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Opinion

Guest opinion

Supreme Court ruling protects attorneys at expense of innocent defendants, jurors

At first glance, Justice Clarence Thomas’ opinion in Shinn v. Ramirez, issued last week, seems to constitute just another incremental step towards the right—one more  incident in the modern Supreme Court’s campaign to dismantle the Warren Court’s protections for criminal defendants.

The case has conservatives gloating and liberals complaining.  Justice Sonia Sotomayor, in dissent, condemns the holding as “perverse” and “illogical.”

It all sounds familiar.

But, in fact, the Shinn decision did more than provide another episode in the War on Crime.

Shinn announced a War on Innocence.

Shinn held that federal courts must not intervene to develop the factual record in two death penalty cases where the defendants’ incompetent trial counsel failed to present exculpatory or mitigating evidence to the jury, and where the defendants’ post-conviction counsel then neglected to present the trial lawyers’ failures to the state’s reviewing courts.

(Shinn decided two Arizona cases. In one case the missing evidence would have shown that the victim’s time of death excluded the defendant as the killer; in the other, that the defendant suffered from devastating mental incapacities.)

Justice Thomas wrote for the majority that any order by a federal court aimed at developing the facts violates the terms of  the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), and is “[A]n affront to the State and its citizens who returned a verdict of guilt after considering the evidence before them.”

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The evidence that was not presented for consideration to those citizen-jurors who returned the verdicts must be ignored by the federal courts.

Federal judges confronted with an innocent habeas corpus petitioner sentenced to death whose overwhelmed lawyer didn’t “make the record” in state court must imitate Pontius Pilate, wash their hands, let the execution go forward.

The pull of hubris

The conservative majority of the current Court shows every sign of thoroughly enjoying its new unconstrained power.  There is a certain swagger in Justice Thomas’s Shinn opinion, and it is replete with citations to long-ago dissenting opinions of Justice Scalia concerning AEDPA, parading them now as moral authority.

The Shinn opinion communicates a degree of hubris - of that overweening confidence which in classical tragedies tempts the protagonist into arrogant violations of the boundaries set by the gods or by human society.

Now, as in the Greek tragedies, Nemesis sets out to restore the balance.

In Shinn, Justice Thomas and his self-assured Court have crossed a line, and may have inadvertently laid the foundation for the replacement of AEDPA.

Even before Shinn, it was easier for a camel to pass through the eye of a needle than for an indigent defendant to find a way to federal relief.

There is already a wealth of commentary cataloguing the crippling effects of AEDPA on the writ of habeas corpus in the federal courts. Much of this  writing is vehement, but none of it is really overstated.  I won’t detail the arguments here.

Enacting AEDPA required the confluent efforts of two sociopathic political figures: Newt Gingrich, who was eager to exploit Richard Nixon’s successes with the racist equation of crime and race; and Bill Clinton, in his “Sister Souljah” mode, semaphoring tough-on-crime fervor.

In effect, AEDPA  represented a victory for the old Confederacy.  For the world’s Newt Gingrichs, the Thirteenth Amendment (outlawing slavery) was about an outmoded business model anyway.

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It was the rights protected by the Fourteenth Amendment, the criminal procedure rights to jury trial, to counsel, to silence, to due process, and exculpatory evidence, that impeded contemporary domination by race and class.

Once you get the federal courts out of the business of enforcing rights, mass incarceration can proceed, and then build its momentum.

You simply appoint underpaid, untrained, defense lawyers who are too overwhelmed by their caseloads to investigate cases or raise claims, and you’ve shut the federal courts out of the business of enforcing rights.

AEDPA operates through a bewildering thicket of arcane technical rules—issue bypass, time bars, waiver findings,  burdens of production and proof—no one of which, taken alone, seems that important.  AEDPA’s oppressive power, like the “wetness” that you can’t see in any individual molecule of H2O,  is emergent, really visible only when the AEDPA’s components are combined.

In isolation each provision makes a poor target for reform advocates. Attack one.  Then,  watch your audience’s eyes glaze over.

And, by an impressive act of political judo, AEDPA’s advocates were able to weaponize the AEDPA’s complexity by conjuring up the cartoonish figure of the guilty murderer gleefully spending years exploiting “technicalities” to avoid punishment.

The new lens

But Justice Thomas’s Shinn opinion dispels this fog.  Shinn is clear and simple.  It  protects state court judges from review of their errors. It protects prosecutors who win victories in mistaken cases. It protects federal judges from the need to decide about innocence.

But this is the most  important part.  It clearly protects these professionals not only at the expense of innocent defendants but at the expense of the jurors.

The State can take away the jurors’ tools, but leave the jurors responsible for a fatal outcome.

If an innocent man is executed—and there have been 187 innocent people who were sentenced to death exonerated since 1973—it is because the jurors voted that way.

Imagine yourself as a juror in one of the Arizona cases. You voted for death.  You read about the execution. Then you learn what you had never been told:  there was evidence that the victim’s time-of-death eliminated the man whose death you brought about as the killer.

You thought you were involved in a trial, but really you were enmeshed in a deadly game of Three-Card Monte. A man is dead, and (since verdicts must be unanimous) your vote was indispensable. You get to live with the trauma.

The first step in the campaign to replace AEDPA must be a conscientious survey of public opinion on the question of whether we need an act to protect Innocence.

The new frame for the debate provided by Justice Thomas’s declaration of war is the place to start.

The public and innocence

It is important to have a careful assessment of the public’s will regarding the importance of innocence right at the beginning. The moral arguments are, I think, irrefutable. (Prof.  Susan Bandes has eloquently marshalled them.)

The popular responses to the swelling tide of exoneration narratives in the media are consistent.  Gideon’s Trumpet and To Kill A Mockingbird  are hallowed texts in our civic religion.

But I have my own reasons for believing that the public cares about innocence - lessons that jurors have taught me, and to which Justice Thomas and his colleagues have no access.

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I have defended the accused in many murder trials.  The prosecution’s case is never implausible. (It wouldn’t get to trial if it were.) The facts are always horrifying.  Sometimes it is the loss of a particular victim that is heartbreaking; sometimes it is the brutality of the method of murder; sometimes it is the sheer stupid pointlessness of the killing.

In closing arguments to the jury I often quote a member of the Founding Generation that right wing judges claim to revere: John Adams, arguing to the jury in defense of the British officers on trial for the Boston Massacre:

We find, in the rules laid down by the greatest English Judges, who have been the brightest of mankind; We are to look upon it as more beneficial, that many guilty persons should escape unpunished, than one innocent person should suffer. The reason is, because it’s of more importance to community, that innocence should be protected, than it is that guilt should be punished; for guilt and crimes are so frequent in the world, that all of them cannot be punished; and many times they happen in such a manner, that it is not of much consequence to the public, whether they are punished or not.
But when innocence itself is brought to the bar and condemned, especially to die, the subject will exclaim, it is immaterial to me, whether I behave well or ill; for virtue itself, is no security. And if such a sentiment as this, should take place in the mind of the subject, there would be an end to all security whatsoever.

It is not that my jurors always–or even usually–acquit.

But they do nod.  They do straighten in their chairs.  They do visibly gather themselves to take on a duty that they see as sacred. All of them. Every time.

The protection of innocence that means nothing (or worse) to Justice Thomas means everything to ordinary Americans.

This is not a “culture war” issue that divides one American from another.

Manage the political process in a way that lets Americans be heard, and they will tell you that.

This report was first published by The Crime Report.


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Supreme Court building, Washington.