By David M. Greenwald
Next week, the US Supreme Court has agreed to hear Arizona prosecutors’ challenges to federal appellate court rulings that allowed the consideration of evidence of ineffective assistance of counsel as the state seeks to overturn rulings in favor of Arizona death-row prisoners Barry Jones and David Ramirez.
According to a press briefing held on Thursday, in both men’s cases there was critical evidence not discovered and presented until the cases reached the federal court and then were provided with competent representation.
Jones was convicted and sentenced to death on charges that he sexually assaulted and physically abused a four-year-old girl, causing her death. While the prosecution had argued the death was caused by injuries inflicted during a period of time she had spent alone with Jones, Jones’ appellate attorneys have presented medical evidence that the girl sustained the injuries on a different day claimed by the prosecution, at a time when Jones could not have inflicted them.
This evidence could have been uncovered earlier if trial counsel or state post-conviction counsel had conducted an adequate investigation.
In Ramirez’s case, he was “represented at trial by a public defender who failed to investigate and present evidence of Ramirez’s intellectual disability and his history of being abused and neglected.”
His attorney, who had never tried or even observed a capital case, has admitted that she was “ill-prepared” to represent Ramirez.
She relied on a psychologist’s finding that Ramirez was “well within the average range of intelligence.” But that psychologist later said if Ramirez’s attorney had provided more complete records on Ramirez’s background, he would have conducted different testing that would have shown that Ramirez’s IQ is in the intellectually disabled range.
Christina Swarns from the Innocence Project noted the huge number of wrongful conviction cases in the US and argued, “These sobering numbers, which are to be clear an undercount compel, careful and thorough scrutiny of cases where counsel has failed, especially when there is substantial evidence of innocence involved.”
She argues, “Arizona takes the opposite position here, arguing that the federal courts should turn a blind eye to evidence of ineffective assistance of counsel that wasn’t first presented to the state courts. But if this Supreme court accepts Arizona’s argument untold thousands of wrongfully convicted innocent people will be left in the nightmarish position of having no court to whom they can turn for justice.”
One of the problems in Arizona is its post-conviction system faces serious shortcomings, and often appoints lawyers “who have no expertise and no experience in the law around ineffective assistance of counsel.”
The result, she said, is that the ABA Death Penalty Representation Project in 2017 observed that “as a result of the poor quality of post-conviction representation at the state level in Arizona, many potentially federal constitutional claims are not being raised and preserved in the state courts.”
Cary Sandman has represented Barry Jones in the federal public defender’s office since 2011. In 2017, a Federal District Court Judge, Anthony Burgess, concluded that Jones’ appointed Arizona trial counsel was so constitutionally ineffective that there “could be no confidence in the outcome of Jones, murder conviction, and resulting sentence of death.”
The state was ordered to release Jones or grant him a new trial, a ruling upheld by a conservative three-judge panel in the court of appeals.
It was 27 years ago Jones was convicted in a trial, Sandman said, quoting the judge saying “that was colored by a rush to judgment, a lack of due diligence and thorough investigation.”
He added, “As it is so often in the case of wrongful convictions, homicide detectives rush to judgment will veer toward a reliance on junk science.”
Sandman said “that is exactly what happened here at Jones’ 1995 trial, the prosecution presented unchallenged medical evidence from a pathologist at the office of the county medical examiner to prove all the victim’s injuries could be dated to the afternoon before her death.”
Paul Meyer, a Senior Associate with Orrick, Herrington and Sutcliffe represents Ramirez who he said, “His case presents the same core legal issues as that of Barry Jones, but in the context of ineffective counsel at sentencing.
“So whereas Mr. Jones’ trial and post-conviction attorneys failed to investigate the state’s evidence of guilt. Mr. Ramirez’s appointed attorney conducted almost no investigation of his client’s relevant personal background, which is one of the most basic duties of capital sentencing counsel.”
Meyer gave a few examples of Ramirez’s “severe history of neglect, abuse, and intellectual disability” and argued “absent that information, he was sentenced to death.”
Moreover, “Mr. Ramirez’s post-conviction counsel then fail to raise that claim that trial counsel was ineffective for failing to bring those issues to the court’s attention.”
One of the points raised is that Arizona has no requirement for the appointed attorney to have either capital or post-conviction experience.
Moreover, “Arizona’s compensation rate is a hundred dollars per hour.” He said they have done research with the Federal Public Defender’s office into Arizona’s system, the compensation rate was first established in 1998, and has not increased at all since then.
“Arizona simply has no statewide guarantee of funds for investigators and other reasonable litigation expenses that attorneys need to competently represent their clients,” he said.
As Leah Litman, an Assistant Professor at the University of Michigan School of Law said, she believes that the Shin v. Ramirez case “is a bellwether case for how extreme this court (the US Supreme Court) might prove to be” and questioned “whether the court will act like a court at all.”
She argued, “Arizona is urging the court to adopt the position that federal courts lack the power to stop states from executing people who are very likely innocent of the crime they are convicted of. And Arizona is asking the Supreme court to say, federal courts have no power to entertain meritorious constitutional claims that no court at any point has ever heard.
“Those are extreme positions,” she said. “Those are positions that are antithetical to the purpose and origins of the writ of habeas Corpus.”
If the court adopts Arizona’s position here, they would be gutting a previous precedent, Martinez v. Ryan, which was a 7-2 Supreme Court decision from just 2012 where both Chief Justice Roberts as well as Justice Alito were in the majority.
Martinez, Litman explained, “It held that litigants are not prohibited from raising a claim that their trial counsel was constitutionally ineffective in violation of the sixth amendment in federal habeas proceedings, when through no fault of their own, they failed to raise that claim at state post-conviction proceedings because the state had supplied them with ineffective counsel during their state post-conviction proceedings.”
Litman argued that Arizona’s position here is “so extreme and really is asking the court to step much further than it should” and the concern of course is that the court granted hearing on this case at all, rather than denying it.
There have been nine amicus briefs filed in this case in support of Jones and Ramirez with several arguing “because ineffective trial counsel claims almost always rely on new evidence, Arizona’s position will render the rights established in Martinez meaningless and almost always foreclose relief.”