Christina Swarns

The U.S. Supreme Court's May 23 decision in Shinn v. Ramirez and Jones closed the federal courthouse doors to evidence of ineffective assistance of counsel that was not first presented to the state courts. This devastating decision will leave countless people in the nightmarish position of having no court to hear their very real claims of innocence.

One such individual is Barry Jones. In 1995, Jones was charged with murdering the 4-year-old daughter of his then girlfriend. At trial, he was represented by lawyers who failed to properly investigate the medical evidence that served as the foundation of the case against him. As a result, the jury never heard the medical, forensic and witness testimony that would have undermined the prosecution's evidence. The jury convicted Jones of murder, and he was sentenced to death.

Jones received appointed counsel for post-conviction review. This was critical because, under Arizona law, the post-conviction review proceeding offers the one and only state court opportunity to prove wrongful conviction based on incompetent trial representation.

But Arizona's appointed counsel system is notoriously poor — the state does not guarantee the payment of reasonable litigation expenses in capital post-conviction proceedings; Arizona's compensation rate for appointed counsel is inadequate and has not changed in 20 years; and in Arizona, lawyers who were suspended or put on probation by the state bar for unethical and unprofessional conduct have been deemed qualified for appointment.

Unfortunately, Jones' post-conviction counsel was also ineffective and therefore never challenged the adequacy of Jones' trial representation. Thus, when the post-conviction petitions were denied, Jones lost his only chance to prove to the state courts that he was wrongfully convicted and entitled to a new trial.

Years after Jones' state post-conviction proceedings, four bipartisan federal judges reviewed his conviction and concluded that a minimally competent defense investigation would have uncovered extensive forensic evidence demonstrating that the victim's fatal injury could not have been inflicted when she was in Jones' care; that the state had relied on a scientifically unreliable method to date the victim's injuries; and that the state's investigation had failed to follow basic standards to preserve potentially exonerating evidence or investigate other suspects.

Indeed, U.S. District Judge Timothy Burgess of the U.S. District Court for the District of Alaska in a 2018 decision criticized law enforcement's "rush to judgment" and observed that if Jones' trial lawyers had done their job, "there is a reasonable probability that his jury would not have convicted him of any of the crimes."

But the U.S. Supreme Court reversed that decision. Without disputing the validity of the lower courts' analysis, the court declared that the federal courts were required to turn a blind eye to the evidence showing that Jones was wrongfully convicted due to the ineffectiveness of his trial counsel.

In a 6-3 decision that analyzed the Supreme Court's 2012 decision in Martinez v. Ryan and provisions of the Anti-Terrorism and Effective Death Penalty Act, or AEDPA, the court exalted the finality of a state court conviction over the accuracy and integrity of the process that produced it. As a result, Jones, despite strong evidence he is innocent, now faces execution in Arizona.

So, how did the court reach this conclusion?

AEDPA was passed in 1996 to promote finality of convictions and to discourage frivolous federal litigation. The statute not only gives state courts primary responsibility for reviewing state court convictions, it also precludes federal review of many claims of error that are not first presented to the state courts.

But the great majority of people charged with and convicted of crimes rely on public defenders whose offices are all too often chronically underfunded, overburdened and backlogged. That means strong claims of innocence can and do go uninvestigated and unpresented.

Thus, it wasn't a given that Jones' case claims would be heard by a federal court. To the contrary, the combination of failures by trial and post-conviction counsel represents the end of the road for many people, including those who are innocent and wrongfully convicted.

According to the National Registry of Exonerations, in the years between 1989 and 2012, more than 1,500 people[1] were found to have been wrongfully convicted of crimes in the United States, with 109 exonerated[2] after being condemned to death.

Inadequate lawyering, like that involved in Jones' case, is a leading cause of these wrongful convictions.

Sixteen years after AEDPA was enacted, the Supreme Court announced its decision in Martinez. There, the Supreme Court reiterated the fact that


It therefore concluded that substantial claims of trial counsel ineffectiveness should not go without appellate review and the federal courts can adjudicate substantial Sixth Amendment challenges even if they were not first properly developed in the state courts.

The Martinez decision offered a literal lifeline to the innocent. Indeed, it is because of Martinez that Jones was able to demonstrate that his trial counsel's failure to investigate and challenge the prosecution's timeline caused him to be wrongfully convicted.

But in Shinn, the Supreme Court did an abrupt about-face. In a majority opinion authored by Justice Clarence Thomas, the court declared that while Martinez permits federal courts to review a claim of ineffective assistance of counsel that was not first presented to the state courts, AEDPA prevents the federal court from evaluating evidence supporting such a claim unless that evidence was first presented to the state courts.

With this interpretation, the Supreme Court blinks reality and transforms the Martinez lifeboat into a dangerously sinking ship: If state post-conviction counsel does not assert trial counsel's ineffectiveness, that counsel has no reason to investigate, develop and present the evidence necessary to support such a claim to the state courts. And without such evidence, it will be all-but-impossible to prove ineffective assistance of counsel in federal court.

Thus, Shinn leaves those who receive ineffective trial and state post-conviction counsel without a meaningful opportunity to prove their wrongful conviction.

Since 1989, more than 3,000 people have been wrongfully convicted in the United States. Bad lawyering is an all too common cause of this growing problem.

Although the Shinn court emphasized the importance of finality for state criminal court judgments, finality is meaningless without integrity. If the Supreme Court is truly closing the federal courthouse doors to innocent people, like Jones, who received poor representation twice, the burden must shift to the state courts to ensure that people charged with crimes receive well-qualified and appropriately resourced attorneys and a meaningful opportunity to litigate claims of ineffective assistance of counsel in the first place.

---

Christina Swarns is the executive director of the Innocence Project.

Photo of Christina Swarns by Jamie Meier.

"Perspectives" is a regular feature written by guest authors on access to justice issues. To pitch article ideas, email expertanalysis@law360.com.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] https://www.law.umich.edu/special/exoneration/Pages/Exonerations-in-the-United-States-Map.aspx.

[2] https://deathpenaltyinfo.org/policy-issues/innocence-database?year=1989&year=1990&year=1991&year=1992&year=1993&year=1994&year=1995&year=1996&year=1997&year=1998&year=1999&year=2000&year=2001&year=2002&year=2003&year=2004&year=2005&year=2006&year=2007&year=2008&year=2009&year=2010&year=2011&year=2012&page=3.