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| Barry Jones |
The SCOTUS “ruling” that’s gotten all the press over the last few weeks isn’t really a ruling at all, at least yet. Lost in the controversy surrounding what appears to be the imminent reversal of Roe v. Wade is the case of Shinn v. Ramirez, which may have the most horrific consequences of any decision in recent history. We can disagree about RvW, but there are competing claims there, centered, as Curmie recently argued, on when in the progression from fertilized egg to childbirth a collection of cells becomes a human with rights equal to the mother’s. And whereas Curmie has argued for some significant limitations on the availability of semi-automatic weapons (for example), at least the Bill of Rights does guarantee the right to bear arms.
Curmie concentrates here on the case of Barry Jones (whose case was lumped in together with that of David Martinez Ramirez, accounting for the title of the case). It’s not news that the Supreme Court is more interested in legal niceties than in actual justice (see, for example, Curmie’s commentary on Walmart v. Dukes some eleven years ago). But usually this manifests in preventing a group of people from filing a class-action suit instead of individual suits, procedural stuff like that. But SCOTUS sees no legal impediment to allowing the state of Arizona to execute Mr. Jones despite the fact that he is almost certainly innocent. Yes, really.
The central issue here pertains to the 6th Amendment
guarantee of “the Assistance of Counsel,” a phrase that has always been
interpreted by the courts as effective counsel. It doesn’t count if your
weird Uncle Howard sits by your side and offers advice. It doesn’t even count if Curmie, who is
perhaps only marginally less weird, but a good deal better educated, than Uncle
Howard does so: Curmie’s knowledge of criminal law consists of a one-day stint
as a juror and considerable experience watching TV courtroom dramas (many of
which were set in England). No, you need
an actual lawyer who does his/her damned job.
Jones was convicted of the 1994 murder of his girlfriend’s 4-year-old daughter, Rachel Gray. As Justice Sotomayor argues in her dissent,
The State argued that Rachel died as a result of an injury she sustained while in Jones’ care. Jones’ trial counsel failed to undertake even a cursory investigation and, as a result, did not uncover readily available medical evidence that could have shown that Rachel sustained her injuries when she was not in Jones’ care. Having heard none of this evidence, the jury convicted Jones and the trial judge sentenced him to death.
Jones’s appeal was similarly mishandled, so he was again denied
his 6th Amendment right to effective legal counsel. Indeed, quoting Sotomayor again, “Arizona state
law sets minimum qualifications that attorneys must meet to be appointed in
capital cases like Jones’, but the Arizona Supreme Court waived those
requirements in Jones’ case, and the state court appointed postconviction counsel
who lacked those qualifications.” Holy Star Chamber, Batman!
Some would argue, as Ian Millhiser does on Vox, that SCOTUS is ignoring its own precedents. Still, it may be true that in purely legal terms the SCOTUS ruling in Shinn v. Ramirez not to allow a federal lower court to initiate an evidentiary hearing is the correct one. Nevertheless, such a decision cannot be abided in terms of justice. There is no judicial equivalent to the Hippocratic oath’s admonition to “first, do no harm.” Were such a stricture in place, we wouldn’t have the usual suspects on the Supreme Court of the United States calmly wiping away any impediments to the execution of Barry Jones.
When the stakes are this high—not merely for Mr. Jones and
his friends and family, but for the very significant collateral damage to the citizenry’s
perception of justice in this country—the Supreme Court needs to exercise leadership,
to pay heed to Ben Franklin’s famous line (possibly riffing off Voltaire and/or
Sir William Blackstone) “That it is better 100 guilty Persons should escape
than that one innocent Person should suffer, is a Maxim that has been long and
generally approved.”
This notion, which dates back centuries, has long been
touted as one of the bedrock principles of American jurisprudence—Curmie remembers
hearing about it in elementary school in the 1960s, and has taken it as an article of faith ever since. Those who disagree with this idea tend to be
authoritarian rulers like Otto von Bismarck or revolutionaries like Che Guevara—neither
of them heroes to the average American.
That said, one of the more chilling aspects of Curmie found
while doing a little research for this essay was a poll conducted by the Cato Institute in 2016, which shows that only 60% of Americans think it’s worse to punish the
innocent than to let the guilty go free… not in the 100:1 ratio invoked by
Franklin, but in even numbers. Yes, 40%
of Americans, and an even more terrifying 52% of Donald Trump’s “early core
supporters” responded to the question of which is worse, “having 20,000 people
in prison who are actually innocent; or, having 20,000 people not in prison who
are actually guilty” by selecting the latter.
Whereas Democrats were slightly more likely than Republicans to protect
the innocent rather than punish the guilty, the real difference is between the
authoritarian and the libertarian.
Still, only 75% even of Bernie Sanders’s supporters chose to keep the
innocent out of prison even at the expense of failing to incarcerate the
guilty.
So Curmie’s initial response that the American people would
be outraged at the callousness of the SCOTUS ruling seems to have been
misplaced. This observation would seem
to support the commentary of H.L. Mencken about nobody going broke underestimating
the intelligence of the “great masses of the plain people.”
But the phrase that haunts Curmie the most is the smug assertion by the insufferable Justice Antonin Scalia, surely the most over-rated jurist
in a very long time indeed, that “actual innocence” (his quotation marks) is
not grounds for even re-opening a case. Curmie remembers writing somewhere
(perhaps on the Facebook page?) that Dickens’s Mr. Bumble may or may not be
correct that “the law is an ass,” but that Antonin Scalia certainly is.
Scalia’s infamous line appears in his dissent in the case of
Troy Davis. SCOTUS ordered a federal
court Georgia to consider whether new evidence would clear Davis of a murder
charge. For good or ill, the original
verdict was upheld. Curmie wrote about that case on the eve of Davis’s execution.
What’s different here, however, is that whereas Davis was
quite likely innocent, Jones certainly was innocent: the fatal
injuries inflicted on Rachel Gray could not, according to three independent
experts, have occurred when Jones was even in proximity to the girl. It’s reasonable that the burden of proof shifts
after a verdict: a defendant is not guilty until proven otherwise beyond the
proverbial “reasonable doubt.” Once
convicted, however, that person now must prove innocence: not merely that it
can’t be proved he did it, but that he can prove he didn’t. But to shut down the possibility of appeal
when there’s evidence not of “probable innocence,” but of “actual innocence,”
corrupts the system beyond recognition.
There’s one more thing. Curmie suspects that he has certain advantages
over Barry Jones: he’s almost certainly better educated, very likely more intelligent,
and probably in a better financial situation.
Yet Curmie has hired two lawyers ever: one didn’t do something he should
have been certain to do, and the other committed an act of colossal stupidity. With luck, these errors, one of omission and
one of commission, will cost Curmie only a few dollars. At worst, it could be more than a few dollars,
but they certainly won’t cost his life.
But if Curmie can hire not one but two lawyers who didn’t get the job
done, he finds it difficult to blame Barry Jones for doing the same.
Of course, however much we might like to blame SCOTUS for the brouhaha, there’s at least an argument that they’re just enforcing pre-existing rules. (We’ll casually avoid mentioning that decisions like Plessy v. Ferguson were once considered inviolable.) The real blame here falls directly on the Arizona authorities who, presented with real, documentable evidence of both Jones’s “actual innocence” and the incompetence of his defense team, doubled down on their own laziness, corruption, and dereliction of responsibility.
Curmie was just hoping, rather forlornly,
that SCOTUS would protect the innocent instead of the obviously guilty. No, huh?
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