Attorney General Mark Brnovich–who resumed executions last year with pentobarbital and his newly-refurbished gas chamber–hailed a US Supreme Court decision Monday greenlighting two men’s executions.

The men likely wouldn’t be on death row if they were allowed to present evidence in post-conviction proceedings that both men’s attorneys admitted they initially failed to mention.

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Justice Clarence Thomas wrote the 6-3 supermajority opinion in Shinn v. Martinez Ramirez that denied a retrial to Barry Lee Jones, who was sentenced to death for murdering a four-year-old Tucson girl; and to David Ramirez, who is back on death row for stabbing and murdering a Phoenix woman and her daughter.

Barry Lee Jones and David Ramirez

While Ramirez’s attorney mischaracterized him as “of normal intelligence”, he is retarded with an IQ in the ’70s. His congenital abnormality might have been a mitigating factor in the decision to end his life.

Howard Fischer of the Arizona Capitol Times. reports the details supporting Barry Lee Jones’ innocence:

“Jones was sharing his trailer on East Benson Highway near South Alvernon Way with his girlfriend, Angela Gray, his own daughter, and his girlfriend’s three children, ages 4, 11, and 14, according to court records.

“Early on the morning of May 2, 1994, Jones drove his girlfriend and the 4-year-old to a Tucson hospital where she was pronounced dead on arrival. The girl’s injuries included a scalp laceration and evidence of sexual assault.

“Jones, 36, at the time, was arrested the same day and charged with murder, sexual assault, and child abuse. A jury found him guilty of all charges.

“…. Jurors were told by an incompetent lawyer that the four-year-old was killed within a two-hour time span, making Jones eligible for capital punishment in Arizona.”

Physicians refuted this claim, saying the girl, Rachel, died of internal injuries that must have happened days before when Jones could not have been with her.

“…. The other defendant is David M. Ramirez.

“In 1989, Ramirez, who was out on parole, murdered Mary Gortarez and her 15-year-old daughter Candie Gortarez in their Phoenix apartment.

“Court records showed he stabbed Mary 15 times in the neck, back, stomach, and left eye, stabbing Candie 15 times in the neck. Neither died instantly.

“He also sexually assaulted Candie while she was close to death. Ramirez, the only person left in the apartment, was arrested at the scene, and convicted of both murders,” Fischer concludes.

 Robert Loeb, representing both defendants, said Monday’s ruling “leaves the fundamental constitutional right to trial counsel with no effective mechanism for enforcement in these circumstances.”

Sixth Amendment v. Federal Antiterrorism and Effective Death Penalty Act.

Scotus News’ Noam Biale writes that the question in Shinn v. Ramirez and Jones was whether state prisoners challenging their convictions and sentences in federal court could develop evidence … to support claims that their state trial lawyers were ineffective to such a degree that the prisoners’ Sixth Amendment right to counsel was compromised.

“The case pits the Federal Antiterrorism and Effective Death Penalty Act against the Sixth Amendment right to effective counsel,” Biale writes.

“The Anti-Terrorism and Effective Death Penalty Act of 1996, which generally prohibits federal courts from holding an evidentiary hearing on these kinds of claims if the prisoner ”has failed to develop the factual basis of a claim in the State court proceedings, against a 2012 Supreme Court decision, Martinez v. Ryan, which held that prisoners can raise a claim of ineffective assistance of counsel for the first time in federal court.”

“David Martinez Ramirez and Barry Lee Jones, both of whom were sentenced to death in Arizona, argued the rigid application of the statue would lead to the absurd result of prisoners being able to raise a claim, but not to develop any evidence to support it, undermining the rationale of Martinez,” Biale concludes.

Justices Opine

Thomas said the federal Antiterrorism and Effective Death Penalty Act limits such review to narrow circumstances.

“Permitting federal fact-finding would encourage yet more federal litigation of defaulted claims.”

Thomas stated a prisoner must show that further discovery by a federal court would demonstrate, by clear and convincing evidence, that the prisoner is not guilty of the crime.

Barry Lee Jones’ case clearly meets this criterion.

Thomas soullessly wrote that allowing “relitigation undermines the finality that is essential to both the retributive and deterrent function of criminal law

Justice Sonya Sotomayor wrote in her dissent for the three liberal justices that the Sixth Amendment guarantees criminal defendants the right to effective assistance of counsel.

“Today, however, the court hamstrings the federal courts’ authority to safeguard that role.”

Leah Litman, assistant professor at the University of Michigan Law School, writes in Slate:

“The consequences of Martinez Ramirez will be disastrous for anyone relying on their constitutional right to effective counsel. And, like the Dobbs leak, today’s decision also makes clear that the court’s conservative supermajority is hellbent on smashing and grabbing precedent and constitutional rights no matter the consequences.”

“Just as there is an indigent defense crisis in this country, there is also a post-conviction crisis. Post-conviction proceedings are woefully underfunded, and lawyers are limited in the time and resources they must pursue post-conviction relief.

“So, defendants who are represented by ineffective lawyers at trial may then be represented by an ineffective lawyer during their post-conviction proceedings, when they are supposed to be arguing that their trial lawyer was ineffective.

And—surprise—the ineffective post-conviction lawyer may fail to argue that the trial lawyer was ineffective or may fail to develop any evidence in support of that claim.

“…. As Justice Sonia Sotomayor wrote in a dissent for the three Democratic appointees, the court’s decision “makes illusory the protections of the 6th Amendment.”

“Sotomayor’s dissent accurately described the court’s decision as ‘perverse’ and ‘illogical,’ arguing that ‘it makes no sense to excuse a habeas petitioner’s counsel’s failure to raise a claim altogether because of ineffective assistance in post-conviction proceedings” but to ‘fault the same petitioner for that postconviction counsel’s failure to develop evidence in support of the trial-ineffectiveness claim.

“Rather, Sotomayor continues, the defendants ‘are not at fault for their state postconviction counsel’s failure to develop evidence. [They] acted diligently, but their attorneys’ errors, paired with the State’s choice of how to structure their review proceedings, constituted external impediments.”

“Simply put, the defendants haven’t failed to develop the factual basis of their claims. And the Antiterrorism and Effective Death Penalty Act, she continues, accordingly doesn’t prevent them from introducing new evidence in federal court when properly interpreted.

“….In this case, for example, four federal judges on two different courts concluded there was a reasonable probability that Barry Jones did not commit the crime for which he was sentenced to death after a trial where the state denied him his Sixth Amendment right to the effective assistance of counsel. Today, the Supreme Court essentially told the state that it can go ahead and execute him anyway,” Litman concludes.

Kris Mayes Would Suspend the Death Penalty

Since Arizona reinstated the death penalty last year, John Dixon has been executed, although he’s blind and disabled; and the Arizona Supreme Court denied clemency this week to convicted pedophile, Frank Atwood, who maintains his innocence.

Kris Mayes, the Democratic Candidate for Attorney General, told a Democrats of Greater Tucson Meeting that “the first thing I would do is I would put a pause on all executions and understand what is happening, both inside the Department of Corrections and inside the attorney general’s office.”

 

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