Law vs Ethics: A SCOTUS Decision Rings Ethics Alarms

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.

14 thoughts on “Law vs Ethics: A SCOTUS Decision Rings Ethics Alarms

  1. If a jury in fact found this guy guilty and sentenced him to death then that should not be disturbed. The jury is in a unique position to observe credibility and decide who to believe and who not to believe. It sucks to be facing a long prison sentence or be facing death and have an attorney who is really not up to the task. However, the 6th amendment guarantees a right to counsel, it does not guarantee the right to have Bruce Cutler or F. Lee Bailey represent you if you are facing the harshest sentence of all. You also pick your poison when you choose what theory to assert in your own defense. If you decide to later assert a different theory after final judgment has been entered, then the bar should be exceptionally high. There comes a point when the appeals have to end and the door has to slam permanently or you need to take that gurney ride to the needle. The state has an interest in finality and the victims have a right to closure. The system was never meant to be one where only the defendants had rights. Frankly, I’m surprised the left objects to this. At this point they love nothing better than to throw due process out the window. They want a system where a charge is as good as a conviction and nobody fusses much about sending the accused to prison for a good long time.

    The problem is, they want that system only to apply to those who don’t agree with them. If a member of one of their favored groups is the target of a criminal investigation, they want every possible protection under the sun, and they want minimal punishment. If the accused is not a member of one of their favorite groups, then they want swift justice, severe punishment, and meaningless appeals. Maybe they would prefer no appeals at all for those they don’t agree with, because, after all, what is the point in prolonging a process that is just going to end up upholding the original decision and will just delay righteous punishment from being implemented? To hell with equal protection and all that jazz, this is like 1984, all people are equal but some are much more equal than others. Sometimes I wonder why the Democratic party doesn’t just declare martial law with a vague promise that someday they will consider giving us some of our freedom back. Put your mask on, citizen!

    • From the comfort of a judge’s chambers and as an abstract idea, I agree with you. In reality, it’s much more complicated. Cases like this are why I would up the standard for the death penalty. Some people have proposed a “beyond all doubt” standard. I like that better because you aren’t as likely to kill an innocent person that way.

      I also think law schools should require a course in actual logic (like philosophy majors take) and a course on cognitive biases in thinking. These should be required at every law school. I would require them in high school, but one step at a time.

      As for the hypocrisy of the left, I absolutely agree with you. For certain crimes or if you are a white man, the left pretty much doesn’t believe in due process anymore, just as they don’t believe in free speech anymore. They have a fundamentally different vision of the world, and they would probably be happier in a European country.

  2. I was hoping you’d write about this one. It’s on my list, too, although I doubt I can say much that you haven’t. I need to read the ruling more carefully, but if I’m understanding correctly, the “new evidence” isn’t really new at all, but was already available to either of Jones’s previous lawyers, if they’d done their damned jobs. Nor does that evidence offer mere “reasonable doubt” of his guilt; it exonerates him beyond reasonable doubt.
    This ruling doesn’t square very well with Ben Franklin’s maxim that it would be better to have 100 guilty people go free than to punish one innocent one.
    I just can’t wrap my head around the complete lack of concern for actual justice.

    • It’s a “you can’t get there from here” decision at its core. I see the concern—if we can just ignore the procedure when it doesn’t produce a just result, then where do you stop? Still, an innocent life maybe at stake, and that, at least from an ethical perspective, should be paramount.

      I’d recommend reading the dissent. It’s a lot easier.

    • It would suck to be that one innocent guy to get fried, but if you aren’t him, do you want those 100 guilty men moving into your neighborhood? Maybe we should resettle them under the L.A.R.K. program (Liberals Assume Responsibility for Killers).

      • I would assume that Franklin would rather live next to 100 criminals that couldn’t be convicted beyond a reasonable doubt than live next to the empty house that used to belong to the one innocent man wrongly convicted.
        Regardless, I think your lark concept conflates refusal to prosecute with lack of evidence to convict beyond a reasonable doubt.

  3. I think this is a hard decision because the system has to function in some sort of predictable, consistent way. However, if there is evidence that someone is innocent, procedure should not dictate that person remains in prison or is even executed because the system’s steps have been exhausted. There should always be the possibility of hearing new evidence if it legitimately shows a person is innocent.

    This decision should be causing more controversy than the potential of Roe v. Wade being overturned.

  4. This is a head-exploding ruling for me. I agree 100% with sooner8728’s comments to date on this post.

    I can see why the courts would want to discourage the possibility of people taking months or years to fabricate exonerating evidence after a sentencing, then wasting people’s time asking for it to be reviewed, only to be discovered and charged for perjury (or whatever that would be called). However, there’s an easy solution: require the evidence to be presented to the state by a lawyer. Under this policy, the lawyer must do the work (presumably paid) to make sure the evidence is genuine before presenting it to the state, because if they present false evidence they could be disciplined for it.

    Speaking of which, if Curmie’s interpretation of the case is correct then Jones’s lawyers should be disciplined, and possibly sued if that’s allowed.

    There’s another point that confuses me, though: this case made it to the Supreme Court, which means that someone is actively fighting to keep Jones on death row. Am I to assume they’re doing so because they’re just as dedicated as six of the current Supreme Court justices to upholding the system as designed, such that remedying obvious miscarriages of justice is prohibited? This is the sort of thing that makes people hate bureaucrats. I daresay somebody in this situation really might deserve capital punishment.

    • It would be strange (but not out of the realm of law type reasoning) that you could sue someone for ineffective assistance of counsel, win the lawsuit, and then still be executed. The law can be a strange creature. Sometimes it’s the legislature, but sometimes it’s the courts.

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