Does Proof Matter at the Supreme Court?

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Speaker 1: Heads up. On today’s show, we talk about the details of a murder investigation. Take care of yourself while listening. Leah Litman has known Barry Jones name for five years now. She first heard about him from a story that ran over at The Intercept. This investigative piece with a bleak takeaway.

Speaker 2: About how Arizona was trying to execute an innocent man whose conviction rested on faulty evidence that had been revealed to be faulty.

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Speaker 1: Barry Jones, is this man, a man on death row convicted of killing his girlfriend’s daughter, a preschooler named Rachel, back in 1994.

Speaker 2: When the investigator did the autopsy, they concluded she died because of blunt force trauma to her stomach that had caused a portion of her intestines to burst and that that had caused her death.

Speaker 1: It sounds so brutal.

Speaker 2: It was.

Speaker 1: When did it become clear that maybe something had gone wrong with this case?

Speaker 2: So I think the unfortunate reality is that at various points, an observer looking in, seeing what was happening would have realized something is going horribly wrong and it just kept getting worse and worse.

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Speaker 1: First, Jones lawyers failed to fully investigate the crime, and then they failed to call in medical experts. After he got convicted, Barry Jones appealed. He said his lawyers hadn’t done their jobs. He started out in state courts. Then he went to the federal. That got him new representation. And this attorney set about correcting the record.

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Speaker 2: They contacted actual medical experts and. Just without exception. Every single one of the experts that they contacted said it would be physically impossible for Rachel’s injury, the injury that caused her death to have been inflicted according to the state’s timeline.

Speaker 1: This is when Leah started following Barry Jones story in earnest. She’s a law professor at the University of Michigan. She specializes in constitutional law and federal courts. To her, a case like his had an obvious remedy. And a federal judge agreed, vacating Barry Jones conviction. After examining all the new evidence. But then the state appealed, taking this case all the way to the Supreme Court, which is where in the last month Barry Jones case has taken a shocking turn.

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Speaker 3: Good evening, Newt. Tonight. Has the U.S. Supreme Court condemned an Arizona man to die despite evidence that his lawyers bungled his defense?

Speaker 1: The court ruled that federal judges simply can’t hear the evidence in a case like this one, even if the person behind bars may not be guilty.

Speaker 3: Today’s ruling means that retrial won’t happen. The U.S. Supreme Court decided that under a 1996 law, Jones challenge to his conviction shouldn’t have been allowed.

Speaker 1: So are you saying that a probable outcome here is that Barry Jones, who may very well be innocent, remains in prison and is possibly sent to death?

Speaker 2: Yes. I mean, the United States Supreme Court has made it impossible, has made it illegal for federal courts to do anything about Barry Jones unconstitutional conviction and the voluminous evidence of his innocence.

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Speaker 1: Today on the show, how Barry Jones day in court could impact prisoners around the country, people who may very well be innocent but could be stuck in prison anyway. I’m Mary Harris. You’re listening to What Next? Stick around.

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Speaker 1: When Leah Litman wrote about Barry Jones case for Slate, she didn’t mince words. She said the Supreme Court had just gutted a constitutional right, which was interesting because I hadn’t seen a lot of outrage over what was happening here. So I asked Lia to start off by explaining what exactly was at stake in this case for Barry Jones, but also for the rest of us.

Speaker 2: So the right that’s being gutted is the right to effective counsel at your trial if you can’t afford one. That’s the underlying right that the Supreme Court has made it impossible to enforce and has said basically the state can go ahead and convict and sentence Barry Jones, even though that right of his was quite likely violated.

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Speaker 1: This right was violated because Barry Jones was relying on the state of Arizona to provide an attorney for him. And when those lawyers fell down on the job, he had one recourse, a federal appeal.

Speaker 2: You know, the Sixth Amendment to the Constitution guarantees people the ability to be appointed lawyers if they can’t afford one, and the ability to be appointed lawyers who are effective, lawyers who perform above, you know, an objective standard of reasonableness and competence and don’t prejudice you don’t affect the outcome of your proceedings through their poor performance. Now, look, the reality is, is that indigent defense, you know, the defense of persons who lack the resources to hire their own attorneys is not in a great state in this country.

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Speaker 1: Leah says court appointed lawyers are often ineffective. Funding for them is abysmal and public defenders of hundreds of cases on their desks each year. For someone like Barry Jones, though, who is sentenced to death, the stakes are especially high.

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Speaker 2: In some cases, in some areas, states are not enforcing minimum standards of competence, nor are there cultures or expectations that lawyers can and will look into or gather experts, including in capital cases.

Speaker 2: So, yes, what I am describing is a disaster, because it wasn’t just that Arizona appointed lawyers to represent Barry Jones, who didn’t have the resources to actually conduct an investigation into his case.

Speaker 2: It’s that as Barry Jones case proceeded throughout Arizona’s criminal legal system, he is then appointed other attorneys who also don’t look into his case, don’t apply for the necessary funding to look into his case, and lawyers who don’t meet the minimum qualifications that the state has established for representing people who are sentenced to death.

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Speaker 1: I want to lay out the basis for this decision from the Supreme Court. And to do that, I think it’s important that we go back, because the whole reason the Supreme Court was able to make this ruling is because of what the Marshall Project called the most important law you’ve never heard of. It’s known commonly as NPR. Could you explain what this law is and what it does?

Speaker 2: Yes. Ed refers to the Antiterrorism and Effective Death Penalty Act of 1996. It was passed in the wake of the Oklahoma City bombing, and it enacted a bunch of restrictions on the availability of post-conviction review or writ of habeas corpus for people who are convicted in state court or who are convicted in federal court. And so it’s that body of law, that statute that the Supreme Court was interpreting in Barry Jones case.

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Speaker 1: When President Clinton signed the Antiterrorism and Effective Death Penalty Act. He sold it as a bipartisan success. And it was a bill that was incredibly broad and remarkably tough on crime.

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Speaker 3: This is a good day because our police officers are now going to be better prepared to stop terrorists. Our prosecutors better prepared to punish them. Our people being better protected from their designs.

Speaker 1: One of this bill’s most controversial elements involved habeas corpus. The right to have a federal judge review your conviction as unconstitutional at best ought to make that process intentionally difficult.

Speaker 3: From now on, criminals sentenced to death for their vicious crimes will no longer be able to use endless appeals to delay their sentences. And families of victims will no longer have to endure years of anguish and suffering.

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Speaker 1: The original idea. It doesn’t sound bad necessarily. Like I feel like when I look at what Edgar Poe was set up to do, it was set up to make the process more efficient maybe for the courts.

Speaker 2: I think the reality is, is that Edgar Poe was kind of jammed through in response to a real tragedy, the Oklahoma City bombing. But no one took enough care or took enough caution to actually look at all of the restrictions that were part of ed power and to ask, like, are all of these restrictions necessary to accomplishing a fair, efficient system or are they going to create more complexity and more problems? You know, in other cases.

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Speaker 1: In the past, the Supreme Court has not done what it did this time around, which is foreclose the opportunity for people to go to the federal courts and seek some kind of relief there. What is the Supreme Court said in the past and how is it different from what the court is saying now?

Speaker 2: So one body of cases had said, because it’s not your fault when the state appoints you multiple ineffective lawyers who fail to raise the claim that your trial counsel was ineffective, you can, when you get to federal court, have a federal court, hear your claim that your trial counsel was ineffective. So that’s one kind of body of case law that the court departed from.

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Speaker 1: So it gives you like a narrow pathway there exactly.

Speaker 2: When there are multiple serious compound errors in the state proceedings that led to your conviction. Then you have a narrow path in federal court to getting a federal court to hear your constitutional claim.

Speaker 1: But now that narrow pathway seems to be closing. In Barry Jones case, he had argued because my state lawyers were ineffective, I should be able to bring in all kinds of new evidence gathered by my federal attorneys, like that testimony from doctors saying it would have been impossible for him to have killed four year old Rachel. The court ruled otherwise. They said even if state lawyers didn’t do their jobs here, Jones can’t submit new evidence proving his case. Conservative justices have been signaling a move in this direction for years. Back in 1993, Justice Antonin Scalia argued that even if a prisoner was actually innocent, a state could still execute them. At the time, only one other justice agreed with them Clarence Thomas. And it is Clarence Thomas who wrote this term’s decision about Barry Jones.

Speaker 2: I think it’s a pretty sharp turn that really does up. And the prior cases that had recognized it’s actually a very serious problem when the state appoints you multiple ineffective attorneys. And I also think that with the new Trump appointed justices. This particular ruling did not come out of left field. You know, I think people familiar with this area of law understood that Justice Gorsuch is a point man and then Justice Kavanaugh’s and Justice, as were likely to lead to even more restrictive views on when you can challenge unconstitutional convictions in federal court. But this case was still, I think, a complete gut punch, in part because, you know, it involves someone who is quite likely innocent and has still been sentenced to death.

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Speaker 1: I don’t feel like I see a huge amount of outrage from people about this case. It seems a little bit under the radar. Why do you think that is?

Speaker 2: The decision that the Supreme Court reached in this case concerns a highly technical matter. You know, the availability of habeas corpus, a remedy rather than the underlying right to counsel. And frankly, I think those kinds of decisions end up receiving less press coverage. People’s eyes glaze over their ears to now when people start describing, you know, the procedural morass and intricacies of this area of law. But the consequences of the decision are profound and unmistakable.

Speaker 1: Is this kind of also how the Supreme Court is working now, where there are these very technical decisions with actually great import, but the narrative is maybe a little bit messy and so we’re not hearing about them as much.

Speaker 2: I think that is definitely the case and it has been the case for a while.

Speaker 1: Back after a quick break.

Speaker 1: I was thinking about the law that the Supreme Court strengthened here as per the Antiterrorism and Effective Death Penalty Act. And the first thing that stood out to me was that it seems like this law. It’s misnamed. It’s supposed to be about terrorism. But this these cases, it’s not terrorism. It’s just whether you can get into federal court. And then it also stood out to me that it was supposed to make the death penalty more effective or more efficient. But I wondered if that had actually happened with this law. Like, did it actually reach its goals?

Speaker 2: I think that’s part of what I was alluding to when I suggested that, you know, Alpo was passed in response to a tragedy, but it was passed without any care or caution or attention to whether it actually served its ostensible purposes. I think Apple makes the death penalty and post-conviction review much less efficient because all of these procedural restrictions are frankly so complicated and convoluted and conflicting that federal courts now have to spend all of this time figuring them out rather than actually sorting through the underlying constitutional claims in these cases.

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Speaker 1: Yeah, it’s trying to fix something real, but in a sort of backwards way. Like if the problem is too many people are appealing their convictions and clogging up the courts and we want to make this more efficient move faster. You know, is the solution there? Let’s make it harder or even impossible to appeal or maybe look at the root cause of that clogged up system. And it just seems like that second option of looking at the root causes that was never considered.

Speaker 2: Yeah, I think that that’s exactly right. I mean, if there are too many people in the federal court system appealing their convictions, maybe there are just too many people in the criminal legal system. And that should be the focus of any statute that is thinking about there being too many people in the federal court system.

Speaker 1: Do we have any indication of like how many Innocence Project clients are now out of luck? Essentially, like they can’t appeal in the way that they might have.

Speaker 2: It’s a little bit difficult to know, in part because, you know, you don’t know who’s innocent until you actually have people looking into their cases. You know, the Innocence Project has found that one of the leading causes of innocent convictions is ineffective assistance of counsel. So it’s likely that by shutting off this avenue to relief and undermining this constitutional right, you know, the court has condemned more innocent people to imprisonment and possibly death. But it’s really difficult to know how many cases that is and who exactly that is.

Speaker 1: Yeah, I mean, the decision from the Supreme Court, it kind of reminds me of the early days of COVID management under President Trump, where there was that idea that, you know, if you don’t count the cases right. Of people see them. Yeah. And then like this is similar where I think if we just don’t consider the innocence claims, like maybe they don’t exist and you know, when fixing it would be complicated, you need to resource state level lawyers who are helping people and make sure they can gather the evidence they need. But it would also be more just and you’d actually see the whole scope of the problem. I worried a little bit that, like the Supreme Court justices just kind of wanted to make things look pretty at their level, basically.

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Speaker 2: I mean, maybe that’s it. Maybe if they never actually look to see whether state appointed attorneys are ineffective, they don’t have to acknowledge that states are appointing ineffective lawyers in death penalty cases. But that is just an appalling, you know, see no evil, hear no evil approach to constitutional rights.

Speaker 1: Yeah. What’s the most charitable interpretation of what the Supreme Court is doing here? Because there must be a logic to why you would privilege the state over the defendant, the indigent client here. What’s their reasoning?

Speaker 2: I mean, the most charitable interpretation is the statute restricts habeas for indigent defendants, doesn’t restrict it for states.

Speaker 1: So just following the law here.

Speaker 2: Right, just following the law. But I don’t think that is a complete explanation, because I think that, like, if it’s your discretion, it’s your discretion. You have a choice.

Speaker 1: Right.

Speaker 1: I wonder if we can turn back to Barry Jones before we get off the line here. Do we know anything about what happens with his case now where there’s been all this evidence gathered? A judge has said we should vacate this conviction. But it seems like the Supreme Court has basically said, sorry, the path doesn’t exist. That evidence doesn’t count.

Speaker 2: I mean, part of what is so I think horrifying about this case is that this evidence is out there now. We know now that Barry Jones conviction rests on a theory that does not reflect reality. We know there is a reasonable probability that he is innocent of the crime for which he has been sentenced to death. And now the Supreme Court has said, yes, but you just have to ignore all of that.

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Speaker 1: Could a new prosecutor step in and and release Barry Jones like given everything that’s happened here?

Speaker 2: So there are conviction integrity units and processes in state and local prosecutors offices. I know that the county in which Barry Jones was prosecuted has one such conviction integrity unit that is ostensibly supposed to review convictions. I am hoping very much that they will look into and acknowledge the serious errors in his case. But now the Supreme Court has basically said the federal courts can’t require you to do so.

Speaker 1: Leah Litman. I’m really grateful for your time. Thanks for taking the time to explain this case to me.

Speaker 2: Thanks so much for having me.

Speaker 1: Leah Litman is an assistant professor of law at the University of Michigan. She also hosts the podcast Strict Scrutiny Over Crooked Media. Go check it out. All right. That’s the show. What next is produced by Elaina Schwartz and Mary Wilson and Carmel Delshad. We are getting a ton of support these days from Sam Kim and Anna Rubanova. We are led by Joanne Levine and Alicia montgomery. And I’m Mary Harris. You can go say hello on Twitter. I’m at Mary’s desk. Thanks for listening. Tomorrow, Mary Curtis will be here filling in for me. Thank you, Mary. I will be back in the feed a little later in the week.