This piece is the sixth in a series on defects in our criminal justice system that lead to wrongful convictions. The first piece introduces these seven critical breakdowns in the rules of constitutional criminal procedure, the second examines the problem of eyewitness misidentification, the third shows how the Supreme Court is perpetuating the problem of false confessions, the fourth examines prosecutorial misconduct and the fifth looks at overly favorable treatment for prosecutors.
“Innocent until proven guilty” is a far more complicated concept than we often realize. Whether a defendant is judged to be guilty or innocent depends on a much wider range of factors than simply the facts of the case. And one of those factors is the quality of the defendant’s attorney. After all, it’s by no means a guarantee that an innocent person will be exonerated if they don’t have the skillful defense needed to win their case.
In the overwhelming majority of serious felony cases, the right to counsel, guaranteed by the Sixth Amendment, is frequently a dead letter. Most defendants are poor and therefore have no choice but to accept the counsel assigned to them, the majority of whom are overworked, underpaid, understaffed, hurried and forced to rely on evidence discovered, controlled and already contextualized into the prosecutor’s theory of the crime. The problem is especially acute in death penalty cases, where the stakes are higher and the procedural rules more complex. These higher hurdles shrink the pool of qualified lawyers.
But while the Supreme Court in the 20th century recognized all defendants’ need for strong representation, it’s unfortunately backtracked in the 21st century. That’s a marked step in the wrong direction if we care about the fairness of our criminal justice system.
Two Good Precedents
Two landmark 20th-century Supreme Court cases, Powell v. Alabama (1932) and Gideon v. Wainwright (1963), dramatically changed our criminal justice system for the better. Both cases involved factually innocent felony defendants who were nonetheless convicted because they couldn’t afford competent attorneys. By reversing their convictions and ruling that the Constitution guaranteed them better representation, the Supreme Court paved the way toward fairer trials and fewer miscarriages of justice.
It’s hard to imagine defendants in greater need of a good lawyer than Ozie Powell and his co-defendants—poor teenage Black kids who were charged with gang raping two white women in rural Alabama in 1931. Lynch mobs formed during their arrest and their visits to the courthouse, posing a constant threat to the proceedings. The National Guard was even called in to protect the accused as they awaited trial.
The judge understood that in the Jim Crow South, convictions in cases like this one were a foregone conclusion, so he sought to expedite the process. He appointed a 69-year-old named Milo Moody, long out of practice, to represent the defendants, with an out-of-state real estate lawyer, Stephen Roddy, who arrived at trial drunk and was unfamiliar with Alabama procedure, to assist him. The judge put Moody and Roddy under impossible constraints: They were given virtually no time to meet with their clients, let alone prepare their defenses. The nine defendants were divided into groups, and three trials were held—the first of which commenced just 12 days after their arrests. Ozie Powell’s sham trial started and finished the same day. Along with seven of the other defendants, he was sent to the electric chair (only Roy Wright, just 12 years old when arrested, was spared that fate).
Powell was the first case in which the Supreme Court overturned a state criminal court conviction because the state had violated the defendant’s constitutional right to counsel. It marked the beginning of federal court supervision of state death penalty procedures by ruling, at long last and unequivocally, that in capital cases each state’s criminal justice system was subject to the rights guaranteed by the U.S. Constitution. Justice George Sutherland wrote for the majority of the court that due process requires the “right to be heard” and that, to meet that requirement in capital cases, the defendant must have the “guiding hand of counsel at every step in the proceedings.” The court made it clear that one of the primary evils it was trying to prevent was wrongful convictions: “Without [counsel], though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence.”
That is precisely what happened to Ozie Powell and his co-defendants. After a lengthy series of trials, re-trials and plea bargains tainted by racism and a sensational atmosphere, all nine of the defendants—known as the “Scottsboro Boys”—were eventually pardoned. One of the alleged rape victims eventually testified that her original accusation was false and the defendants had never harmed her. The state’s medical expert, who examined the alleged victims and originally testified without cross-examination, was discredited when questioned by competent counsel during subsequent proceedings. Looking back, Powell and his co-defendants’ innocence is obvious. It was Alabama’s criminal justice system that was guilty.
Gideon v. Wainwright, decided 31 years after Powell, extended the constitutional right to counsel to all felony defendants. Clarence Earl Gideon was charged with breaking and entering a Florida pool room with the intent to commit a robbery. The state’s evidence against him was weak, yet convicting him was easy. He was poor, uneducated and had no lawyer, and, furthermore, the trial judge refused his request for representation. After doing his best to defend himself at trial against impossible odds, Gideon was convicted and sentenced to five years in prison.
Writing in pencil on lined paper from prison, Gideon urged the Supreme Court to review his case, reverse his conviction and reinterpret the Constitution so that going forward similarly situated defendants would be guaranteed a lawyer at trial. The court agreed to hear his case and assigned him a superstar attorney, future Supreme Court Justice Abe Fortas. From the moment Gideon was represented by able counsel, he did nothing but win in the courtroom.
Writing for a majority of the court, Justice Hugo Black, a U.S. Senator from Alabama during the Scottsboro Boys saga, explained that trials are fundamentally unfair when defendants are deprived of legal counsel. “The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours,” he wrote. The practice of criminal law is complex. Often even intelligent, educated laymen making their best effort won’t spot such things as errors in an indictment or violations of the rules of evidence. They simply stand no chance against the state, which has an almost unlimited amount of investigative and adjudicatory expertise and resources at its disposal. To perform their truth-seeking function, trials require roughly comparable adversaries capable of meaningfully testing each other’s evidence. In this case, Florida had the collective skill and knowledge of the prosecutorial bar and the entire treasury to draw from, but Gideon had only his will to remain free.
The court made clear that without a robust right to counsel, an intolerable number of innocents would be falsely condemned. It quoted Justice Sutherland’s warning about wrongful convictions in Powell and reversed Gideon’s conviction.
The Tide Starts To Turn
But with the arrival of the tough-on-crime era, starting in the 1970s, politicians exploded the blueprint for fair trials we inherited from the common law and the Framers who designed the Bill of Rights. The war on drugs, overcriminalization, zealous law enforcement and tougher sentencing laws caused America’s prison population to skyrocket from about 329,000 in 1980 to more than 1.2 million in 2021.
In 98% of federal criminal cases, the defendant, almost always on the advice of counsel, forfeits his constitutional trial rights and agrees to plead guilty. The percentage is nearly as high, 97%, when adding state and federal cases together. The tough-on-crime political objectives of the past 50 years have overrun the system with cases and turned core constitutional guarantees like the right to a speedy and public trial into “parchment rights”—beautiful ideas in theory yet all but dead in practice.
The Powell and Gideon courts never could’ve foreseen how exponentially the public’s appetite for state punishment would grow or how the role of the criminal defense attorney would change from litigator to hapless dealmaker. Criminal cases pit the state and its vast resources against the defense and its more limited resources. It usually isn’t particularly hard for most highly trained, experienced and well-funded prosecutors convinced of the defendant’s guilt to make those who are innocent appear guilty. To take advantage of their strong negotiating position during plea bargaining, prosecutors often overcharge defendants with long lists of crimes carrying interminable sentences. At this point, the defendant’s chances of exoneration are only as strong as the skill, savvy, strategic decision-making, legal knowledge and determination of his defense attorney. However, as with most consumer services, criminal defendants, the vast majority of whom are moneyless, usually get what they pay for. Their defense attorneys spend little, if any, time outside of court getting to know their clients or investigating their cases. While there are many exceptional public defenders, most generally presume their clients to be guilty and seek to dispense with their cases quickly by negotiating guilty pleas.
James Madison and the others who crafted the criminal procedure provisions in our Bill of Rights were sons of the Enlightenment and sought to implement and expand the twin Enlightenment goals of fairness and truth-seeking by ensuring that those accused of crimes were actually given trials where adversaries battled over whether the evidence prosecutors presented was strong enough to prove guilt. To the extent that Madison’s vision still exists, it’s mostly as a ghost of what should have been and, hopefully, might one day be.
The Supreme Court Goes Astray
While Powell and Gideon set positive precedents for the rights of defendants in our criminal justice system, the Supreme Court has taken a major step to betray the legacy of those cases and stall the progress of those decisions. Just last year, the court’s ruling in Shinn v. Ramirez and Jones, sent an almost certainly innocent inmate back to death row to be executed.
That inmate, Barry Jones, was charged with unspeakable crimes. The state claimed that, while babysitting his girlfriend’s four-year-old daughter, he raped the young girl, causing internal injuries that killed her over an agonizing final 12 hours. Although Jones was convicted by a jury in an Arizona state court, he subsequently used evidence discovered years later by competent new attorneys to prove to multiple federal court judges that both his trial and post-conviction lawyers were negligent, uninterested in defending him and, for those reasons, failed to discover evidence that would’ve convinced the jury of his innocence.
But the majority of the Supreme Court’s justices were unimpressed. The court ruled against him despite having been given a compelling “friend of the court” brief by the Innocence Network, a consortium of organizations dedicated to freeing wrongfully convicted inmates. The brief explained that bad lawyering is one of the leading causes of wrongful convictions and that a ruling against Jones and David Martinez Ramirez, another Arizona inmate claiming to have been appointed inept lawyers in violation of the Constitution, would make their urgent work to stand up for the wrongfully convicted much more difficult. To drive home the point, the brief contained a series of disturbing vignettes describing cases of innocent inmates who’d languished in prison for years due to their original lawyers’ incompetence and were only freed because they’d been lucky enough to eventually find both committed attorneys and judges open to hearing the evidence of their prior attorneys’ failures.
If the court read the Innocence Network’s brief at all, it was unpersuaded by it. Instead, the prosecutor’s argument that “innocence is not enough” to open the federal courthouse door to claims of ineffective lawyering, even in capital cases, won the day.
The Sixth Amendment Competency Standard
Since Powell, the court has made it clear that the Sixth Amendment right to counsel can’t be satisfied if the attorney given to a defendant is incompetent. However, the rule has existed more in theory than in practice. The court announced the current constitutional standard for competency in the 1984 case of Strickland v. Washington. To win, the court ruled in Strickland, a defendant must show that, using “prevailing professional norms,” his attorney’s performance “fell below an objective standard of reasonableness” and that, as a result, there is a “reasonable probability” the jury reached the wrong conclusion. The requirement, which focuses on the reliability of the jury’s guilty verdict, clearly evinced the same concern for wrongful convictions shown in Powell and Gideon.
Barry Jones’ trial counsel was plainly incompetent under this standard. He neither investigated the facts of Jones’ case nor pressed his legal rights. Jones was doubly wronged when the post-conviction counsel he was appointed repeated many of the same mistakes and proved himself incompetent by failing to make the obvious case that Jones had been the victim of his predecessor’s bad lawyering. As Innocence Project Executive Director Christina Swarns wrote in The New York Times, “Mr. Jones lost the lawyer lottery twice.” Having not been assigned a skilled lawyer willing to fight on his behalf at either stage of his case, Jones, his likely innocence notwithstanding, never had a chance.
As with Clarence Earl Gideon, Jones’ luck began to change when a good lawyer finally took up his case. In her book-length series of articles on the case for The Intercept, journalist Liliana Segura chronicles the years-long effort Jones’ current lawyer, Assistant Arizona Federal Public Defender Cary Sandman, undertook to unearth the evidence of innocence Jones’ previous lawyers should have found.
Death row inmates routinely seek review of their state court convictions in federal habeas corpus hearings. Jones was no exception. Federal district court judge Timothy Burgess took Jones’ claims of ineffective assistance of counsel seriously. He held a week-long hearing in which Jones presented evidence showing that, as Segura’s article puts it, his conviction had been based on “shoddy police work, junk forensics, and a flawed defense.” Jones further showed that because his lawyers failed to investigate his claims of innocence, the jury never learned of three plausible alternative suspects, including the victim’s mother, who was acquitted of the murder but sentenced to eight years in prison for child abuse in a previous trial. Jones also called expert medical witnesses who explained that the victim could not have suffered her fatal injuries during the time period in which she was alone with Jones, exploding the prosecutors’ theory of the case.
While Jones’ new lawyers hadn’t altogether proved him innocent, Judge Burgess found that Jones had shown that his previous lawyers failed to meet the Strickland standard. He ordered the state to either set Jones free or retry him within 45 days, this time with competent defense counsel. The state appealed Judge Burgess’ ruling to the U.S. Court of Appeals for the Ninth Circuit, which unanimously upheld his decision, concluding that “there is a reasonable probability that the jury might have arrived at a different conclusion on the question of whether Jones had inflicted the injuries.”
However, Jones’ good fortune ended last year when the Supreme Court, focusing on procedure and ignoring substance, overturned these decisions and sent Jones back to Arizona’s death row.
During oral argument, Jones’ prosecutor, Brunn W. Roysden III, argued that Jones never should have been able to present the newly discovered evidence showing his innocence to those lower courts in the first place because the Anti-Terrorism and Effective Death Penalty Act (AEDPA), passed by Congress and signed by President Clinton in 1996 to reduce federal habeas corpus review of state court convictions, had stripped those courts of the power to hear Jones’ claims. AEDPA was passed in the immediate aftermath of the Oklahoma City bombings, when the nation was impatient with violent crime generally and, more particularly, was frustrated by the prospect of bomber Timothy McVeigh enjoying an expansive access to the courts that would delay his execution. AEDPA was designed to protect and expedite executions by limiting federal court review of death penalty cases. It did so, in part, by denying federal judges the power to consider evidence never presented in state courts that a defendant’s trial was unfair. According to AEDPA, federal judges were “procedurally defaulted” from considering such evidence.
However, the Supreme Court recognized an important exception to the procedural default doctrine in Martinez v. Ryan, decided in 2012. This case, also from Arizona, involved a defendant who, like Jones, argued that AEDPA’s procedural default rule effectively denied him any opportunity to assert his Sixth Amendment right to counsel because he, too, had “lost the lawyer lottery” and both his trial and post-conviction lawyers had been incompetent. Realizing that in cases like this AEDPA might be erasing the core constitutional right established in Powell and advanced in Gideon, both of which are cited in Justice Anthony Kennedy’s majority opinion, the court carved out an exception to the procedural default doctrine for cases in which inmates seek to prove that previous counsel at both stages were constitutionally deficient.
But last year, the Supreme Court ruled that Barry Jones never should’ve been allowed a “Martinez hearing.” While Powell, Gideon and other cases guarantee a right to trial counsel, the court has never recognized a constitutional right to a post-conviction attorney, even though a professional consensus has emerged, especially in light of all the exonerations of the DNA revolution, that basic fairness requires one. Justice Clarence Thomas’ majority opinion seized on this limitation of the right to counsel to limit its application even further and, as Justice Sonia Sotomayor puts it in her dissent, “gut” the court’s ruling in Martinez. “[B]ecause there is no constitutional right to counsel in state postconviction proceedings,” Thomas writes, “a prisoner ordinarily must “bea[r] responsibility for all attorney errors during those proceedings. … Among those errors, a state prisoner is responsible for counsel’s negligent failure to develop the state postconviction record.”
Barry Jones is a likely innocent man who has spent decades on death row because Arizona’s criminal justice system assigned him multiple lawyers who failed to perform basic tasks that would have freed him. By ruling that Jones should suffer the consequences of his attorneys’ negligence and essentially overruling the Martinez exception to the procedural default doctrine, the court has forsworn and backslid from the commitment it made to protect the innocent long ago in Powell and Gideon. It has all but ensured a future of even more wrongful capital convictions and, quite possibly, executions.
Indeed, in Garza v. Idaho, decided in 2019, two justices, Clarence Thomas and Neil Gorsuch, announced that Gideon hadn’t been decided using the method of constitutional interpretation they preferred and signaled they might be willing to overturn the 60-year precedent. Worse news for the innocence movement can hardly be imagined: Such a regression would potentially throw our criminal trial system into upheaval and stuff our jails and prisons with whomever prosecutors feel like charging—guilty and innocent alike.
The best way to minimize wrongful convictions is to ensure that criminal defendants have competent, zealous advocates in the courtroom pressing their rights and challenging the prosecution’s evidence. In the courtroom, lawyers aren’t just the sword and shield of their clients—they are the tacticians wielding them. A defendant without a skillful lawyer is usually nothing more than a prisoner-in-waiting.
Hopefully, a new generation of law students—born after the DNA revolution in forensic evidence began 30 years ago and raised consuming the seemingly infinite number of news stories, podcasts and true crime documentaries on wrongful convictions—will read the court’s opinion in Shinn as a call to action. We need these future lawyers and judges to answer the alarm and help us put the court back on track to protecting defendants’ right to legal representation.