by Douglas Ankney

The current justices on the Supreme Court of the United States (“SCOTUS”) apparently prioritize ideology over guilt or innocence. Almost 40 years ago, SCOTUS held that the U.S. Constitution’s Sixth Amendment guarantee of a right to counsel meant that criminal defendants have a right to the “effective assistance of counsel.” Strickland v. Washington, 466 U.S. 668 (1984). However, this right to the effective assistance of counsel exists only where the right to counsel itself exists. Davila v. Davis, 137 S. Ct. 2058 (2017).

But in the majority of the states’ judicial systems, claims of ineffective assistance of counsel (“IAC”) cannot be raised on direct review but must be alleged collaterally in state postconviction proceedings. Martinez v. Ryan, 566 U.S. 1 (2012). These IAC claims must be “exhausted in the state court” (i.e., presented to the highest court in a state) before the claims may be presented to the appropriate federal district court. O’Sullivan v. Boerckel, 526 U.S. 838 (1999). Otherwise, the IAC claims will be “procedurally defaulted,” meaning the federal court cannot address the merits of the IAC claim. Davila. Furthermore, the federal court may review exhausted IAC claims based solely on the record that was presented to the state court. Cullen v. Pinholster, 563 U.S. 170 (2011).

Ironically, in these postconviction proceedings there is no Sixth Amendment right to counsel. Davila. Consequently, if the attorney presenting the claim of IAC in the postconviction proceeding was himself ineffective and caused the claim to be procedurally defaulted, the defendant suffers the consequences. Coleman v. Thompson, 501 U.S. 722 (1991).

However, in Martinez, SCOTUS created a narrow exception for IAC claims that were procedurally defaulted. If the IAC claim was procedurally defaulted due to counsel’s errors in the postconviction proceedings, the postconviction counsel’s errors could be “cause” to “excuse” the procedural default, allowing the federal court to address the merits of the underlying IAC claim. Martinez. Defendants David Ramirez and Barry Lee Jones were sentenced to death in separate trials on unrelated felonies by different juries in Arizona. Both defendants ultimately filed habeas petitions in federal district court under 28 U.S.C. § 2254 with claims of IAC that had been procedurally defaulted.

The district court concluded Ramirez’s postconviction counsel was at fault for the default and excused the default for cause under Martinez. However, the district court denied the IAC claim on the merits. The U.S. Court of Appeals for the Ninth Circuit reversed and remanded for an evidentiary hearing to permit Ramirez to present additional evidence to develop his IAC claim. Ramirez v. Ryan, 937 F.3d 1230 (9th Cir. 2019).

In Jones, the district court excused the default based on postconviction counsel’s deficiencies and, after conducting an extensive evidentiary hearing, found that Jones’ trial counsel was ineffective. The district court ordered Jones be released unless Arizona re-tried him with competent counsel within 45 days. The Ninth Circuit affirmed. Jones v. Shinn, 943 F.3d 1211 (9th Cir. 2019). The State of Arizona sought certiorari in both cases, and SCOTUS consolidated the cases for review. Shinn v. Ramirez, 142 S. Ct. 1718 (2022).

Relying on the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) and precedent, SCOTUS held that 28 U.S.C. § 2254(e)(2) prohibits defendants (subject to two narrow exceptions not applicable to the cases sub judice) from introducing new evidence in the federal courts in support of procedurally defaulted claims and prohibits federal courts from holding evidentiary hearings on those claims. SCOTUS concluded that the Ninth Circuit had improperly extended Martinez’s “narrow holding” into this area of “well-settled” law and reversed both Ramirez and Jones.

According to SCOTUS, principles of comity (that is, the Federal Judiciary respecting the decisions in the State Judiciaries), concerns for the finality of judgments (so that victims can get on with their lives), the costs incurred in federal evidentiary hearings and retrials of defendants, and the federal interference with the states’ ability to enforce societal norms via criminal prosecutions were the decisive factors. In other words, these “costs to society” are valued more highly than defendants’ right to effective assistance of counsel, and presumably, those costs to society concerned SCOTUS more than whether or not Jones and Ramirez are actually guilty and “deserving” of a death sentence.

It was not until the 20th century that SCOTUS finally held that criminal defendants facing capital punishment had a right to effective assistance of counsel. In 1931, Ozzie Powell and eight other poor, Black kids were accused of raping two white women in rural Alabama. Powell’s sham trial began and ended the same day (within 12 days of the alleged offenses), and he, along with seven codefendants, was sentenced to the electric chair. (One defendant was only 12 years old and spared electrocution.) The court had appointed two attorneys to represent all nine defendants: one attorney who had long been out of practice and another who was an alcoholic from out of state and not familiar with Alabama law.

SCOTUS reversed their convictions, holding capital defendants had a right to counsel and explaining that one of the evils the Court was seeking to prevent was the conviction of the innocent. Eventually, one of the alleged rape victims admitted that they had made up the entire crime, and no one had even touched the girls. All defendants were later pardoned. Powell v. Alabama, 287 U.S. 45 (1932).

Then 31 years later, in 1963, SCOTUS extended the right to counsel to all criminal defendants facing felonies. Clarence Earl Gideon fit the profile as one the State of Florida could easily convict—poor, uneducated, and unable to defend himself. Sentenced to prison upon conviction of breaking and entering a pool room, Gideon hand wrote on lined paper a petition to SCOTUS arguing that he should have had counsel appointed to represent him. SCOTUS agreed. Justice Hugo Black—a former senator from Alabama during the Powell saga—wrote for the majority: “The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours.” At retrial with future SCOTUS Justice Abe Fortas as appointed counsel, Gideon was acquitted. Gideon v. Wainwright, 372 U.S. 335 (1963).

The Bill of Rights in the U.S. Constitution “sought to implement and expand the twin Enlightenment goals of fairness and truth-seeking by ensuring that those accused of crimes were actually given trials where adversaries battled over whether the evidence prosecutors presented was strong enough to prove guilt,” wrote Nathan Goetting in “Innocence Is Not Enough Without Good Counsel.” As Powell and Gideon illustrate, competent counsel and fair trials are essential in preventing conviction of the innocent. But today, those rights “enshrined in the Constitution” are America’s show pony. A criminal trial is almost as rare as the dodo bird. While not quite extinct, criminal trials resolve only about 3% of all federal and state criminal cases. Plea bargains and guilty pleas are the American legal system’s “justice processors.” The right to counsel has become a right to an overworked and underpaid plea negotiator, with the prosecutor holding all of the cards in a deck stacked with unlimited discretion to charge multiple offenses carrying enough potential time in prison to scare even Jack-the-Ripper into pleading guilty.

But perhaps even more disturbingly, in Garza v. Idaho, 139 S. Ct. 738 (2019), Justices Clarence Thomas and Neil Gorsuch “announced that Gideon hadn’t been decided using the method of constitutional interpretation they preferred and signaled they might be willing to overturn the 60-year precedent.”   

Source: discoursemagazine.com

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