categorically prioritize[ing] maximal deference to state-court convictions over vindication of the constitutional protections at the core of our adversarial system.”[27] Shinn will make it virtually impossible for many wrongfully convicted and wrongfully sentenced prisoners to vindicate their Sixth Amendment rights to effective assistance of trial counsel. Barry Jones’ case provides a prime example.
Jones was charged with the murder of his girlfriend’s 4-year-old daughter, Rachel Gray. The State argued that Rachel died as a result of an injury she sustained while in Jones’ care. Jones’ trial counsel failed to undertake even a cursory investigation and, as a result, did not uncover readily available medical evidence that could have shown that Rachel sustained her injuries when she was not in Jones’ care. Having heard none of this evidence, the jury convicted Jones and the trial judge sentenced him to death.[28]
In federal habeas proceedings, Jones’s conviction was overturned (subject to Arizona’s right to retry him) on grounds that he was denied his Sixth Amendment right to effective assistance of trial counsel.[29]
Of course, the Supreme Court reversed the grant of habeas relief to Jones, but not because he had failed to prove his constitutional rights had been denied to him nearly 30 years ago. Instead, the court turned a blind eye to the constitutional violations in Jones’s case, including his obvious wrongful conviction, and corresponding decades on death row, to achieve its goal of paving the path to deny any federal review of his claim. This also earned deserved criticism from the dissent.
[T]he Court understates, or ignores altogether, the gravity of the state systems’ failures in these two cases. 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. It is hard to imagine a more extreme malfunction than the prejudicial deprivation of a right [to effective assistance of counsel that constitutes the foundation for our adversary system].[30]
Shinn is remarkable for its utter indifference to injustice, the precise outcome Gideon was intended to prevent.[31] Instead, the court disregarded its own precedents and established a new precedent that will insulate many wrongful convictions and constitutionally tainted death sentences from federal review. This happens only because an indigent prisoner loses the lawyer lottery whenever the state court appoints an unqualified incompetent lawyer to represent the prisoner in their initial state post-conviction review proceedings. It is disheartening that the court seems oblivious to the consequence of its decision – human suffering, especially in capital cases, where the decision will streamline executions of prisoners for crimes they did not commit, or for punishment they did not deserve. It brings to mind the words of George Bernard Shaw: “The worst sin towards our fellow creatures is not to hate them but to be indifferent to them. That is the essence of inhumanity.”[32] And so it is.
We’d like to believe, as Dr. Martin Luther King Jr. said, that “the moral arc of the universe bends toward justice.” But in our own time, the court has ensured that for the far too many people who have been deprived of the right to a fair trial and who are being wrongfully incarcerated, justice is not inevitable. It is now up to the Congress to reverse this unconscionable decision. In the meantime, the fight for justice goes on.
[1] Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228 (2022).
[2] Statement of Justice Gorsuch during the January 18, 2022, oral argument in Shurtleff v. Boston, No. 20-1800.
[3] Carson as next friend of O. C. v. Makin, 142 S. Ct. 1987 (2022) (mandating public funding of religious education); Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407 (2022) (public schools must permit school officials to kneel and say prayers at the center of a school event).
[4] New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111 (2022).
[5] W. Virginia v. Env’t Prot. Agency, 142 S. Ct. 2587 (2022).
[6] Shinn v. Ramirez, 142 S. Ct. 1718 (2022).
[7] Gideon v. Wainwright, 372 U.S. 335–36 (1963).
[8] Id., at 372 U.S. at 342–43 (internal quotations omitted).
[9] Strickland v. Washington, 466 U.S. 668 (1984).
[10] Martinez v. Ryan, 566 U.S. 1 (2012).
[11] Id. at 17.
[12] Id. at 10.
[13] Shinn v. Ramirez, 142 S. Ct. 1718 (2022).
[14] Shinn, 142 S. Ct. at 1740, 1750 (Sotomayor, J., dissenting).
[15] Id., 142 S. Ct. at 1740.
[16] Id.
[17] Jones and Ramirez were joined in the Shinn case due to commonality of the legal question presented; otherwise, their cases have no relation.
[18] Shinn, 142 S. Ct. at 1741–43 (Sotomayor, J., dissenting).
[19] Shinn, 142 S. Ct. at 1740.
[20] Id. at 1737–38.
[21] Jones v. Shinn, 943 F.3d 1211, 1220–22 (9th Cir. 2019) (finding 28 U.S.C. § 2254(e)(2) does not prevent a district court from considering new evidence, developed to overcome a procedural default under Martinez v. Ryan, when adjudicating the underlying claim on de novo review), rev’d sub nom. Shinn v. Ramirez, 142 S. Ct. 1718 (2022); Sasser v. Hobbs, 735 F.3d 833, 853–54 (8th Cir. 2013) (same); White v. Warden, Ross Corr. Inst., 940 F.3d 270, 279 (6th Cir. 2019) (same); Stokes v. Stirling, 10 F.4th 236, 244–56 (4th Cir. 2021), cert. granted, judgment vacated in light of Shinn v. Ramirez, 142 S. Ct. 2751 (2022).
[22] Shinn, 142 S. Ct. at 1740 (Sotomayor, J., dissenting).
[23] Trevino v. Thaler, 569 U.S. 413 (2013).
[24] Id.
[25] Shinn v. Ramirez, 142 S. Ct. at 1739.
[26] Id.
[27] Shinn, 142 S. Ct. at 1748 (Sotomayor, J., dissenting).
[28] Shinn, 142 S. Ct. at 1741 (Sotomayor, J., dissenting).
[29] Id.InI
at 1742 (Sotomayor, J., dissenting).
[30] Shinn, 142 S. Ct. at 1749–50 (Sotomayor, J., dissenting) (internal quotations omitted).
[31] Gideon, 372 U.S. at 342–43.
[32] George Bernard Shaw, The Devil’s Disciple (1897).
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