The Supreme Court this morning returns to the long-running controversy over the power of federal courts to act as a check on how state courts handle criminal trials, and Congress’s power to limit that checking function. This will be the final hearing of the current sitting, and thus the last of 2021. (The opening hearing tomorrow, involving an important test of religious freedom claims, was discussed in this space yesterday.)
The “live” audio (no video) of the Court’s hearings can be found at Quick Links on the Court’s homepage – supremecourt.gov – and at c-span.org/supremecourt and C-Span App Now.
The case of Shinn v. Ramirez. Scheduled for one hour, it probably will begin at about 11:30 a.m. today, after the hearing on the religion case has ended.
Background: The history of how the Constitution treats crime and criminals is, in many ways, an ongoing story of conflict between elected lawmakers in Congress and state legislatures – politically eager to make sure that judgment of criminals is swift and sure, and the courts – institutionally inclined not to rush to judgment.
In modern times, much of the tension is over how many times a convicted individual can go to court to challenge a conviction or a sentence, and how long it takes for that process to reach finality. And that tension has two components: how to read the Constitution’s protection of the ancient “writ of habeas corpus” and how to interpret a 1996 law that seeks to speed up the criminal justice process – the Antiterrorism and Effective Death Penalty Act.
Habeas corpus (Latin, meaning “you have the body”) has been a part of Western legal culture for at least seven centuries and perhaps even longer (some historians say it dates to Magna Carta, in 1215). That concept assigns to the courts the power to demand that the government justify holding a prisoner. The 1996 law (AEDPA) was a joint effort of politicians who wanted to react to the terrorist bombing of the Oklahoma City federal building and those who wanted to speed up court processing of death sentences imposed in state courts and reviewed by both state and federal courts.
To a significant degree, the intersection of habeas law and criminal case procedures contributes to lengthening the time that a convicted individual’s case will remain in the courts.
Consider this potential sequence of review: After the state court verdict is in, the individual can pursue an initial appeal in state courts, and then attempt to take it to the Supreme Court if constitutional or federal law issues are involved. If that route fails, the individual can start over with a new “collateral” (that is, post-trial) challenge in state court, and pursue state court appeals on that. If that fails, the next layer is a habeas challenge in federal court, going through two lower courts and a possible trip to the Supreme Court.
Because Congress can do little to force states to speed up their court processes, the focus of the 1996 law (AEDPA) is on curbing the federal review part of this sequence, especially repeated returns of a state prisoner to federal court with new claims based upon the right under habeas principles to challenge a verdict or a sentence.
Each time a convicted individual’s rights are defined in a new way, especially by the Supreme Court, state prisoners can try to take advantage of that.
Here is an example of how that works, based on two Supreme Court rulings that are in the background of today’s Supreme Court hearing. In 1963, the Supreme Court – in the historic decision in Gideon v. Wainwright — gave poor people prosecuted in state court a right to a free lawyer under the Sixth Amendment’s promise that everyone accused of crime will “have the assistance of counsel for his defense.”). Later, in the 1984 decision in Strickland v. Washington, the Court ruled that the lawyer must be “effective” and it provided a minimum standard of professional conduct.
Together, those two rulings, in combination, continue to produce waves of new habeas challenges. To add to the complexity, the guarantee of a right to a lawyer does not apply to all stages of prisoners’ challenges to state guilty verdicts or sentences.
The right has been interpreted to exist at the initial trial and in the initial state court appeals and to an appeal from there to the Supreme Court. But it is not guaranteed in post-trial challenges in state court (unless it is provided by state law). When the individual turns to federal court in the habeas process, that is treated as a civil not a criminal proceeding, and the Court has not extended the right to a lawyer to that process. However, there are public defender groups that will take on a habeas case, and the judges in such cases have the authority to name a lawyer if the individual can’t afford one.
The Supreme Court, in the second hearing scheduled for this morning, will resume the process of trying to sort out habeas and AEDPA issues in an appeal by the state of Arizona involving two men under death sentences after being convicted of murders in that state.
David Martinez Ramirez was sentenced to die for the 1989 murders of a woman and her 15-year-old daughter in a struggle after he had sexually assaulted the daughter. Barry Lee Jones received the death penalty for the 1994 murder of his girlfriend’s four-year-old daughter by striking her body with blows so severe that she died the next day; he also was convicted of sexually assaulting the child.
In each case, the convicted individuals failed in initial appeals in state court, and failed again in state post-trial challenges. When the two men ultimately filed habeas claims in federal court, they made complaints about their trial lawyers’ effectiveness – claims that had not been made in state court at all, either at trial, on initial appeals, or in post-trial challenges. Ramirez’s complaint was that his trial lawyer failed to offer evidence of his mental disability; Jones’s complaint was that the medical evidence was flawed, and did not prove that he committed murder.
Arizona officials argued in response to these claims that federal courts could not even consider them. Under AEDPA, the state noted, a federal court is barred from reviewing facts or other evidence if that was never brought up during the trial. Like other provisions of AEDPA, that provision was designed to keep convicted individuals from reopening in federal court the record of their state trials, prolonging the case.
The state’s argument failed in a federal appeals court. That court said the failure to bring up the evidence at trial was the fault of the trial lawyer, and that the failure to bring it up during state appeals was the fault of the lawyers the men had had in those proceedings. Those failures, that court said, excused the failure to put that evidence before the jury and could be brought up in the federal habeas review, despite the AEDPA restriction.
The appeals court based that conclusion upon a 2012 Supreme Court ruling in the case of Martinez v. Ryan. That was a case about federal courts’ habeas procedures, but it had nothing directly to do with any limitations imposed on that process by AEDPA. The Supreme Court said that, as a matter of basic fairness, there has to be some point in a state case where a claim that a defense lawyer had been ineffective could be raised, if that had not been done at the trial itself. If the lawyer in a post-trial proceeding also did not raise it, then the federal court was free to examine it in the first instance and rule on it, the Court said.
Relying upon its interpretation of that precedent, the appeals court examined the ineffective lawyering claims now at issue. In separate rulings, it found that Ramirez was entitled to a new hearing on his complaint about the evidence that his lawyer did not offer, and that Jones was entitled to a new trial because of the flaws in the medical evidence.
Arizona officials appealed the case to the Supreme Court, arguing that a federal court does not have the power to set aside a part of a law passed by Congress limiting court powers, and then substitute for that a court-made rule. The Court agreed to review the case.
The question before the Court: Does the 1996 AEDPA law bar a federal court from deciding an issue in a state criminal case, if that issue is based upon evidence that defense lawyers had failed to put before the state courts?
Significance: It is fair to assume that the federal courts often feel some institutional discomfort when Congress takes control of their procedures – as the Constitution seems clearly to allow and as Congress definitely did in AEDPA. This case is a significant test of how far those courts may go in resisting such legislative mandates.
The 2012 precedent on which the appeals court relied in this case was based upon the power of courts to work out, on their own, procedures to implement rights such as the right to a defense lawyer in a criminal case. The Court will have to decide how freely federal courts are to manage themselves.
Arizona state officials do not appear to be exaggerating when they argue in their legal papers that the departure in this case from the text of AEDPA could encourage courts to fashion other exceptions to that law. This case, then, is not likely to be the last of the challenges the Supreme Court will have as the interconnection between rights and AEDPA continues to churn up new controversy.
After this case, the Court has not scheduled further hearings until January 10. In the next round, it will continue its current practice of releasing “live” audio of the hearings.