It’s not surprising that last week’s decision in the Arizona case of Shinn v. Ramirez and Jones didn’t get much coverage outside of the legal media. The decision is procedural rather than substantive, and the majority opinion by Justice Thomas in the 6-3 holding is hard sledding. Nonetheless, it is a classic example of law trumping ethics. The Justice Sotomayor dissent, joined by the other two liberal justices, argues that it trumps law as well.
I would not argue that law must never trump ethics, for law requires consistency and systemic application over the long term to have credibility and integrity. However, Shinn involves a man facing the death penalty, and the decision by the conservative justices chose the virtues of finality over the possibility that the government might be executing an innocent man.
One of the Ethics Alarms maxims is that if you are aware of an unethical situation and are in a position to address it, fix the problem. In Shinn, the Court specifically rejects that approach. A defendant’s chances of acquittal were doomed by the ineffective assistance of a court-appointed counsel both at the trial level and in the appellate challenge to the conviction based on ineffective assistance of counsel. That’s two bad lawyers, but in the criminal justice system, a client bears the consequences of his or her lawyer’s inadequacies. The system has a legitimate interest in finality, otherwise appeals could go on forever, particularly in capital cases. Barry Jones now faces execution because both of his lawyers botched his case, and he exhausted all of the state options to appeal. Now, another set of lawyers say, there is evidence that he is “actually innocent,” not merely innocent by virtue of flawed due process.
The state argues that the law shouldn’t require it to re-litigate a criminal case every time the defendant comes up with some new argument, theory or evidence. There is a legitimate state interest in finality, or as Justice Scalia brutally put it in a dissent, “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.”
The majority opinion rejects the district court providing the defendant with a route to pursue the argument of actual innocence, despite his lawyers showing that there was real evidence to support the claim. Thomas says, essentially, that he had his shot, in fact more than one. Case closed.
The Innocent Project, correctly pointing out the flaws of the chronically underfunded public defender services, protests,
Because the Court’s emphasis on finality blinks this reality, it exacerbates the intolerable risk of innocent people languishing in prison and even being executed. It is therefore now incumbent upon the states to ensure that people charged with crimes have qualified and resourced counsel and there is a meaningful opportunity to litigate claims of trial counsel ineffectiveness.
There is no doubt that by stripping back people’s constitutional rights to effective counsel, this decision increases the risks of wrongful conviction and sentencing innocent people to death.
Simple Justice puts the ethical issue in blunter terms:
…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.
Now the only escape the convicted have in Arizona is through a pardon, and a pardon must be recommended to the Governor by the Board of Executive Clemency.