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Fair trial entanglement is last high court argument of 2021

With the death sentences of two men hanging in the balance, the Supreme Court focused on the window state prisoners have to bring claims for ineffective counsel.

WASHINGTON (CN) — Hearing their last argument of the year, the justices of the Supreme Court seemed hesitant Wednesday about the government’s bid to block two Arizona death row inmates from introducing new evidence in their cases.

Robert Loeb, an attorney who represents David Martinez Ramirez and Barry Lee Jones, explained Wednesday that both of his clients were appointed ineffective trial lawyers.

“In arguing the Mr. Jones and Mr. Ramirez should be held at fault here, the state relies on … the general rule that an attorney’s acts are generally to be attributable to a client. But this court has long recognized that the attribution rule is not categorical in nature. Indeed, the state agrees that the failures of counsel are not to be attributed to the applicant when the attorneys' effectiveness is at the Strickland level. And when it occurs, either at a criminal trial or on the direct criminal appeal,” Loeb said, referring to the 1986 case Strickland v. Washington, which held that a defendant’s right to counsel is violated when that counsel performs inadequately.

Jones was convicted and sentenced to death for sexually assaulting and physically abusing a 4-year-old girl, Rachel Gray. But while Arizona said the man had caused injuries that led to her death at the state level, Jones’ federal lawyers later presented medical evidence that the girl had been injured on a different day than the one the prosecution had originally presented, making it impossible for Jones to have inflicted them, as well as disproving some of the prosecutor’s forensic evidence. 

Ramirez, meanwhile, was found guilty of stabbing his girlfriend and her 15-year-old daughter to death. He said during a psychological exam before the hearing that he had had alcohol and cocaine on the night of the murders and admitted to having sex with the daughter that night as well as several others. He now says he was appointed a public defender who improperly presented that he was of average intelligence at trial, instead of intellectually disabled, and failed to bring up his childhood history of neglect and abuse.

According to their brief, while the federal court found that Jones’ trial counsel and his state post-conviction counsel were ineffective for not presenting evidence, a federal district court initially found that Ramirez couldn’t present a counsel-ineffectiveness claim.

Later, however, the Ninth Circuit ruled that both men could present ineffectiveness claims, affirming and reversing the federal court rulings, respectively, in alignment with Martinez v. Ryan, a 2012 Supreme Court decision that allows prisoners to use new evidence to support their ineffective counsel claims in federal court.

A lawyer from Arizona’s attorney general office asked the court to overturn the Ninth Circuit rulings Wednesday. 

“There's a faulty assumption that Martinez somehow guarantees the right to have the claim heard in federal habeas and district court. That's wrong even in a state where ineffective assistance of trial counsel is brought in direct appeal,” Brunn Roysden, representing the director of Arizona’s Department of Corrections, Rehabilitation and Reentry, said Wednesday. 

The Supreme Court moved in May 2021 to hear the Arizona prosecutors’ challenge to the Ninth Circuit’s ruling. While usually federal habeas corpus law says state prisoners must raise an issue in state court before they can review a claim in federal court, Martinez indicated that state prisoners could challenge the ineffectiveness of their trial counsel if they had been denied the opportunity to do so in state court due to the counsel.

Arizona said in its brief that the appellate court’s ruling can’t stand because because the high court's 2012 decision in Martinez v. Ryan bars the court from considering new evidence when deciding the merits of the ineffective-counsel claims.

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“These are important questions and are often going to require the development of evidence, but Congress has answered the question. And from Congress' point of view, even innocence is not enough,” Roysden said, referring to a statute of the 1996 Antiterrorism and Effective Death Penalty Act, which says state attorneys must raise a claim of ineffective representation during the state habeas proceedings.

According to the Grand Canyon State, allowing the defendants to explore these ineffective assistance claims opens “the proverbial litigation floodgates” in habeas cases.

“This shouldn't go down the path of having a Martinez hearing if there's not going to be state court evidence to establish the ultimate claim,” Roysden told Justice Clarence Thomas Wednesday, who had called Arizona’s argument of excusing the procedural default “pretty worthless.”

The chief justice, too, questioned the state’s argument.

“The idea is if you do get the right to raise the claim, for the first time, because your counsel was incompetent before — surely you have the right to get the evidence that's necessary to support your claim? I mean, the whole reason some states say you shouldn't raise your incompetence claim until after the direct proceedings is that it's much more efficient and natural to have an evidentiary hearing,” Chief Justice John Roberts said.

“I think it's it's incorrect to say that Martinez implicitly gave you [the defendants] the right to present evidence,” Roysden responded.

Loeb contradicted this.

He argued that the high court squarely addressed that open question just nine years ago, and this court examined the very same Arizona system at issue here.

“Martinez says the postconviction review provides, in many ways, the equivalent of a prisoner's direct appeal. And all agree that if these errors occurred in a state [other than Arizona] where you could raise posts, you could raise the ineffectiveness of trial counsel on appeal. Everyone agree you would not be attributing fault here to Mr. Jones and Mr. Ramirez,” he argued.

Justice Neil Gorsuch pointed out Wednesday that Martinez did contemplate that ineffective assistance of trial counsel — that claim and that claim alone — could be raised in federal habeas, even if otherwise defaulted, because it wouldn't be attributed to the client. 

“And then the question becomes, ‘Well, did they really contemplate that it could be raised but not actually pursued?’ Which seems like a very odd way to attribute what the court did in Martinez,” he said.

The justice followed up with a question for Arizona’s attorney.

“If you're not at fault for failing to raise a claim, how can you be at fault for failing to develop that claim?” Gorsuch asked.

“My answer is you are at fault. Martinez said you have cause to excuse it. … They need to go to state court,” Roysden said.

Justice Samuel Alito told Loeb directly he considers this “a tough case.” 

“I certainly understand why the courts of appeals have interpreted Martinez the way they did, but the fact remains that we have to follow the federal habeas statute — we have to follow unless it's unconstitutional,” Alito said, asking the lawyer to explain how Martinez could be interpreted to have changed what that statutory phrase created by Congress says.

“We're not arguing that Martinez changed the statutory phrase,” said Loeb, who is with the firm Orrick Herrington. “But it's always been understood. And there's no disagreement that in some limited instances, the attorneys’ failures are not attributed to the client. Everyone agrees that if they're the same errors that occurred in a state on a direct appeal situation that they will not be the same failures at district level would not be attributed to the client.”

Justice Sonia Sotomayor gave Loeb a chance to clarify how often this kind of thing happens. 

“This is a completely unusual situation as you pointed out. We're talking no court would have reviewed this evidence to see if someone was guilty as charged,” she posed. “Correct?”

Loeb replied: “There'll be no court which could meaningfully review the ineffective trial counsel claim here. …. The kind of evidence that was educed for Mr. Jones, showing that the murder charges against him were baseless, and the kind of evidence that was educed as to Mr. Ramirez, showing that there is substantial mitigation evidence that he should not be given the death penalty would have never seen the light of day but for the appointment of competent counsel who then were given a chance to develop the record, and to present that evidence to federal court.”

Roysden, however, contradicted this. 

“This is the classic death penalty claim that ‘I needed more mitigation than what I got’ — that's the run of the mill case,” Roysden said, asking the court to reverse the judgments of the Ninth Circuit.

The Supreme Court will resume session on Monday, January 10.

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