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SCOTUS Ruling Hurts Review of Illegal Convictions, Death Sentences

June 7, 2022, 8:00 AM

On May 23, the Supreme Court issued a 6-3 decision in Shinn v. Ramirez that will severely constrict federal review of unconstitutional convictions and death sentences imposed by state courts. As Justice Sonia Sotomayor recognized in her dissent, the decision is both “perverse” and “illogical.”

The Supreme Court has repeatedly recognized that fair trials require competent defense counsel. When defense counsel does not perform competently, a jury may convict someone of a serious crime because defense counsel didn’t do basic research that would show the prosecution’s theory of the case was based on junk science.

Or, a jury may sentence someone to death because defense counsel never investigated evidence that the person had a horrific life history, or suffered from serious mental illness, which would affect the jury’s assessment of their moral culpability.

In these and countless other examples, the trial is fundamentally unfair, and a defendant has been denied their Sixth Amendment right to the effective assistance of counsel. And because many states badly underfund defense counsel, such Sixth Amendment violations are common.

But to prove a violation of the right to counsel, an incarcerated person needs to present evidence of how counsel’s performance was inadequate and what would have happened had counsel performed competently. And while every state has a forum to do that—referred to as state post-conviction proceedings—most incarcerated persons have no right to counsel in those proceedings.

Even in capital cases, although most defendants have some access to counsel in state post-conviction proceedings, the same underfunding problem means that attorneys often have minimal resources to investigate and present evidence about trial counsel’s failures.

As a result, the evidence necessary to develop ineffective assistance claims often is not developed in state court. It is not until an incarcerated person reaches federal court, where counsel have far more resources (especially in capital cases) that these claims can be investigated and fairly litigated.

The bottom line is that many states have created a system in which indigent persons are first denied their right to a fundamentally fair trial, and then denied a fair opportunity to prove their trial was unfair.

Martinez and Trevino Cases

A decade ago, the Supreme Court decided two cases to address this problem. In Martinez v. Ryan and Trevino v. Thaler, the court held that, at least in most states, a federal habeas court could consider an ineffective assistance of trial counsel claim even if the claim hadn’t been fully presented to the state courts—so long as this lack of presentation was the fault of state post-conviction counsel.

While Martinez and Trevino by no means led to a rash of successful federal habeas petitions, they created a critical avenue to vindicate fundamental rights.

Today, a new Supreme Court—including the dissenters in Martinez and Trevino—essentially said, “not so fast.” Interpreting the 1996 Anti-Terrorism and Effective Death Penalty Act (AEDPA), the court held that a federal habeas court generally cannot consider the new evidence that is necessary to demonstrate the ineffectiveness of both post-conviction and trial counsel under Martinez and Trevino.

To present such evidence, the petitioner will need to show, among other things, that they are innocent under a “clear and convincing evidence” standard. Under that heightened standard, even evidence that seriously undermines the integrity of the prosecution’s case and shows that the trial was unconstitutional and fundamentally unfair will not be enough.

And the standard will never be satisfied based on serious constitutional errors in capital cases that show a jury would not have sentenced the defendant to death, but do not implicate innocence.

A Kafkaesque Decision

As Sotomayor explained in the dissent, the provision of AEDPA relied upon by the majority never should have applied here, because it is triggered only if a petitioner “failed to develop” the evidence in state court. The Supreme Court already held that this language means the petitioner must have been at “fault” for the evidence not being presented.

The majority, speaking through Justice Clarence Thomas, brushed this point aside. In its view, state post-conviction counsel’s conduct is attributable to the petitioner, so if state post-conviction counsel failed to develop key evidence, it means the petitioner is at “fault.”

In other words, the majority said a petitioner is responsible for the conduct of their post-conviction counsel, even though the whole point of a Martinez claim is that state post-conviction counsel was incompetent in representing the petitioner’s interests.

This is more like a Franz Kafka novel than what we should all expect from our highest court. The court’s decision will result in people whose trials were fundamentally unfair—including those who are likely innocent—languishing in prison and even being executed.

This article does not necessarily reflect the opinion of The Bureau of National Affairs, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

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Author Information

Samuel Spital is the director of litigation at the NAACP Legal Defense & Educational Fund Inc. Prior to joining LDF, he practiced for over 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 v. Davis.