Last December, the Supreme Court gathered to hear oral arguments in Shinn v. Ramirez, a case that could mean life or death for Barry Jones, who sits on death row in Arizona for the rape and murder of his girlfriend’s 4-year-old daughter, Rachel.
In 2018, a federal court overturned Jones’ conviction, concluding that he had failed to receive effective counsel, a violation of his Sixth Amendment rights. Had that happened, a federal judge ruled, “there is a reasonable probability that his jury would not have convicted him of any of the crimes with which he was charged and previously convicted.”
After losing in the 9th U.S. Circuit Court of Appeals, Arizona’s attorney general appealed the decision to the Supreme Court. During those oral arguments, state prosecutors repeatedly argued that “innocence isn’t enough” of a reason to throw out Jones’ conviction.
On Monday morning, by a 6-3 vote, the Supreme Court concurred: Barry Jones’ innocence is not enough to keep him off of death row. The state of Arizona can still kill Jones, even if there exists a preponderance of evidence that he committed no crime.
The crime for which Jones was convicted is horrific. The little girl, Rachel, died from peritonitis, the result of a rupture in her small intestine that the state of Arizona claimed came from repeated physical and sexual abuse.
But Jones’s lawyers never questioned the physical evidence that led to his conviction. As Liliana Segura, an investigative reporter for The Intercept, pointed out in an exhaustive piece last year:
“Had Jones’s lawyers been up to the task, there was plenty they could have done to defend their client. They could have pointed out that the lead detective, who examined Rachel at the hospital, didn’t bother to investigate how or when the child sustained her fatal injury — or consider a single other suspect aside from Jones. They could have called a medical expert to show that there was no real evidence that the child had been raped. Most crucially, Jones’s lawyers could have called a pathologist to challenge the state’s theory of the crime, which rested on a narrow timeframe during which Jones had supposedly assaulted Rachel the day before her death. Medical experts now say that Rachel’s abdominal injury could not have become fatal so quickly.”
At the time of his trial, Jones was appointed a lawyer by the state—a fundamental constitutional right guaranteed to all criminal defendants under the Sixth Amendment. If a defendant argues, after conviction, that they failed to receive adequate counsel they are appointed new legal representation. If the new lawyer also provides ineffective counsel, a federal habeas appeal allows them to argue that their post-conviction lawyer was ineffective.
In effect, Jones argued that he received ineffective counsel not once—but twice. And the fault lies not with him, but rather with his lawyers who were appointed by the state of Arizona. By allowing him to introduce evidence of his innocence, a federal court would be, in effect, rectifying the mistakes made not just by his lawyers, but by the state responsible for appointing them.
In a 2012 case, Martinez v. Ryan, the Supreme Court ruled that a convicted defendant “is not at fault for any failure to bring a trial-ineffectiveness claim in state court”—and thus opened the door to appeals like the one brought by Jones.
On Monday the court gutted the precedent established by Martinez.
In its decision, written by Justice Clarence Thomas, the court ruled that a federal court, “may not conduct an evidentiary hearing or otherwise consider evidence beyond the state-court record based on the ineffective assistance of state postconviction counsel.” In short, a convicted defendant, like Jones, can be held responsible and kept in prison if his state-appointed lawyer provided ineffective counsel for his appeal.
It creates a truly bizarre, even Orwellian situation.
How can a defendant argue ineffective counsel if they can’t point to specific examples of that ineffective counsel? And how else can they do that other than by introducing new evidence not presented at trial, which would have likely acquitted them? Thomas is saying, in effect, that a petitioner has to rely on the record of a trial in which they were ineffectively defended—and their actual innocence is of secondary importance.
Thomas justifies the court’s decision by arguing that a federal review imposes “significant costs” on state criminal justice systems that includes potentially overriding “the State’s sovereign power to enforce ‘societal norms through criminal law.’”
One might argue that housing a man who committed no actual crime on Arizona’s death row “imposes significant costs.” One might even further argue that executing an innocent man imposes far greater societal costs—not just to the legitimacy of the criminal justice system, but more acutely to the man whose life the state ended.
As Justice Sonia Sotomayor noted in her dissent, “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.” She called the ruling “perverse” and “illogical,” which doesn’t really do justice to its utter obscenity..
SCOTUS’ decision will allow for an innocent man to, potentially, be killed by the state for largely procedural reasons. That Arizona even appealed the federal court’s decision in this case is truly depraved. The state could have sought a new trial or released Jones. Instead, state prosecutors took their appeal to the Supreme Court where, if they won, it risked putting a man to death when substantial doubt exists about his guilt.
What societal objective is furthered by such an outcome? Why would any prosecutor risk killing an innocent man? How does that benefit the cause of justice?
But far worse is that the Supreme Court is willing to ratify Arizona’s impaired judgment.
As Jonathan Zasloff, a law professor at UCLA, said to me, part of the problem is that “the court’s conservative majority does not fully accept the idea that there is a right to effective assistance of counsel.”
“One could argue that there is a cost for the lack of finality from new claims brought up on habeas. Every prisoner can just file a new motion to say ‘I was denied effective assistance.’” said Zasloff. “So do we as a society want to pay that price to make sure innocent people don’t get killed? Not for these guys. So much for the right to life.”
The same court that appears poised to overturn Roe v. Wade in order to protect innocents before they are born seems to lose interest when it comes to innocents later in life.
Yet, for close Supreme Court-watchers, the decision is hardly surprising. Thirty years ago, the court issued a ruling that a death row inmate presenting belated evidence of innocence is not necessarily entitled to have a federal court hear their claims. Justice Antonin Scalia went even further, noting “there is no basis, tradition, or even in contemporary practice for finding that in the Constitution the right to demand judicial consideration of newly discovered evidence of innocence brought forward after a conviction.” In an angry dissent, Judge Harry Blackmun described the majority’s reasoning as "perilously close to simple murder."
With their decision on Monday, the conservative members of the court have ratified Scalia’s depraved thinking. Simple logic would suggest that proving one’s innocence is enough to ensure that a wrongful conviction is overturned and an innocent man or woman is set free. Such moments are the emotional high points of countless Hollywood movies. It’s the way most Americans would like to imagine our justice system should work.
But with the current Supreme Court and its increasing refusal to abide by long-standing legal precedents, basic societal norms, and simple moral constructs, the reality is something else altogether. For the highest court in the land, the state of Arizona killing an innocent man is not a perversion of the criminal justice system, but rather emblematic of its smooth functioning.