24 May SCOTUS: Prisoners Are “At Fault” For The Failures of Their Lawyers
The Sixth Amendment is pretty darn clear when it comes to the constitutional right to a lawyer. “In all criminal prosecutions,” it states, “the accused shall enjoy the right … to have the Assistance of Counsel for his defence.” In a pretty well known case from the 1980s called Strickland v. Washington, the United States Supreme Court renewed its belief that the assistance of counsel, by itself, is nothing.
Instead, SCOTUS said, the Sixth Amendment requires the effective assistance of counsel: “‘the right to counsel is the right to the effective assistance of counsel.'” The easiest way for a defendant to be deprived of his right to the effective assistance of counsel? The Strickland Court put it like this: “simply by failing to render ‘adequate legal assistance[.'”
Since then, SCOTUS has called this unremarkable yet vitally important concept “a bedrock principle” that is at the very “foundation of our adversary system” of criminal justice in the United States. But, because of a decision issued by SCOTUS yesterday that you probably haven’t heard about in the news or on social media, it’s fair to say that bedrock is crumbling.
The Unremarkable Nature of Petitions for Writs of Habeas Corpus
Yesterday, SCOTUS issued a decision in a case called Shinn v. Ramirez, but the case itself involves two cases out of Arizona: Shinn v. Ramirez and Shinn v. Jones. In Ramirez, a jury convicted a man named David Ramirez of two counts of murder. Then a judge sentenced him to death. In Jones, a jury convicted a man named Barry Lee Jones of one count of murder and several other crimes. And, like Ramirez, a judge sentenced Jones to death.
Like countless other men and women on death row in the U.S., Ramirez and Jones pursued appellate relief. And, like countless others, an appellate court denied their appeals. So, Ramirez and Jones turned to federal court, filing petitions for writs of habeas corpus pursuant to 28 U.S.C. § 2254.
Despite the impression you might get from Justice Clarence Thomas’ majority opinion, the act of filing a petition for writ of habeas corpus, especially as a death-row prisoner, is as ordinary as a hot day in Death Valley. According to the Bureau of Justice Statistics, federal courts see around 10,000 habeas petitions every year. Yet those 10,000 petitions aren’t even five percent of a district court’s typical caseload. And courts only grant around three percent of those petitions.
But these statistics shouldn’t distract from the crucial role habeas petitions play in our criminal justice system. Using the Ninth Circuit as an example, you could literally make a 43-page list of cases in which constitutional violations would have never came to light but for habeas relief. (Lucky for you, Anthony Bernstein, an Assistant Federal Public Defender for the District of Oregon, already compiled that 43-page list, so you don’t have to.)
The Ineffective-Assistance Claims in Shinn v. Ramirez and Shinn v. Jones
Ramirez’s and Jones’ petitions for writs of habeas corpus both raised the same argument: ineffective assistance of counsel. Both defendants claimed that their trial attorneys (the attorneys who represented them at trial) failed to adequately investigate the allegations against them. Therefore, the two argued, their performance constituted ineffective assistance of counsel. And, as a result, they were deprived of their Sixth Amendment right to counsel.
You probably expect that both men appealed and that an appellate court decided whether their attorneys did a good enough job. That’s a pretty fair expectation. And it’s also sort of what happened. Both men appealed. But neither of their appellate lawyers raised an ineffective-assistance argument based on their lawyers’ alleged failure to investigate. (Jones’ lawyer raised another ineffective-assistance argument though — just not the “right” one.)
Why didn’t those appellate lawyers raise an ineffective-assistance argument based on the failure to investigate? Your guess is as good as mine. Maybe they thought the argument lacked merit. Perhaps they didn’t even think about it. Or they might have left it out as part of a strategy to focus on arguments they thought were better. Or they could have simply copied and pasted another brief but given up on its contents. Who knows?
Under yesterday’s SCOTUS decision, that’s it. That’s the end. The answer to that “Who knows?” question will remain a mystery. According to the Republican-appointed justices in the 6-3 majority, that’s where the federal courts have to leave the case. For a federal court to answer those questions, i.e., to determine whether these two defendants received effective assistance of counsel like the Constitution guarantees, the majority said, would be “an affront to the State and its citizens who returned a verdict of guilt….”
SCOTUS Says Two Prisoners Are “At Fault” For Mistakes By Their Lawyers
The Sixth Amendment promises us the right to counsel. And SCOTUS has unequivocally said the right to counsel is the right to the effective assistance of counsel. Two men on death row claim that they lost their right to the effective assistance of counsel. Yet no court will actually answer the question of whether they were, in fact, deprived of that right. (In fact, the only courts to come close to answering that question — a U.S. District Court and the U.S. Court of Appeals for the Ninth Circuit — both raised serious doubts as to whether the men received the effective assistance that the Constitution promises them.)
So, why can’t we get answers to these questions? SCOTUS has an answer to that at least: “a state prisoner is responsible for counsel’s negligent failure to develop the state postconviction record.” Put more simply, SCOTUS ruled that prisoners are responsible for the mistakes their lawyers make. So, if your lawyer on appeal fails to make a really good argument that could clear your name, you “bear the risk” for that error, and there’s nothing a federal court can do to help.
It’s a cliché, but put yourself in Ramirez’s and Jones’ shoes. Would you know whether your appellate lawyer adequately developed the state postconviction record? Would you know what to do if the lawyer didn’t? And would you know how to do that even if it’s a lawyer you’ve never even met in person?
According to yesterday’s decision from SCOTUS, the answers to these questions are yes, yes and yes: death-row prisoners must make sure their lawyers do their jobs well. And, SCOTUS says, “a prisoner is ‘at fault’ even when [his or her appellate lawyer] is negligent.”
The Consequences of Shifting The Burden From Lawyers To Prisoners
The consequences of yesterday’s SCOTUS decision are clear, and the three dissenting justices recognized them: “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.”
In fact, for Ramirez and Jones, the outcome would have been the same had they had no Sixth Amendment right to counsel at all.
For Ramirez, his trial lawyer allegedly failed to present evidence regarding his intellectual disability because, according to the lawyer’s own admission, she was not “prepared to handle ‘the representation of someone as mentally disturbed as . . . Ramirez[.]” In fact, Ramirez’s trial lawyer admitted, had she known about this evidence, it “‘would have changed the way [she] handled both [Ramirez’s] guilt phase and his sentencing phase.'”
Considering the fact that Arizona law requires the jury to consider a “defendant’s capacity to appreciate the wrongfulness of his conduct,” evidence of Ramirez’s intellectual disability certainly would have been relevant. Yet neither Ramirez’s trial lawyer nor appellate lawyer ever contacted the witnesses or psychologists whom Ramirez identified to help demonstrate his intellectual disability. Among other things, this evidence documented Ramirez growing up in homes where he ate and slept on floors with animal feces.
Barry Lee Jones
For Jones, his trial lawyer allegedly failed to present evidence that a U.S. District Court said created a “reasonable probability that the jury would not have unanimously convicted [Jones] of any of the counts” if Jones’ trial counsel had “adequately investigated and presented medical and other expert testimony to rebut the State’s theory’ of Jones’ guilt.” This conclusion was premised on what the dissenting opinion calls “readily available medical evidence that could have shown that [the victim] sustained her injuries when she was not in Jones’ care.”
How could an appellate lawyer fail to raise such a glaring error like this on appeal? The dissent addresses that, too: “Arizona state law sets minimum qualifications that attorneys must meet to be appointed in capital cases like Jones’, but the Arizona Supreme Court waived those requirements in Jones’ case, and the state court appointed postconviction counsel who lacked those qualifications.” That appellate counsel “conducted almost no investigation outside of the evidence in the trial court,” and, for Jones, the rest is history.
The Sixth Amendment Right To Counsel We’re Left With
It’s easy to write the lives of David Ramirez and Barry Lee Jones off. Read the first few pages of Justice Thomas’ opinion, and you’ll probably want to. Justice Thomas describes the alleged conduct of both men as though it’s the start of a top-selling novel rather than a serious court document. He paints the picture of someone stabbing women and children in their necks with pairs of scissors and box cutters. He talks about raping children. And he even talks about rupturing body parts. (He doesn’t know, of course, if Ramirez or Jones actually did any of these horrific things.)
But none of this gruesome storytelling has any bearing on whether Ramirez and Jones actually received the effective assistance of counsel guaranteed by the Sixth Amendment. What does have a bearing on that issue is the conduct of Ramirez’s and Jones’ lawyers — conduct that Justice Thomas’ opinion devotes exactly zero time and consideration to.
You have the Sixth Amendment right to counsel. And the Supreme Court has held that the Sixth Amendment’s right to counsel means the effective assistance of counsel. But, in these cases, that Sixth Amendment right didn’t guarantee an attorney who would perform investigation into and potentially present evidence that one federal court said created a “reasonable probability that the jury would not have unanimously convicted [Jones] of any of the counts….” And it also didn’t guarantee an attorney who was “prepared to handle ‘the representation of someone as mentally disturbed as . . . Ramirez[.]” So, what did it actually guarantee?
You can read Justice Thomas’ majority opinion and Justice Sonya Sotomayor’s dissenting opinion by clicking here.