SCOTUS Won't Protect the Innocent

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?

Troy Davis, Capital Punishment, and the Battle between Law and Justice

I am a long-standing and proud supporter of Amnesty International, but there’s one of that organization’s core tenets that I can’t completely support: their unequivocal opposition to the death penalty. Don’t get me wrong. Just because I live in Texas and my name is Rick doesn’t mean I break into a Pavlovian slobber at the thought of breaking out the electric chair. But there are those of our species whom, to be frank, we’d be better off without. To qualify for this dubious designation, however, one would have to meet two specific and independent criteria: the crime(s) one committed must have been so depraved and/or egregious as to transcend the merely felonious, and there must be absolutely no doubt about one’s guilt.

Troy Davis, whose execution by lethal injection by the state of Georgia is imminent and now probably inevitable, fails to qualify on either count. His conviction 20 years ago was for the 1989 killing of off-duty police officer Mark MacPhail by shooting him in the face in what has been described as a brawl in a Burger King parking lot. That’s certainly not something one brags about on a résumé, but it was a single event, the cop was off duty, there was no particular malice shown, and no suggestion of anything like torture.

More importantly, there’s a reasonable chance that Davis didn’t do it. There is no physical evidence, the gun has never been found, and seven of the nine non-police witnesses who testified against Davis have subsequently not merely recanted their testimony but alleged that they were coerced into perjurous statements by a police force more interested in solving a case than in whether it was solved correctly. Indeed, multiple sources now point the finger at another witness against Davis, Sylvester “Red” Coles.

Time for skepticism. If you, Gentle Reader, believe that Georgia cops wouldn’t go out of their way to convict and indeed execute a black man for being in the wrong place at the wrong time, you’re probably too gullible to be reading this blog. On the other hand, if you think that no guilty defendant has ever rallied cause-obsessed lefties to follow an utterly mendacious claim, you’re definitely too trusting. Ultimately, while I am sure the various powers that be think they’ve really proved Davis’s guilt, even in the light of post-trial revelations, I’m persuaded by the skepticism of the likes of William S. Sessions and Bob Barr, neither of them exactly bleeding hearted liberals.

I do not contend that Davis is necessarily innocent, or even that there’s enough evidence to overturn his conviction, but if we’re going to execute a man for a particular crime, it would be a really good idea if we were more than pretty sure he was guilty. Here’s Sessions, who sums up my argument rather well:

What the hearing demonstrated most conclusively was that the evidence in this case—consisting almost entirely of conflicting stories, testimonies and statements—is inadequate to the task of convincingly establishing either Davis’ guilt or his innocence. Without DNA or other forms of physical or scientific evidence that can be objectively measured and tested, it is possible that doubts about guilt in this case will never be resolved.

However, when it comes to the sentence of death, there should be no room for doubt. I believe there is no more serious crime than the murder of a law enforcement officer who was putting his or her life on the line to protect innocent bystanders. However, justice is not done for Officer Mark Allen MacPhail Sr. if the wrong man is punished.

The case is particularly noteworthy not merely for itself, however. First, there are the comments at the recent Republican debate by Governor Rick Perry, the current front-runner for the GOP nomination. Responding to a question by Brian Williams about whether he ever worried about killing an innocent man among the 234 executions he authorized, Perry crowed, “I’ve never struggled with that at all.” Ultimately, that tells us all we need to know, especially since there have been a couple very controversial cases, e.g., Cameron Todd Willingham, convicted and sentenced to death for murdering his three daughters, although a). he quite possibly didn’t do it, at least in the way alleged by prosecutors and b). Perry shut down an investigation that might well have proved that, prior to Willingham’s execution.

Still, Governor Perry’s amoral braggadocio pales in comparison to the mind-boggling jitbaggery that is Supreme Court Justice Antonin Scalia. When the Davis case percolated up to the SCOTUS a couple of years ago, Scalia proclaimed, in dissenting with a decision to order a federal court in Georgia to examine the evidence, that “actual innocence” (his quotation marks) is insufficient to overturn a conviction: “This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent.”

A zillion years ago, I was in a production of a rather bad (who am I kidding? very bad) play called The Downstairs Dragon. The play is set in a small-town museum, and there’s a dragon in the basement. I played a gray-bearded (I needed makeup then) member of some learned society—the Society for the Encouragement of Wisdom in America, or something like that. Rather than opening the trap door and seeing the beast, however, we all debated whether or not a dragon could exist: one of us argued psychologically, another sociologically, another zoologically. I was the religious zealot. Anyway, we all decided that there couldn’t possibly be a dragon there. It was a little difficult to finished our debate, of course, because we had to shout to be heard over the roaring of the dragon.

Scalia’s position strikes me as about as intellectually coherent. The Constitution doesn’t forbid the execution of an innocent man? I’m no lawyer, but killing someone for something he didn’t do smacks of cruel and unusual punishment to me. This is the same Antonin Scalia, of course, who argues that corporations are people, based on… well, damned if I know. (Best snarky political line I’ve seen in a while: I’ll believe corporations are people when Texas executes one.)

More to the point, I really don’t care if the Court has never prohibited the execution of the innocent. It bloody well should have. Prior to 1954, that same court had never had a problem with “separate but equal.” No one whose surname isn’t Paul is sad that the SCOTUS overturned Plessy v. Ferguson. If Mr. Davis could have proved his innocence (not merely “reasonable doubt,” or even the “preponderance of the evidence,” but demonstrated his actual innocence), Scalia would still have cheerily allowed the execution to continue, caring more about his idiosyncratic reading of the Constitution than about the obviously just decision. I’m beginning to think Sonia Sotomayor’s “empathy” is not a bad thing at all. As a reader of the Curmudgeon Central Facebook page put it, “There are a surprising number of people in high, influential positions in this country who would greatly benefit from being punched really hard right in the fucking face. I'm pretty sure that's constitutional too.” I’m not sure that would knock the supercilious smirk off Scalia’s face, or even get his attention, but I’m willing to try.

And so… I’m still not entirely convinced that there isn’t a place for the death penalty in carefully delineated circumstances. But the Troy Davis case weakens my resolve. Unlike Justice Scalia, I’d rather not cling to legal niceties if the result is, or even very well might be, the state-sanctioned murder of a non-murderer.

Too Big to Succeed

Remember when we were told a couple of years ago about the banks that were “too big to fail”? Well, the Supreme Court ruled today, in effect, that the class-action sex discrimination suit filed by a million and a half women against Wal-Mart was, well, too big to succeed.

Or at least today’s ruling in Wal-Mart v. Dukes certainly seems to be based on that rather curious premise. True, there’s some legalistic mumbo-jumbo in there, and it appears that in strictly legal terms the women filed the wrong kind of claim (that was the unanimous decision of the court). But ultimately, the problem was that they couldn’t provide the “glue” (Justice Antonin Scalia’s word) that held every presumed member of the class together. In the majority opinion, then, the “[respondents’] wish to sue for millions of employment decisions at once” is at the crux of the problem. In other words, the suit was simply too big.

The key word was “commonality.” Here’s Justice Scalia for the majority:

Commonality requires the plaintiff to demonstrate that the class members “have suffered the same injury.” This does not mean merely that they have all suffered a violation of the same provision of law. Title VII, for example, can be violated in many ways—by intentional discrimination, or by hiring and promotion criteria that result in disparate impact, and by the use of these practices on the part of many different superiors in a single company. Quite obviously, the mere claim by employees of the same company that they have suffered a Title VII injury, or even a disparate-impact Title VII injury, gives no cause to believe that all their claims can productively be litigated at once. Their claims must depend upon a common contention—for example, the assertion of discriminatory bias on the part of the same supervisor. That common contention, moreover, must be of such a nature that it is capable of classwide resolution—which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.

What matters to class certification . . . is not the raising of common ‘questions’—even in droves—but, rather the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation. Dissimilarities within the proposed class are what have the potential to impede the generation of common answers.”

OK, if I’m reading this correctly, what all this means is this: in order to file a class action suit, complainants must demonstrate that they suffered precisely the same injury from precisely the same source. The only way to demonstrate that would be to affirmatively prove a corporate culture whereby personnel decisions at individual stores, while presumably made locally, are in fact sufficiently influenced by a corporate culture that the decisions of a manager in California are in fact not independent of those made by a manager in New Jersey. That’s a very high hurdle, indeed, one which the majority (the usual suspects—Roberts, Scalia, Thomas and Alito—plus the occasionally free-thinking Kennedy) did not think had been met.

If that really is the standard, I’d have to agree with them. That is, if you really have to prove that the cashier who didn’t get a raise in Topeka and the model employee who was passed over for promotion in Ashtabula are victims of precisely the same decision-making process, I’m not sure you can get there. But, of course, here’s where there is dispute among the various justices. Justice Ruth Bader Ginsburg, writing for a minority which perhaps not-so-coincidentally included the other two women on the court (Kagan and Sotomayor), plus Breyer, argues that the very act of ceding authority to local managers is a consistent policy: “Wal-Mart's delegation of discretion over pay and promotions is a policy uniform throughout all stores.”

She also cites the precedent of Franks v. Bowman Transp. Co., in which “We recognized that the ‘qualification[s] and performance’ of individual class members might vary. ‘Generalizations concerning such individually applicable evidence,’ we cautioned, ‘cannot serve as a justification for the denial of [injunctive] relief to the entire class.’” For Ginsburg, the question isn’t whether common questions are the “glue” that joins all the complaints together, but rather whether such concerns “predominate” over individual matters.

For the majority, however, the fact that the corporation has a non-discrimination policy and procedures for filing discrimination complaints is sufficient to absolve Wal-Mart as a corporation from responsibility for the actions of dozens (hundreds? thousands?) of its managers, even if those individual actions were in fact discriminatory. Justice Scalia even snarkily observes that the women’s case has a mere 120 affidavits (“about 1 for every 12,500 class members—relating to only some 235 out of Wal-Mart’s 3,400 stores”).

On this point, it seems to me that the good Justices could use a bracing jolt of the real world. Every corporation in the country has a non-discrimination policy; every one has an appeals procedure. These don’t exist because companies believe in equal opportunity; they exist because companies want to seem to believe in equal opportunity. They exist because their lawyers tell them—with cause, apparently—that some judge somewhere will be stupid enough to believe that a corporation’s public declarations have anything whatsoever to do with its actual day-to-day decision-making. If Mr. Scalia and his cronies got out more, they’d know that there are a million subtle and not-so-subtle ways of allowing all manner of discriminatory practices. Having a policy and enforcing it, in other words, are independent concepts.

Be it noted: the Court didn’t actually decide on the merits of the discrimination case, only on whether the women can legitimately be termed a class. The corporation’s official statement, then, that the decision “pulls the rug out from under the accusations made against Walmart over the last 10 years” is, like virtually everything else to come out of that company’s upper management, so much bullshit. There is no vindication of Wal-Mart’s actions here, only of their narrowly defined legal position.

There is, of course, plenty of evidence of discrimination: evidence in the form of anecdotal testimony, of statistics, of expert testimony about corporate culture. Indeed, Justice Ginsburg lays out the statistical case pretty well in her dissent:

Women fill 70 percent of the hourly jobs in the retailer’s stores but make up only “33 percent of management employees.” “[T]he higher one looks in the organization the lower the percentage of women.” The plaintiffs’ “largely uncontested descriptive statistics” also show that women working in the company’s stores “are paid less than men in every region” and “that the salary gap widens over time even for men and women hired into the same jobs at the same time.”

The ramifications of the decision are considerable: proponents of both sides agree that the ruling is probably the most important consideration of the notion of class action in a decade or more. Business advocacy groups, or at least those who, like the national Chamber of Commerce, represent largely major corporations, are thrilled because today’s ruling makes it more difficult for complainants to join resources, or indeed to exact significant penalties from deep-pocketed defendants.

On the other side, of course, are those who, like Joseph M. Sellers, a lawyer for the plaintiffs, believe the majority “reversed about 40 years of jurisprudence that has in the past allowed for companywide cases to be brought challenging common practices that have a disparate effect, that have adversely affected women and other workers.” Even more scathing—and no less accurate—is the critique of Marcia D. Greenberger, co-president of the National Women's Law Center, who said “the court has told employers that they can rest easy, knowing that the bigger and more powerful they are, the less likely their employees will be able to join together to secure their rights.”

The women at the forefront of the case have vowed to fight on, and they may well succeed, either as individuals or as members of smaller, more homogeneous classes. But Wal-Mart is playing a divide-and-conquer game here, and will now be able to discount the most significant testimony against the corporation. They will, in other words, claim—just as Justice Scalia says they will—“to have been applying some sex-neutral, performance-based criteria—whose nature and effects will differ from store to store.” In other words, it just sort of worked out, corporation-wide, that men got more management opportunities, more raises, and all that stuff—and for a veritable cornucopia of different reasons. Coincidence is a wonderful thing, isn’t it?

As I’ve said here before, as in the case of the Westboro Baptist Church or the Silsbee High School cheerleader, what is legal is not necessarily what is just. That may be the women’s problem: they sought justice from a multinational monstrosity and from the Supreme Court. The former is unwilling, and the latter unable, to provide it.