On May 23, the Supreme Court rendered a 6-3 decision in Shinn vs. Ramirez this will significantly restrict federal review of unconstitutional convictions and death sentences handed down by state courts. As Judge Sonia Sotomayor acknowledged in her dissent, the decision is both “perverse” and “illogical”.
The Supreme Court has repeatedly recognized that fair trials require competent counsel. When the defense attorney does not act competently, a jury may convict someone of a serious crime because the defense attorney has not done basic research that would show that the prosecution’s theory on the case was based on shoddy science.
Or, a jury may sentence someone to death because the defense attorney never investigated the evidence that the person had a horrible life history or suffered from a serious mental illness, which would affect the jury’s assessment of his moral culpability.
In these and countless other examples, the trial is fundamentally unfair and a defendant has been denied his Sixth Amendment right to effective counsel. And because many states severely underfund defense attorneys, such Sixth Amendment violations are common.
But to prove a violation of the right to counsel, an incarcerated person must present evidence of how the lawyer’s performance was inadequate and what would have happened if the lawyer had acted with skill. And while each state has a forum to do so — called a state post-conviction proceeding — most incarcerated people don’t have the right to an attorney in those proceedings.
Even in capital cases, although most defendants have some access to counsel in state post-conviction proceedings, the same problem of underfunding means that attorneys often have minimal resources to investigate and present evidence about trial lawyers’ failures.
As a result, the evidence necessary to develop ineffective requests for assistance is often not developed in state court. It is only when an incarcerated person reaches federal court, where attorneys have far more resources (especially in capital cases), that these claims can be investigated and tried. fair.
Ultimately, many states have created a system in which indigent people are first denied their right to a fundamentally fair trial and then denied a fair opportunity to prove that their trial was unfair.
Martinez and Trevin Case
Ten years ago, the Supreme Court decided two cases to address this issue. In Martinez against Ryan and Trevino vs. Thalerthe court held that, at least in most states, a federal habeas court could consider a request for ineffective assistance from trial counsel even if the request had not been fully presented to the state courts – as long as this lack of presentation was the fault of the state’s attorney after the conviction.
Whereas Martinez and Trevin by no means led to a series of successful federal habeas petitions, they created a critical avenue for asserting basic rights.
Today, a new Supreme Court, including the dissidents of Martinez and Trevin—basically said, “not so fast.” Interpreting the Anti-Terrorism and Effective Death Penalty Act (AEDPA) of 1996, the court held that a federal habeas court generally cannot consider the new evidence needed to demonstrate the ineffectiveness of post-conviction attorneys and the trial under Martinez and Trevin.
To present such evidence, the applicant will have to demonstrate, among other things, that he is innocent according to a standard of “clear and convincing evidence”. Under this heightened standard, even evidence that seriously compromises the integrity of the prosecution case and shows that the trial was unconstitutional and fundamentally unfair will not suffice.
And the standard will never be met based on serious constitutional errors in momentous cases that show a jury would not have sentenced the defendant to death, but do not imply innocence.
A Kafkaesque decision
As Sotomayor explained in the dissent, the AEDPA provision relied on by the majority should never have applied here, as it is only triggered if a petitioner “failed to develop” the evidence before a state court. The Supreme Court has already ruled that this language means that the petitioner must have been “at fault” in order for the evidence not to be presented.
The majority, speaking through Justice Clarence Thomas, dismissed this point. In his view, the conduct of the state’s attorney post-conviction is attributable to the petitioner, so if the state’s attorney post-conviction failed to develop key evidence, that means the petitioner is “at fault”.
In other words, the majority said that an applicant is responsible for the conduct of his lawyer after his conviction, even if the whole interest of a Martinez allegation is that the post-conviction state attorney was incompetent to represent the petitioner’s interests.
It sounds more like a Franz Kafka novel than what we should all expect from our highest court. The court’s decision will mean that people whose trials have been fundamentally unfair, including people who are likely to be innocent, will languish in jail and even be executed.
This article does not necessarily reflect the views of the Bureau of National Affairs, Inc., publisher of Bloomberg Law and Bloomberg Tax, or its owners.
Samuel Spital is Director of Litigation at the NAACP Legal Defense & Educational Fund Inc. Prior to joining LDF, he practiced for more than a decade at two national law firms, where he worked with LDF as co-counsel on numerous cases involving capital punishment, including the 2017 Supreme Court case Buck vs Davis.