Writing for the majority of six in Shinn v. Ramirez, Justice Clarence Thomas echoed a position expressed by Justice Antonin Scalia and Chief Justice William Rehnquist before him. Innocence is not a reason not to execute a human being.
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.
In Shinn, the issue was what to do about the “double whammy” of ineffective assistance of counsel both at the trial level and at the post-conviction challenge to ineffective assistance of counsel. To add insult to injury, what if the defendant at issue didn’t get to pick his poison, but was given a lawyer by the court, and the lawyer turned out to suck? What if he was then given another lawyer, and that lawyer sucked too, so that the second lawyer, whose job it was to overcome the failure of the first lawyer, blew it.
But from a sufficient distance, it might appear that the defendant was given all the procedural due process the law requires. He had a lawyer. He had a trial. He lost. He had another lawyer. He had the chance to challenge the competence of his first lawyer. He lost. This can’t go on forever, right? At some point, it has to be recognized that he was given the chance and, well, lost. It happens.
The government’s interest is in finality, which is ironic in capital cases since the most final thing possible, the execution of a human being, is at risk. The state argues that it shouldn’t be forced to “retry” the case over and over, and over, each time the defendant comes up with some new argument or “fact” or theory. Notably, the fact that a defendant was represented by a crappy lawyer, which is hardly unusual in assigned cases, doesn’t mean the defendant didn’t do the crime, but that he was not given his constitutional right to an effective defense. Just because a death row defendant was represented by a careless incompetent hack does not make him “actually innocent.”
But what if he is “actually innocent”?
Justice Thomas rejected the district court providing the defendant with the mechanism to vindicate the argument of actual innocence, the defendant having made a showing that there was actual evidence to support this argument atop the showing that the trial lawyer failed, and then the post-trial lawyer failed again, because the evidence of actual innocence is there. Where does this defendant go to put this before a court, to seek redress?
Justice Thomas shrugged, as did five other justices.
On the one hand, this is a reversal of the trend following enactment of the Antiterrorism and Effective Death Penalty Act of 1996, limiting federal habeas availability to move executions along.
In a pair of decisions about a decade ago — Martinez v. Ryan in 2012 and Trevino v. Thaler in 2013 — the Supreme Court allowed some federal challenges to state convictions to proceed where lawyers in the state courts had been ineffective at trial and in post-conviction challenges.
Justice Thomas wrote that those decisions did not contemplate elaborate hearings in federal court to consider new evidence.
Thomas goes on the describe the “elaborateness” of the hearings, seven days, ten witnesses, etc. Would five days have been the right degree of elaborateness? Would six witnesses have been okay? The extent of “elaborateness” is a function of what’s needed and what’s available. Most cases won’t have ten witnesses, but if you do, then ten witnesses is what it is. It’s no more or less elaborate than necessary.
But the point of all this, beyond the failure of defense lawyers to defend and justices to justice, is that the right at stake is life. We’re not dicking around here with emanations and penumbras, slipping and sliding down vague hills. This is life, and there is no right more fundamental to our existence. Whether the government should have the authority to take it away at all is one argument, but whether they should be able to do so when the human being to be executed is innocent is another matter.
Innocence is a line that no court, no justice, no government should be able to cross.
Justice Scalia noted back when, there is no rule of constitutional law that says innocence is different. But there’s no rule of constitutional law that says innocence shouldn’t be different, and a majority of the Supreme Court, before it went dark, recognized that innocence was different.
Whether a defendant loses the lawyer lottery and gets some hack to defend him, and then another hack to review the first hack, is a massive failing on the part of the legal system, one of a great many that can end up with a defendant on death row when he shouldn’t be. But when that defendant, whom the state really wants to kill, may be innocent of the crime, there is no interest more important than not murdering an innocent person.
Over the years, the Supreme Court has found a wealth of rights unenumerated in the Constitution, but flowing from the words written there. Of all the rights, life should be pre-eminent, and there is no interest more important than the life of an innocent person. There is procedural interest more critical than allowing a person who can make a showing of actual innocence the opportunity to make his case. And there is nothing so special about a federal courtroom that an “elaborate” hearing would sully.