0:00:00.0 Speaker 1: We'll hear argument next in case 20-1009 Shin versus Ramirez.

[music]

0:00:10.8 Speaker 2: Hey everyone, this is Leon from Fiasco and Prolog projects. On this week's episode of 5-4, the hosts are talking about Shin v. Ramirez. This is a case about whether or not you can challenge a conviction with new evidence if you have the misfortune of being assigned a bad lawyer, not once but twice.

0:00:27.7 Peter: Barry Lee Jones was sentenced to death for killing a four-year-old girl, but just a few years ago, a judge tossed out the verdict and ordered a retrial because of a shoddy defense. Today's ruling means that retrial won't happen.

0:00:43.3 Speaker 2: Jones, the defendant in this case, is now sitting on death row, and thanks to the court, a judge has never and will never see the evidence that could clear his name. This is 5-4. A podcast about how much the Supreme Court sucks.

0:01:04.0 Peter: Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have buried our civil rights, like a politician burying evidence of his sons DUIs.

0:01:14.9 Rhiannon: Wow, that's nice. Is it as current events as we have been recently, have you heard of this happening?

0:01:22.0 Peter: I was inspired by that attorney general in South Dakota who hit a guy...

0:01:27.2 Rhiannon: Oh yeah.

0:01:28.3 Peter: But it's ancillary. This is an off-shoot...

0:01:31.1 Rhiannon: Sure, yeah, yeah.

0:01:32.3 Peter: Of that story.

0:01:34.0 Rhiannon: I love it.

0:01:34.1 Peter: I'm Peter and I am here with Reanna.

0:01:35.1 Rhiannon: Hey, hello everyone.

0:01:37.6 Peter: Michael taking the week off because his wife is sick.

0:01:41.8 Rhiannon: Yeah.

0:01:41.9 Peter: And here at 5-4, when your wife is sick, you get the week off.

0:01:44.0 Rhiannon: We're good partners here.

[chuckle]

0:01:46.1 Peter: Today's case is Shin v. Ramirez, this is a case from just a few weeks ago about whether after you've been convicted for a crime, you can bring a habeas corpus claim, arguing that you received ineffective assistance of counsel, we'll break down what that means shortly, but the real question underlying this case is if a convicted prisoner has evidence of his innocence, never before seen by a court, does he have a constitutional right to have that evidence seen and evaluated. This is actually a couple of different cases consolidated, but we are going to focus on a man named Barry Jones who was convicted of the brutal 1994 sexual assault and murder of a four-year-old child. Jones always maintained his innocence, arguing that his state-appointed attorneys failed to introduce crucial evidence that showed if he did not do it. This is a very technical case because habeas corpus rights are very difficult to navigate, but the bottom line here is actually very simple, Barry Jones has credible evidence that he is innocent, his lawyers at trial did not introduce that evidence.

0:03:05.2 Rhiannon: Right.

0:03:05.5 Peter: His lawyers in subsequent proceedings also failed to introduce that evidence.

0:03:08.0 Rhiannon: Right again.

0:03:08.0 Peter: So he files a Writ of habeas corpus, which is a method under the Constitution for challenging your conviction. He says, "Hey, I have this evidence that I'm innocent. My lawyers never presented it because they're all terrible, I should be given a new trial." In 2018, a Federal Court agreed holding that he had received ineffective counsel at trial, and that had he received adequate counsel, there was a good chance he'd be found not guilty, but the Supreme Court, in a six to three decision written by Clarence Thomas, reversed that decision, holding that Jones could not introduce new evidence even if it was likely to show that he was actually innocent.

0:03:54.0 Rhiannon: Disgusting.

0:03:57.6 Peter: So Ree, the unfortunate task of describing the background here belongs to you.

0:04:03.8 Rhiannon: Yeah, yeah, no, it's pretty horrific. A four-year-old ends up dead here, and the allegations are pretty gruesome, but it is important to remember, what we're gonna talk about in this episode is that Barry Jones has evidence that he's innocent of this. Right? So stay tuned, I guess. So Barry Jones was arrested in 1994 on May 2, in Tucson, Arizona. Earlier that morning, the body of his girlfriend's four-year-old daughter Rachel was found in the trailer where Jones and his girlfriend lived. Now, Rachel had died of a rupture in her small intestine that developed into a fatal condition called peritonitis. Immediately though, police assumed that Rachel had been sexually assaulted and beaten, and they also immediately assumed that Barry Jones did it.

0:04:55.8 Rhiannon: Barry Jones went to trial and received terrible representation at that trial like Peter previewed, his lawyer did no investigation to look into the police's investigation, his lawyer did not point out that Barry Jones was the sole suspect the police had, never looked at anybody else. The lawyer didn't speak with or call a medical expert to the trial who could review the child's medical records and the autopsy report, the lawyer also called no witnesses at trial except for Jones's other 12-year-old daughter, and that 12-year-old daughter today is an adult and she says that she was completely unprepared for that experience, that the lawyer didn't prep her at all for her testimony. So these are giant missteps, and these giant missteps are important to Jones because had his lawyer done a competent job, had he done investigation for his client, had he consulted with experts and scientists, had he called witnesses who were there in the days before baby Rachel died, all of these things that a decent criminal defense attorney worth a penny would do.

0:06:03.6 Rhiannon: Jones's case would have been completely different because actually there was no evidence that Jones sexually assaulted little Rachel. And the State's theory of the case was that Jones did these horrific things during this really specific window of time, the day before Rachel was found dead, they said that Jones was with Rachel at this time, and that must have been the window when he did this stuff to Rachel. But medical experts afterwards, who looked at the evidence said that the injuries couldn't have happened at that time when the state said, that the initial injury developing into the fatal condition that Rachel ended up dying from, that that takes longer than a day to develop.

0:06:44.9 Rhiannon: So Jones had a terrible lawyer at trial, but then he also had a terrible lawyer in his post-conviction proceedings, so usually in post-conviction proceedings, these are a special type of appeal, also known as state habeas in some places. A prisoner can bring up the constitutional violations that they suffered during the trial. So here Jones is wanting to show that his sixth amendment right to effective assistance of counsel, that was violated because he had a terrible lawyer at trial. But unfortunately for Mr. Jones and a really extra sad aspect of this story is that Mr. Jones had a terrible lawyer appointed to him by the State of Arizona a second time, his lawyer in his post-conviction proceedings was also ineffective.

0:07:35.3 Rhiannon: This lawyer wasn't even qualified under Arizona State Law to take this kind of case, but the state waived those requirements and appointed the lawyer anyways. The lawyer, again, did no investigation into what happened at trial, did no investigation about the ineffective assistance of counsel that Mr. Jones had a trial and did no investigation into the claims that Mr. Jones had that he was innocent.

0:08:02.2 Rhiannon: So importantly, as a result of this terrible representation in post-conviction proceedings, Mr. Jones's post-conviction lawyer did not make the claim that Mr. Jones's trial lawyer had been ineffective. For a lot of complicated reasons, in post-conviction, you often have your one shot at making a claim and making a claim under the Constitution, and so when you don't bring up that claim, it could be that you're barred from making the claim ever again. And so that's where Mr. Jones finds himself in this situation where he's having to bring up a brand new claim now in federal court that both of the lawyers he got were ineffective.

0:08:43.7 Peter: Right. So generally, prisoners can challenge the constitutionality of their conviction or imprisonment through habeas corpus. We've talked about habeas corpus before, but that's essentially all it is, it's the constitutional mechanism for challenging your confinement. And don't let the Latin name throw you here, it's just something you file with a court similar to any other type of lawsuit.

0:09:05.2 Rhiannon: Sure.

0:09:06.0 Peter: So Barry Jones is convicted, he initiates a post-conviction of proceeding, arguing that he did not receive adequate counsel at trial because this key evidence was left out and no investigation was done, then his lawyer in those proceedings did a terrible job too. So he files a federal habeas corpus petition saying, "Hey, my rights are being violated here. There's all this evidence that I didn't do it, and none of my lawyers ever introduced it."

0:09:36.9 Rhiannon: Right, and just to jump in, to summarize some of that evidence again. First of all, the cop who ran the investigation never tried to solve how Rachel was actually killed. There was evidence that Rachel's mother had a history of abuse. Rachel's older brother and her mom's former partner were both alleged to have a history of abuse, and some of Rachel's injuries were later shown to possibly even pre-date the beginning of her mother's relationship with Jones. There was also forensic evidence that was just totally lost, plus the jury never heard from any of the forensic witnesses, basically, the cops were just fixated on Jones from the beginning. And they didn't follow up with any of these other leads. Plus on top of that, his shitty lawyers never called any of that into question.

0:10:26.7 Peter: Right. So there are multiple layers of inadequate lawyers here, but at the most basic level, Jones is saying that there is evidence of his innocence that neither his original lawyer nor his post-conviction lawyer ever addressed, ever introduced.

0:10:43.2 Rhiannon: Right, exactly.

0:10:44.2 Peter: Under the Constitution, Jones should be able to challenge his conviction on the basis that his lawyer was inadequate, and the Supreme Court in fact confirmed that in a 2012 case called Martinez v. Ryan, where it said, "Yes, you can bring habeas claims based on your ineffective assistance of counsel." But there's a twist here. In 1996, Congress passed AEDPA, the Anti-terrorism and Effective Death Penalty Act. That law was designed to make the death penalty process more "efficient", in the sense that it was designed to make it harder for prisoners to appeal or otherwise contest their death penalty convictions and sentences.

0:11:25.3 Peter: One provision of the law says that you cannot present exculpatory evidence in habeas proceedings if you did not first develop the evidence in state court in your post-conviction proceedings, which would mean that Barry Jones cannot now introduce new evidence of his own innocence. It's essentially too late, he would have had to do it in one of the state court proceedings. So the question is essentially, is there a constitutional right for Jones to introduce this evidence now or no?

0:11:58.2 Rhiannon: Yeah, and I think what's really important is the case that you mentioned Peter, Martinez v. Ryan, it's a 2012 case, like you said, that sort of creates an exception to AEDPA, you can think about it as an exception to AEDPA. AEDPA makes it really hard to bring any claims and makes it really hard to develop new evidence in federal court. They say you can't do that. You have to first develop your evidence in state court, you have to make all of the claims that you're gonna make in federal court, you have to bring them on the first shot you have, which is in state court. But what Martinez says is actually, if you had ineffective assistance of counsel at your trial, and then again, you have ineffective assistance of counsel in your state post-conviction proceedings, then you would never have the chance to develop any evidence or to bring this claim. So what Martinez says is you can bring a claim for ineffective assistance of counsel for the first time if you had ineffective assistance of counsel in your trial and in your post-conviction proceedings.

0:13:01.9 Peter: Right, basically, if you've never seen a good lawyer...

0:13:04.6 Rhiannon: Right, exactly.

0:13:05.7 Peter: You can bring an ineffective assistance claim in a federal habeas proceeding.

0:13:09.7 Rhiannon: Exactly, even though AEDPA would say that you're barred from doing that.

0:13:13.4 Peter: Right. So obviously there's a lot going on here, procedurally, let's walk through what happened here again before we get to the opinion. Barry Jones is tried for this murder, his lawyer at trial fails to put forward the ample evidence of his innocence, he is convicted, and he tries to argue in a post-conviction proceeding that his lawyer was inadequate because again, he failed to introduce these exculpatory evidence, but his post-conviction council also sucks, so the evidence never gets introduced, and so Jones is trying to use his constitutional right of habeas corpus to introduce the evidence now, and the court says, "No."

0:13:53.0 Rhiannon: Nope.

0:13:54.1 Peter: So let's walk through the opinion itself. Literally half of the opinion, 11 of 22 pages is Clarence Thomas walking through a detailed accounting of the murder. We talked about this last week, how this is a tactic the conservatives deploy usually in criminal cases, and the point of course is to provide the court with an excuse to strip away the prisoner's rights, they are giving themselves permission to treat the defendant inhumanely.

0:14:25.4 Rhiannon: Exactly.

0:14:26.4 Peter: But in this case, this tactic is a little more disgusting than it usually is, because Thomas doesn't just recount the crime, he specifically says that Jones did it. He starts off, "On May 1, 1994, Barry Lee Jones repeatedly beat his girlfriend's four-year-old daughter, Rachel Grey." The entire issue in this case is that we are trying to figure out whether that is actually true. Jones is arguing, and other federal court judges have agreed that there is credible evidence that he is an innocent man, and not only is the court not letting him show that evidence, it's explicitly saying, "He did the crime." Absolutely amoral and disgusting.

0:15:20.7 Rhiannon: Really unbelievable. Yeah.

0:15:22.2 Peter: And it strips the veil back a little. Now, you can't say that this decision is just about procedural technicality or something. They are telling you off the bat that it's not about any of that, it's about the fact that they don't even care about evidence, they believe in their gut that he did it. That's how conservative jurisprudence on criminal procedure and conservative thought on crime generally inverts the fundamental purpose of the criminal justice system. The purpose of the process should be to make our best effort to uncover the truth of the matter, whether or not he actually committed the crime, but here are the conservatives revealing that that's not the purpose to them, they assume that conclusion. The purpose to them is just to punish pre-selected out groups. And truth is secondary.

0:16:12.5 Rhiannon: Yeah, I think we'll say it probably over the course of this episode more than once, but the purpose of the... Not just the system as a whole, but the purpose of these kinds of appeals specifically, is that you are checking on the efficacy, the accuracy of state court proceedings to make sure that often in these really unfair, terrible situations for poor defendants, that their rights were actually protected, that their rights were vindicated, that no conviction was handed down without there being due process. And Thomas is just kind of fundamentally brushing that off and saying like, the purpose of all of this is to bar defendants from bringing their claims and developing evidence.

0:17:02.4 Peter: Right. And Sotomayor in her dissent says, "Well, it doesn't matter how severe the crime, everyone is entitled to their constitutional rights, just the same." Which is true, but also skips over the fact that we're supposed to be arguing in a sense about whether this guy is innocent. Right?

0:17:20.8 Rhiannon: That's right.

0:17:21.9 Peter: It's just unreal. Again, it's one of those things where even after reading Supreme Court decisions from these complete psychos for two and a half years straight, it was one of these things where I read it and was like, "Goddamn. This is just unreal. Amoral shit. It's disgusting."

0:17:39.9 Rhiannon: Yeah, we talked about it last week with how the court often does this with anybody that it's wanting to dehumanize to belittle to other eyes. There's gonna be some long screed somewhere in the opinion, usually up top, usually at the beginning, like telling you what a bad guy we're dealing with, instead of... And here, it's just all the more shocking that like, no, we're talking about somebody who's likely innocent.

0:18:05.4 Peter: Right, right. So when he finally gets to the actual legal argument, Thomas spends first just like a whole bunch of time, kinda just shit talking habeas corpus rights. [chuckle] He says federal habeas power, "Overrides the state's sovereign power to enforce societal norms through criminal law." Which like... Yeah, it's a constitutional right. That's literally how all of them work.

0:18:32.4 Rhiannon: Exactly.

0:18:33.0 Peter: You will never catch the conservative saying that about the free exercise clause or something. Well, this is overriding the state's rights. No, I mean that's just how constitutional rights work, and yet when it's a right that they don't like, they start talking about state's sovereignty, like it's this novel thing that only exists in this context, it's bizarre. He also says that it imposes significant costs, which again... Yeah, it's a constitutional right. [chuckle]

0:19:04.0 Rhiannon: Right, exactly.

0:19:04.6 Peter: It's in the constitution. Yes, criminal procedure is costly, like ensuring that people are not being put into prison unjustly is a costly thing, it is literally the cost of a free and just society, that is what the actual cost is.

0:19:22.6 Rhiannon: That's the actual point. And you know what Thomas fails to do in this calculation of the cost and the burden on states is that he fails to consider what else is a cost is keeping somebody on death row who doesn't need to be there. That's a huge cost. What about the societal cost of executing innocent people? To Clarence Thomas, that cost is worth it because he doesn't even consider it as a cost here.

0:19:46.3 Peter: Keeping them away from their family, away from jobs, etcetera, these are all real costs.

0:19:53.1 Rhiannon: Yeah.

0:19:53.3 Peter: But obviously he doesn't talk about it at all, all he means is just like litigation costs.

0:19:58.8 Rhiannon: Yeah, he's like, states have to do some procedures, and that is hard.

0:20:04.2 Peter: Right. [chuckle] So then he moves on to his main argument, which is blaming the prisoner for his own inadequate representation, and this is where the opinion gets a little bit hard to believe. Thomas argues that the prisoner himself is at fault for the failure of his lawyer to introduce the evidence of his innocence, so literally blaming the lawyer's failure in representing the defendant on the defendant himself, that is not an exaggeration of the holding here. Here's a quote, "Post conviction councils ineffective assistance in developing the state court record is attributed to the prisoner."

0:20:43.1 Rhiannon: Period.

0:20:44.2 Peter: He says that it's the prisoners obligation to develop the record in post-conviction proceedings, meaning it's his obligation to introduce any exculpatory evidence. If he doesn't, he's out of luck, and it's his fault. Now, if you're thinking, Why is Jones at fault for his lawyer's mistake? Doesn't he have a right to a competent lawyer? That's a good instinct.

0:21:04.0 Rhiannon: Yeah, yeah.

0:21:05.8 Peter: A great question. The reason given by Thomas is that under court precedent, the Sixth Amendment, which guarantees a right to a lawyer, only applies at the original trial, there's no specific right to counsel in post-conviction proceedings. So in the first trial where he was convicted, he had a right to an effective attorney. But in the post-conviction stage, the constitutional right to an attorney no longer applies, and therefore the prisoner is responsible for whatever happens. So Jones had a trial with ineffective counsel, failed to introduce the evidence of his innocence, then he had his post-conviction proceeding where that lawyer also failed to introduce the evidence, and Thomas is saying, Well, the first lawyer messing up isn't your fault, but the second one is because you're responsible for your lawyer's mistakes in post-conviction proceedings, so you had your chance to introduce the evidence, but you didn't and it's your fault, you're out of luck even though it was probably functionally your lawyer's mistake.

0:22:15.5 Rhiannon: Yeah, it's absolutely the lawyers mistake, plus, while Thomas is imputing all this responsibility on to Jones himself for the terrible post-conviction proceedings against him, where is Mr. Jones? What could he be doing? He's literally living on death row, he's already been convicted and sentenced to death, how is he supposed to investigate, how is he supposed to develop these claims other than through his attorney.

0:22:39.6 Peter: And yeah, if you take a step back from this and you're just like, I don't get it... There's two proceedings and he has bad lawyers at both and one is his fault and the other's not, and the constitution applies to one and not the other. This is just a maze of garbled nonsense.

0:22:53.5 Rhiannon: Right.

0:22:54.3 Peter: Yeah. Again, good instincts. That's correct, this is in fact a maze of garbled nonsense.

0:23:02.3 Rhiannon: Yeah.

0:23:02.9 Peter: So the holding of the court here functionally is if the state appoints to you enough bad lawyers, one after another, at some point you're screwed and the blame is placed on you, there's nothing you can do, even though at every single nodal point of your criminal prosecution you've been denied your right to an adequate attorney. Insane holding, an insane holding so devoid of morality and empathy that I cannot believe it. Truly disgusting.

0:23:36.3 Rhiannon: Yeah. And devoid of reality, it's just, it's nonsensical, it doesn't take into account people's lived experience, it doesn't take into account somebody's situation when they are challenging a death sentence, when they have evidence of their innocence and they are on death row. What that looks like. How do you bring these claims? And the court here is not only saying that, Look, this is kind of on you, your lawyer's faults in post-conviction proceedings are actually your faults that you're responsible for, and there's nothing else we can do. That's what the court is saying to Mr. Jones, but also cutting off this avenue for many, many, many other people.

0:24:21.9 Peter: Right, and the bottom line here is that even though there's strong evidence that Jones innocent and his lawyers failed to introduce evidence of that innocence, the court is refusing to hear the evidence or allow it to be heard, and they are blaming Jones himself...

0:24:40.3 Rhiannon: That's right.

0:24:40.9 Peter: For his inadequate string of lawyers.

0:24:43.5 Rhiannon: Yeah.

0:24:45.1 Peter: Really an unbelievable holding.

0:24:46.5 Rhiannon: It's unbelievable, and because of the individual facts of Mr. Jones, of Mr. Jones's life, of the innocence claim that he has here, of the ineffective assistance of counsel claims multiple that he has here, it's also an unbelievable holding as to the scope. The scope of this holding is not only that the court is refusing to hear the evidence in Mr. Jones's case, but that a federal court cannot have an evidentiary hearing to establish these claims for anybody else either. Right? So the holding isn't just to Mr. Jones himself, but to the federal courts in general, hearing habeas claims, they cannot have evidentiary hearings to develop these ineffective assistance of counsel claims where a prisoner was unable to develop that evidence beforehand.

0:25:37.6 Peter: Right, and speaking of the scope of the holding, perhaps we should talk about innocence, because in habeas proceedings, there are a ton of procedural technicalities.

0:25:50.6 Rhiannon: Yes.

0:25:51.2 Peter: And as a result the court has held that if someone's actual innocence is at stake, we will not be so rigid on the procedural technicalities. Right? There will be a deference in those situations generally given to a prisoner, basically saying, Look, there are a lot of procedural reasons why we might toss a habeas claim out, but if you're bringing your actual guilt or innocence into question, that's something that courts will generally want to hear, so we'll defer to that. This case seems to be a step away from that, even though it's not really addressed directly by Thomas, it seems to me, and like the actual innocence thing, it's something that's been kind of trickling around the jurisprudence for a couple of decades, but only really firmed up in the past decade or so.

0:26:44.8 Rhiannon: Yeah.

0:26:45.4 Peter: So this is something that it seems like the conservatives might be ready to abandon, which would be a really, really unfortunate turn in an already sort of brutal area of the law.

0:26:58.0 Rhiannon: Yeah, yeah, I think that's right. I think that's one of the fuck-face Scalia's legacies.

0:27:04.3 Peter: Yeah. [chuckle]

0:27:04.9 Rhiannon: He was somebody who said multiple times that new evidence of innocence isn't enough to get you into court in habeas, in federal habeas, and... Yeah, it absolutely seems like the conservatives are poised to... Someone like Neil Gorsuch seems to be somebody who would really latch on to this Scalia junior stuff.

0:27:24.9 Peter: Yeah, yeah.

0:27:26.6 Rhiannon: This feels like a good time to take a break.

0:27:29.0 Peter: Alright, we are back.

0:27:30.9 Rhiannon: We should talk about Justice Sotomayor's dissent, which I think is pretty strong, just in terms of calling out this sort of illogic, the in-coherence of this opinion, but also in some ways, I think doesn't hit the emotional impact that it could and doesn't highlight again, like the sort of absolute tragedy at the heart of this case, which is that Mr. Jones remains on death row and will likely be executed without a court ever hearing these claims. So she says that the majority opinion is illogical and incoherent based on the precedent that we talked about before, based on that Martinez case. So like I said, but it bears repeating. AEDPA, the federal statute, makes it harder to get relief in habeas proceedings. AEDPA basically poses a lot of extra procedural rules about when and how you can make habeas claims in federal court, and it also restricts when a federal court can have an evidentiary hearing on a habeas claim, and it says that for a lot of federal habeas proceedings, the federal court is limited to looking at what is already in the state record.

0:28:42.5 Rhiannon: But like I said, for people who had ineffective assistance at trial and again at post-conviction, their claims haven't adequately been brought up until federal habeas. So the Martinez case gives that avenue for relief, it gives you that narrow avenue where if you had ineffective assistance at trial and you only had one shot at bringing it up in post-conviction and your lawyer there was ineffective too, Martinez the case says that you can bring the claim in federal court to show that ineffective assistance of counsel. But now Sotomayor is saying based on this case, you have two contradicting holdings, you have Martinez, which the court is not overturning here.

0:29:22.9 Rhiannon: Martinez just 10 years ago saying, you can bring the claim of ineffective assistance of counsel in federal habeas, but now this case saying, you can't show any evidence, a federal court can't have an evidentiary hearing on those claims, so it completely hollows out the premise of Martinez, which says that, Yes, you can bring a claim. And here on a technicality, Thomas is saying, Sure, you can bring a claim, but that doesn't mean that you can develop the evidence, you can't show a court any evidence of your claim.

0:29:56.6 Peter: Right. Unbelievable. [laughter] So fucking stupid.

0:29:56.6 Rhiannon: It's ridiculous.

0:29:58.4 Peter: Its just fucking stupid.

0:30:00.4 Rhiannon: It is so stupid.

0:30:00.4 Peter: This is what formalism gets you and...

0:30:02.9 Rhiannon: Yes.

0:30:05.5 Peter: Pretending that procedure is paramount, right?

0:30:09.1 Rhiannon: Yes.

0:30:09.6 Peter: A situation where you can bring your claim but you can't develop evidence. What's the fucking point of that?

0:30:13.8 Rhiannon: Exactly, exactly.

0:30:14.7 Peter: Aren't you allowed to take a step back and say, This is fucking pointless. This is stupid. Just overturn the case then, don't insult us.

0:30:22.0 Rhiannon: Exactly, and there's something too... I haven't fully developed this idea in my mind, so I'm not sure that I can fully articulate, but there's something too, like the way conservatives talk out of both sides of their mouth when they're talking about technicalities, like what AEDPA and this restrictive sort of infrastructure around federal habeas was supposed to do, supposedly in the conservative mindset is to take away technicalities like prisoners getting their sentences overturned based on technicalities and based on being able to go into federal court and bringing up new claims where you already had a bite at the apple in state court. Right? It's just all this nonsensical stuff. And then to turn around and on all of these on top of each other technicalities, like layers and layers of technicalities to say like, Oh yeah, bring your claim, but you can't develop evidence of it. Oh yeah, you do have this right in federal habeas, but actually you can't have a hearing on it where the federal court can actually listen to what you have to say. It's completely hypocritical, and just so stupid.

0:31:31.1 Peter: Yeah, this case weaves together procedural technicality and human brutality in a way that feels like genuinely dystopian. Habeas corpus rights are a complete maze. I think it's safe to say that it's one of the least accessible constitutional rights. Courts have spent decades throwing obstacles in the way of prisoners making constitutional challenges, you can see in the court's language here where they talk about infringing on state sovereignty and how costly it is, which again is just not language that they use when discussing other constitutional rights. The hoops you need to jump through to have your habeas rights recognized are unreal. In cases like this, you generally need to exhaust your appeals, exhaust your state post-conviction proceedings, and then you can file a habeas petition, that's just a very quick run down of what you need to do. And it's also a process that can span decades as it did here. And even after that, there's hurdles like this one, which limit the evidence that you're allowed to introduce. Habeas is so complex that the number of lawyers who can actually handle those claims and who have the expertise involved is like minimal, not only do you need expertise within federal habeas, but you generally would need to understand the state proceedings as well.

0:32:49.0 Rhiannon: Yeah.

0:32:49.5 Peter: And it should go without saying that not a lot of people do. And it should also go without saying that that's the point. The intent of cases like this is to make filing habeas claims a daisy chain of nearly impossible hurdles, and the irony, which I think Ree is like what you were pointing out, is that a lot of conservative Criminal Procedure jurisprudence is driven by a fear that criminals are getting off on technicality.

0:33:17.6 Rhiannon: Yes, yes.

0:33:17.7 Peter: In their crusade to make sure that that doesn't happen, they themselves have created a web of technicalities designed to keep prisoners in prison regardless of their guilt or innocence. It's like they've built a bizarro version of the world they fear. And it's probably worth pointing out when we're talking about how inaccessible habeas is, and this is something that Michael had mentioned to us. It's not in the Bill of Rights, it's in the original body of the constitution. Right?

0:33:50.1 Rhiannon: Yeah.

0:33:50.4 Peter: One of the few rights we've talked about on this podcast that's in the original Constitution itself. Article One, Section 9 clause two. It's right there, right up top. This isn't something that was in an amendment, and yet the court treats it like shit, like it's meaningless.

0:34:07.2 Rhiannon: Exactly. Where is your originalism? Where is your textual-ism? Because if you were reading this text seriously, you would treat it completely differently. Backing up a little bit to Sotomayor's dissent and calling out that based on the Martinez precedent, this case does not make any sense, you can't say on the one hand, that a prisoner has the right to bring a claim of ineffective assistance of counsel in federal habeas, but then on the other hand, in this case, say that the prisoner cannot bring evidence to develop that claim. I just wanted to point out that in the majority here, this case comes down 6 to 3 on partisan lines, but we have an interesting addition of information in that Martinez was just decided 10 years ago, that's a 2012 case, and Martinez gave prisoners this right to bring this ineffective assistance of council claim for the first time in federal habeas, if they had ineffective assistance at trial and ineffective assistance in post-conviction. So that's the ruling in Martinez and Thomas dissented from that, he dissented from Martinez and was joined or joined in dissent by Antonin Scalia.

0:35:26.1 Rhiannon: But Chief Justice Roberts and Alito were in the majority in Martinez. And so here they're with Thomas in the majority, that basically guts Martinez and it just sort of shows like how brazenly hypocritical they are, they're effectively overturning their own precedent here.

0:35:47.3 Peter: They're becoming polarized, just like the rest of the American public. Right? It's true. I often have this theory in these cases that Roberts prefers a six, three, it looks less controversial, it makes it look like there's less division at the court, and it seems like this is one of those things where he doesn't really care about it enough to fight one way or the other.

0:36:08.5 Rhiannon: I think that's right.

0:36:09.7 Peter: So he just sort of pops over to the conservatives. Yeah, let's make it look like we all agree, and that's that.

0:36:14.7 Rhiannon: I think that's right, yeah. When you think about it, if Roberts and Alito had both followed the logic of Martinez, the case in which they joined the majority, right, if they had followed the logic of that case and brought it into this case to say like, Yeah, of course you can bring evidence of your claim, you're allowed to bring the claim, so yeah, you can develop the evidence too, then this would have been a 5-4 decision with the Liberals winning, but they are just willing to completely change their minds and do this illogical bullshit all for partisan hack-ish-ness.

0:36:51.9 Peter: Yeah, in a lot of our criminal procedure cases, we will point out that sometimes justice requires defending people who did heinous things, or at least defending the idea that they deserve due process, that they deserve fairness. But this is the other side of that equation. This is what you risk when you forgo due process, right? There is a very, very good chance that Barry Jones did not commit this murder. When you put aside all of the procedural bullshit, all of the winding and intentionally complex habeas corpus jurisprudence, all he is asking for is a chance to show a court credible and readily available evidence of his innocence. That's not a procedural technicality, that is the essence of due process. If you treat it like it's a technicality, your legal framework is amoral. It is untethered from any real principle or purpose. If we cannot ensure that a man accused of murder ever gets to present a court with the evidence of his innocence, then we haven't even met the baseline of due process. That's what is so fundamentally fucked up about this case. What is the conservatives normative view of what criminal justice is?

0:38:12.0 Rhiannon: Yeah, exactly.

0:38:14.5 Peter: Is it really just a network of rules that are jammed together to the point where you have rules that say, Yeah, you can bring the claim, but you can't bring evidence. Is that how nonsensical our system of criminal justice is? If you believe that we should be trying to understand truth, trying to figure out what happened, so that we do not punish innocent people who did not commit the crime that they are accused of. Is it really a leap to say that we should be allowing this man to present a court with this evidence? This one feels so fundamentally fucked up because I don't know what purpose is being served other than pure brutality by the Conservatives position here. Other than the idea that rules and procedures in and of themselves are more valuable than human life. The whole point of criminal procedure is to find and ascertain truth and approximate justice. Right? And that doesn't mean that like mistakes won't be made, there's obviously no system where you don't have mistakes being made, there's probably no conceivable criminal justice system where an innocent person isn't punished from time to time. But when it's staring you in the face and you reject it, that is like a world view that I cannot comprehend.

0:39:46.1 Rhiannon: Right.

[music]

0:39:46.2 Peter: Alright, next week, [chuckle] we're gonna spend the rest of the summer doing all of the cases that are gonna be dropping in the next couple of weeks, you know.

0:40:04.6 Rhiannon: That's right.

0:40:05.9 Peter: You've got the gun rights case, you've got Kennedy the school prayer case, you've got Carson the religious school's case. What else is there? Oh, you've got West Virginia v. EPA, the end of the administrative state case. Nothing but horrors for days and days and days.

0:40:21.4 Rhiannon: And that's what you come here for.

0:40:23.8 Peter: That's how we'll be spending our summer. [laughter]

0:40:23.8 Peter: Follow us on Twitter @fivefourpod, subscribe to our Patreon, Patreon dot com slash five four pod, all spelled out, premium episodes, ad free episodes, access to our slack, a great place to find solidarity for people who hate the Supreme Court, you know.

[laughter]

0:40:46.0 Rhiannon: That's right.

0:40:48.3 Peter: I'll see you next week.

0:40:50.5 Speaker 2: 5-4 is presented by Prologue Projects. Rachel Ward is our producer, Leon Neyfakh and Andrew Parsons provide editorial support. Our production manager is Percia Verlin and our assistant producer is Arlene Arevalo. Our artwork is by Teddy Blanks, that CHIPS NY, and our theme song is by Spatial Relations.