Rarely do three words capture the problem so clearly, and Andrew Cohen nails it with the phrase “ineffective assistance squared” from his Atlantic Monthly post.  And as a result, Texas is trying to put Yokamon Hearn to death this Wednesday.

The problem isn’t that Hearn is an innocent man. He’s not. The problem is that it’s defendants like Hearn who are placed squarely in the position of testing whether the legitimacy of the machine of death is running the way courts say it must if a constitutional death penalty can exist.  And while the machine is moving along as fast as it can for Yokamon Hearn, courtesy of the mechanics at the 5th Circuit Court of Appeals who manage to keep the gears grinding despite having refused to read the instruction manual, it’s clear that the machine is horribly broken.

At the penalty stage of Hearn’s trial, the prosecution did a bang up job of showing everything bad about the man they could dredge up.  The defense, on the other hand, couldn’t be bothered.

Yokamon’s jury learned about violence, more violence, a history of burglaries, and, in sharp contrast, exceedingly superficial and inaccurate mitigation during his sentencing proceedings. Yokamon’s lawyers were the reason the jury learned almost nothing about his life. They failed to conduct a minimally adequate investigation into Yokamon’s life history when, had they done so, they would have uncovered a wealth of compelling mitigating evidence, including:

1) evidence that Yokamon’s parents were severely impaired throughout his life;

2) that he was the victim of neglect at the hands of his parents;

3) that relatives who were portrayed at trial as unflinchingly committed and capable of caring for Yokamon were not so;

4) that he had a history of mental health problems, including suicidal ideations, as a young child and that his emotional problems stemmed from his parents’ inability to parent him;

5) that he was exposed to risk factors commonly associated with brain damage;

6) that Yokamon, in fact, suffered from brain damage;

7) that he exhibited severe impairments in day-to-day functioning consistent with brain dysfunction. [Numbers added for reference]

Maybe they were sleepy. Maybe they didn’t care. Maybe they were just lazy or sucked. Regardless, a life was on the line, and the representation was so fundamentally deficient as to be a farce. Had the defense done its job and present evidence in mitigation, there was certainly strong reason to believe that at least one juror would have concluded that Hearn didn’t deserve the death penalty.

Of course, the remedy for such outrageously deficient representation at the trial stage is competent representation in post-trial proceedings.  And that’s where the “ineffective assistance squared” comes in. After all, if the defendant was provided an incompetent defense at trial, why should his defense counsel be any less incompetent later.  And so Hearn got double burned.

As alarms go off everywhere but Texas, the Supreme Court’s ruling in Martinez v. Ryan last March likely comes to mind.  “Ha,” you exclaim. “But that’s covered,” since the Supremes held that capital defendants like Hearn shouldn’t be denied substantive review of ineffective assistance claims because of, well, ineffective assistance. Using that rarest of traits in Washington, logic, Justice Kennedy’s opinion expanded the right of habeas review  so that the defendant who would have otherwise lost his opportunity for review of ineffective assistance is not procedurally barred because of ineffective assistance. Scalia, naturally, dissented, because somebody has to take one for the team.

Unfortunately, the jurisdiction of the United States Supreme Court ends right about the Texas border, where the 5th Circuit has decided that Martinez may be fine for the United States, but has no place in the Republic of Texas.

What the 5th Circuit did, in Ibarra v. Thaler, was to interpret Martinez so narrowly as to make its holding inapplicable in virtually any other case. Even though the justices in Washington had created an exception to “protect prisoners with a potentially legitimate claim of ineffective assistance of trial counsel,” the 5th Circuit said that Texas’ appellate procedures vitiated the need for such an exception. Take a few minutes to try to read the Ibarra decision. Look at how hard the 5th Circuit’s majority had to twist to avoid the Supreme Court’s precedent — and to avoid giving Hearn the relief to which he is entitled.

No doubt the fine folks who despise activist judges will be marching on the circuit any day now with torches and pitchforks in hand.  Any day now, as long as it’s after this Wednesday, when Hearn is scheduled to be executed.  Of course, Texas Governor Rick Perry can fix the problem, since he so dearly wants to clean up the mess in Texas before putting its defendants to death. It’s a shame he keeps figuring out there’s a problem too late.

Even ardent supporters of the death penalty, despite its cost, or the fact that it fails to serve as a deterrent, are concerned that it be done properly. Usually, that means that people, like Cameron Todd Willingham, aren’t mistakenly put to death in a rush to beat revelations of innocence. But it’s the guilty, like Yokamon Hearn, whose cases test the ability to determine whether the machine works the way it’s supposed. to. That includes effective assistance of counsel at each stage, and courts that don’t shut its doors to make sure they never hear about the machine breaking down.

Wednesday.  After that, the discussion is purely academic, and another dead body will be buried in the killing fields of Texas justice.

Update:  The Fifth Circuit unanimously /files/66432-58232/certpetition.pdf”>done and served. Response is due 9 a.m.  The TL:dr argument: Ibarra Got It Wrong.

Update 3: The United States Supreme Court denied the stay and petition for a writ of certiorari on Wednesday, July 18, 2012. Yokamon Hearn will die.

H/T Kamikaze Kase