The Court of Death

By Eric Segall

Readers of this blog probably know that I had a very close relationship with retired Judge Richard Posner before (and a little during) his current terrible battle with Alzheimer's. We talked on the record roughly once every two weeks for years and I have hundreds of hours of recorded conversations with probably the most famous judge of our lifetime not to sit on the Supreme Court. 

Posner, who everyone knows was not shy about saying what he felt, ranted quite a bit during these conversations about many things legal, political, and social. But the angriest and most upset I ever heard him was about an old concurring opinion by Justice Antonin Scalia in Herrera v. Collins, joined only by Justice Clarence Thomas. 

The majority in Herrera ruled that, absent a constitutionally flawed trial, a capital defendant could not seek to re-open the trial with new evidence ten years after the initial trial. The dissent thought this was terrible, and it is, but Justice Scalia went further to say that the Constitution does not prohibit the execution of a person even if he is actually innocent  and even if the trial was constitutionally flawed, if there was a procedural default. Here are the words Scalia wrote that Posner told me were the most offensive he had ever come across from the modern Court:

There is no basis in text, tradition, or even in contemporary practice (if that were enough), for finding in the Constitution a right to demand judicial consideration of newly discovered evidence of innocence brought forward after conviction [even in a capital case].

Justices O'Connor and Kennedy, who both joined the majority opinion, were so offended by this idea that they wrote separately just to register their objections. They responded to the Scalia/Thomas concurrence by saying that "the execution of a legally and factually innocent person would be a constitutionally intolerable event." 

Or, as Posner said to me, "what kind of person would say that it is okay to put to death an innocent person? What kind of country would allow that to happen?" Posner also noted the irony of Scalia's and Thomas's "pro-life" positions on abortion and their pro-death positions on the state executing an innocent person.

Well, last week the Roberts/Trump Court voted six-three in Shinn v. Martinez Ramirez to allow Arizona to put to death two men who alleged ineffective assistance of counsel at both the trial and post-conviction stages of their journeys through the state court system. Mike explained this somewhat complicated case fully here. Suffice it to say that the six conservative justices felt that narrowly reading (or maybe misreading) a federal habeas statute to prevent a new hearing in this precise situation was more important than avoiding a situation where the state puts to death an actually innocent person. Yes, you read that right.

Justice Thomas wrote that "we now hold that, under §2254(e)(2), a federal habeas court may not conduct an evidentiary hearing or otherwise consider evidence beyond the state-court record based on ineffective assistance of state postconviction counsel." In other words, even if a capital defendant claims ineffective assistance of trial counsel, and is barred from raising that claim on direct appeal (which is the case in many states because appellate and trial counsel are often the same), and then also claims ineffective assistance of counsel during his state habeas proceedings, he is still barred from claiming actual innocence based on new information in his federal habeas petition (no matter how much the evidence shows actual innocence).

This result is Posner's nightmare come to fruition. Justice Sotomayor spared no words in dissent: "This decision is perverse. It is illogical: It makes no sense...." She went on to explain how the majority's convoluted logic and mistreatment of both federal law and precedent effectively extinguishes many valid sixth amendment ineffective assistance of counsel claims. And, of course, worst of all, it is quite probable that the states will put innocent people to death.

For the purposes of this blog post, I will assume that reasonable people can disagree over the use of the death penalty. I will also concede that, of course, we need to have a substantial degree of finality of state court decisions for our criminal justice system to operate effectively. But, contrary to the decision by the Court's conservatives, when there are allegations by a convicted defendant of a constitutionally insufficient trial in a death penalty case because of ineffective assistance of counsel, and then habeas counsel is also alleged by the defendant to be ineffective, and new evidence points strongly to the defendant's innocence, to execute such a person with no additional hearing at all is simply barbaric. 

Now some may respond that I am not doing the Court's opinion justice in that federal habeas relief is complicated, is governed by federal statutes, and the conservatives just felt that their hands were tied. Playing devil's advocate, I raised similar arguments with Posner when we discussed Scalia's concurring opinion in Herrera, which at the time was joined only by Thomas. You might be able to guess Posner's response, which was the same one I would give to folks claiming the Court in Ramirez was simply doing its best to follow the law: no amount of procedural wrangling or complicated statutory habeas requirements can possibly justify putting a person to death in the face of serious evidence of innocence. As Justice Blackmun once wrote, "nothing could be more contrary to contemporary standards of decency...or more shocking to the conscience...than to execute a person who is actually innocent."

I do not think reasonable people can disagree with that statement even in the face of a terrible decision by six GOP Justices sitting on the Court of Death.