Our Lawless and Depraved Supreme Court
In its latest terrible ruling, the High Court declares that evidence of innocence is not enough to save a death row inmate from a lethal injection.
I’m Michael A. Cohen, and this is Truth and Consequences: A no-holds-barred look at the absurdities, hypocrisies, and surreality of American politics. If you received this email - or you are a free subscriber - and you’d like to subscribe: you can sign up below.
A quick personal note: I dropped my kids off at school on Monday morning and came home with a writing plan for the week. It’s part of a new thing I’ve been doing on Sunday nights — planning my writing schedule and thinking about the topics I want to address. Then I checked on Twitter and read about the Supreme Court's absolutely depraved and illogical ruling on Monday that would prevent a likely innocent man from escaping death row. It is the kind of story that, at first blush, makes me want to quit opinion writing, build a shack in the forest, and live out my days in blissful ignorance.
But, of course, that’s not what I did. Instead, I channeled my outrage into a 1200-word piece looking at this latest disgraceful decision to emanate from the Court’s conservative majority. I’m not so deluded as to believe my words will make much of a difference. They won’t convince the conservative members of the Supreme Court to be better people. They likely won’t do much to change public opinion. I’ve done this kind of work for enough years to understand its limitations. And yet, I toil away at it, along with countless other scribes … because what else is there to do, especially when your most notable (and perhaps only) skill is writing?
Channeling the outrage from social, racial, gender, judicial, and economic inequality (to name a few), telling political and policy stories (some good, many bad), and hoping that it educates, informs, and has some small impact on public opinion remains an abiding motivation. Sometimes I joke that I write for a living because it beats getting a real job. But the real reason is that it provides an outlet for raising awareness, spreading knowledge (hopefully), and, yes, channeling outrage! Even in an era of extreme polarization, I still host fast to the belief that truth and facts can win out (sometimes) — and, as always, I treasure the opportunity to share those ideas with you.
Ok, now on to the latest outrage …
Shorter Supreme Court: “Enjoy That Last Meal”
As mentioned above, I have a new piece up today at the Daily Beast on the latest no-good, terrible, deeply immoral, and legally dubious decision from the conservative majority on the Supreme Court:
Last December, the Supreme Court gathered to hear oral arguments in Shinn v. Ramirez, a case that could mean life or death for Barry Jones, who sits on death row in Arizona for the rape and murder of his girlfriend’s 4-year-old daughter, Rachel.
In 2018, a federal court overturned Jones’ conviction, concluding that he had failed to receive effective counsel, a violation of his Sixth Amendment rights. Had that happened, a federal judge ruled, “there is a reasonable probability that his jury would not have convicted him of any of the crimes with which he was charged and previously convicted.”
After losing in the 9th U.S. Circuit Court of Appeals, Arizona’s attorney general appealed the decision to the Supreme Court. During those oral arguments, state prosecutors repeatedly argued that “innocence isn’t enough” of a reason to throw out Jones’ conviction.
On Monday morning, by a 6-3 vote, the Supreme Court concurred: Barry Jones’ innocence is not enough to keep him off of death row. The state of Arizona can still kill Jones, even if there exists a preponderance of evidence that he committed no crime.
It’s legitimately hard to do justice to the moral depravity of this decision. Jones, indigent when arrested, was provided a court-appointed lawyer, who gave him ineffective counsel. After his conviction, he filed an appeal on these grounds. He was then provided another lawyer, who also gave him ineffective assistance. So Jones petitioned a federal judge. Jones argued that he received poor legal counsel not once—but twice. And the fault lay not with him but his lawyers, appointed by the state of Arizona.
By allowing him to introduce evidence of his innocence, a federal court would be, in effect, rectifying the mistakes made not just by his lawyers but by the state responsible for providing them. A federal judge agreed and threw out his conviction. As noted above, the court determined that if his lawyers had provided Jones with a reasonable defense, he likely wouldn't have been guilty.
But according to the Supreme Court, none of that matters. Writing for the majority, Justice Clarence Thomas declared that a federal court “‘may not conduct an evidentiary hearing or otherwise consider evidence beyond the state-court record based on the ineffective assistance of state postconviction counsel.’ In short, a convicted defendant, like Jones, can be held responsible and kept in prison if his state-appointed lawyer provided ineffective counsel for his appeal.”
I’m at a loss in understanding how a defendant can show that they received ineffective counsel if they can’t introduce new evidence. To follow Thomas’s logic (and I use that word guardedly), Jones must rely on the record of a trial in which he was ineffectively defended. And even worse, simply demonstrating to the court that there exists substantial evidence of his innocence is not good enough.
Hang ‘Em High
It bears noting that this is not the first time the Supreme Court has taken the position that simply being innocent of a crime is not a good enough reason to free someone from prison. Thirty years ago, Justice Antonin Scalia wrote (in a death penalty case) that “there is no basis, tradition, or even in contemporary practice for finding that in the Constitution the right to demand judicial consideration of newly discovered evidence of innocence brought forward after a conviction.” Scalia’s position, in effect, deems it constitutional to impose the death penalty on an innocent man. At the time, Justice Harry Blackmun analogized the argument to “simple murder.”
But there is a large agenda at play here. As Jonathan Zasloff, a law professor at UCLA, and friend of the newsletter, said, “the court’s conservative majority does not fully accept the idea that there is a right to effective assistance of counsel.” Thomas and possibly Neil Gorsuch don’t necessarily accept that the government has a responsibility to pay for an indigent defendant’s representation. Indeed, Thomas comes right out and says that federal review of state trials, as in the Jones cases, creates “significant costs” for state judicial systems and interferes with a “state’s sovereign power” to apply the law. Better to save a few dollars and expedite the workings of the criminal justice system than make sure everyone sent to prison receives a fair trial and is actually guilty.
The other backdrop to this case is the attitude of the Court. It’s important to note that it was only a decade ago that the Court, by a 7-2 margin, ruled in Martinez v. Ryan that a convicted defendant “is not at fault for any failure to bring a trial-ineffectiveness claim in state court.” In that case, Justices Roberts and Alito voted with the majority — Thomas and Scalia were in the minority. Now just ten years later, and with the votes to further hamstring criminal defendants, the conservative majority has no qualms with simply reversing themselves. So much for precedent and so much for protecting the rights of the accused.
It’s yet one more example of the Court's increasingly lawless and profound ideological turn. In the next month or two, the conservative majority will likely overturn Roe V. Wade, scrapping nearly 50 years of judicial precedent and rendering a decision opposed by more than 6 out of 10 Americans. The conservative members of the Court now have the votes to transform American society — and the justice system — and quite simply, they will use that power. They’re not accountable to anyone. There is no check on them. They can make decisions based on pure ideological reasoning or a partisan desire to help Republicans maintain political influence. Congressional Democrats and the president can’t stop them and certainly can’t agree on packing the Court to dilute their power. In the simplest and crudest terms, they don’t give a fuck.
And, right now, no one can make them.
What’s Going On
Henry Kissinger says Ukraine should be pressured to give up territory to Russia, marking the first time that Kissinger and Noam Chomsky agreed on something. For the record, there is a logic to Kissinger’s argument about the need to resolve the conflict as quickly as possible and set realistic terms for a cessation of hostilities … but Kissinger could have expressed that view in less noxious terms.
I can’t say I agree with Jessica Winter’s take on the Johnny Depp-Amber Heard trial, but since I sent around Natalie Shure’s anti-Amber Heard argument last week, I figure I should give you both viewpoints.
Read Mike Tomasky on CPAC’s alarming decision to hold a recent event in increasingly illiberal Hungary.
Interesting piece on the depths of American polarization.
“Better Call Saul” is arguably the best show on television today and belongs in the GOAT conversation with “The Wire,” “The Sopranos,” and “Breaking Bad.”