Brandie Jones was at Arizona State Prison Complex Perryville when her father called. It was the summer 2018. Barry Jones, her father, was serving a death sentence. After more than 23 years, a federal judge has vacated Jones' conviction. He was immediately released by the state of Arizona and retried. Brandie was elated. Brandie was thrilled to have seen Jones again since his 1995 trial, for a crime he had always claimed he didn't commit. Jones was accused of murdering Rachel Gray, his 4-year-old girlfriend, at Desert Vista Trailer Park, Tucson, where they lived. Her abdomen was apparently torn by a blow that had tore her duodenum (part of her small intestine). The child later died. Jones was quickly arrested as the only suspect. Brandie, then 11 years old, recalls that Jones was not allowed to hug him or say goodbye. From that point on, I didn't get to hug him again.Photo by Arizona Public DefenderBrandie did not believe that Rachel had been killed by her father. He was acquitted of his charges. U.S. District Judge Timothy Burgess criticised law enforcement's inordinate speed in deciding the case. After a seven-day hearing at Tucson's federal courthouse in 2017, Jones was convicted. This decision was largely based on the state evidence against Jones. Sonia Pesqueira, the lead investigator, admitted that she hadn't taken any steps to investigate Rachel's stomach injury in 1994. She assumed that it occurred on the day that Jones was spotted. Jones' lawyers called experts to confirm that this was impossible. Jones' lawyers called experts who said that Joness case would not have been halted if there was strong exculpatory evidence. Brandie was the only witness called by defense lawyers to challenge the state's theory of the crime. Burgess concluded that Jones' Sixth Amendment rights were violated by such poor legal representation. Burgess stated that Jones' lawyers would have done their jobs if he was convicted of the murders that sent him to death row.Brandie remembers the stares she received in the courtroom when she took the stand as a witness in 1995. She felt like her father had let her down when she received the guilty verdict. After that, she spiraled downwards. She said that I had made a lot of mistakes. Brandie said that she was angry and got into drugs. She fell onto the tracks after jumping onto a train. Jones wrote her letters as she cycled between prison and home, but it was difficult for her to reply. He would probably be executed one day. She couldn't cope. Jones could have been executed had it not been for an unexpected safety net from the U.S. Supreme Court in another Arizona case. Martinez v. Ryan in 2012 created an exception to federal habeas appeals rules for those who received poor representation at trial or in state post-conviction proceedings. This ruling opened the door to Jones' vacated conviction and an evidentiary hearing.Jones was convicted in 2002, but his conviction was overturned three years later and he is still locked up.But instead of releasing Jones or retrying him, the Arizona attorney General challenged Burgess's order to the 9th U.S. Circuit Court of Appeals sided with Jones. The Arizona prosecutors claimed that Burgess, the 9th Circuit, and Martinez had incorrectly applied the justices' Martinez ruling, opening up a pathway to relief that should have been closed. The Supreme Court announced on May 17 that it would be hearing the case, much to the dismay Jones' legal team. Brandie received the news from her father. Although he tried to sound positive, it was difficult not to feel discouraged when she hang up the phone. Brandie had hoped that she would be reunited with Jones upon her release from prison in 2018. Three years have passed since Jones' conviction was overturned and he is still locked up. He has lost so much of his family's life. Brandie stated that he doesn't know any grandkids. It's all being prolonged, prolonged, and prolonged. Assistant Federal Public Defender Cary Sandman has been representing Jones for years and says that the state's maneuvering in Jones' case is shameful, if it is not surprising. Prosecutors are relying on procedural gamesmanship, the Supreme Court's new conservative majority, and powerful revelations from the evidentiary hearings to stop the prosecution from removing the majority of the evidence supporting the conviction. Sandman stated that if Arizona's attorney general gets his way on the Supreme Court, all evidence of Jones' innocence will be destroyed.Protesters demonstrated in front of Washington's U.S. Supreme Court on February 28, 2000 as justices heard arguments about the Antiterrorism and Effective Death Penalty Act. Photo by Chris Kleponis/AFP via Getty ImagesManufacturing a Problem: When a death penalty case is brought before the Supreme Court, it becomes a matter of fact. As the court has repeatedly stated, even wrongfully convicted persons should not be expected to be spared. The court in Herrera v. Collins ruled that execution of innocent persons is constitutionally permissible under the Eighth Amendment provided they are given fair trials. Leonel Torres Herrera was the plaintiff in that case. He was executed in Texas four months later. Although Jones' innocence may be questioned by some, it is clear that his trial was unfair. It was proven by the evidentiary hearing. Many federal judges concurred that Jones was not provided with effective counsel. Arizona, however, argued that the evidence presented to the Supreme Court should not be counted. Jones will be in danger if the justices don't agree. Arizona is fighting for his reinstatement, but Attorney General Mark Brnovich has been trying to restart executions.Federal judges trying to overturn wrongful convictions have been known to be tied by the AEDPA.These implications extend beyond Jones. Arizona submitted a petition to the Supreme Court arguing that Jones' case was merged with the case of David Martinez Ramirez to show that the 9th Circuit repeatedly violated federal law when applying Martinez' 2012 Supreme Court decision. They specifically cited a provision in the 1996 Antiterrorism and Effective Death Penalty Act, which prohibits federal courts from hearing claims not developed in state court. Shinn v. Ramirez is Jones' case. It pits AEDPA against Martinez. This law was designed to limit federal review in capital cases. Jones' lawyers argue that the two cases were not meant to be combined and that Arizona prosecutors are trying to make a problem of the Martinez ruling by using AEDPA to weaponize AEDPA. AEDPA has been used for decades to block defendants from accessing federal courts and keep wrongful convictions intact. Shinn v. Ramirez is a case that, because it's so technical, people don't realize the extent of its effects. Lee Kovarsky, a prominent habeas corpus and death penalty scholar at the University of Texas School of Law, Austin, stated, "I see Shinn v. Ramirez like that type of case." Kovarsky has presented a case before the Supreme Court. He plans to file an amicus brief supporting Jones. The case is fundamentally about the rights to counsel. It is about whether evidence can be used to support Sixth Amendment right to counsel claims in federal court. If you are unable to use evidence to support the claim, you don't have a Sixth Amendment rights that you can enforce. The Crucial Exception This is a very complex legal question. It is also difficult to understand without understanding the problem Martinez was intended to solve. Criminal defendants are entitled to competent representation during trial under the Sixth Amendment. After they are convicted and sentenced they have the right to challenge their case by claiming that they were not provided with adequate counsel. The burden of proving this is high and, according to federal appeals rules, the challenge must be filed in state court. Otherwise, it will be blocked from consideration in federal courts. It has been especially important in Arizona, where defendants cannot challenge the performance of their trial lawyers on direct appeal. This is the first review that follows a conviction. Instead, they must wait until state postconviction to be granted relief. This is the appellate proceeding in which a defendant must prove their constitutional rights were violated. At the state post-conviction level, an attorney is not guaranteed, and even a competent one. This is in contrast to at trial and direct appeal. A defendant who fails to file an ineffective assistance claim by this stage would be denied the chance to show that their trial was unconstitutional. In 2012, a man from Arizona named Luis Mariano Martinez faced this dilemma. He was convicted of sexually assaulting his stepdaughter, 11 years old, but he claimed he was innocent. His appointed post-conviction lawyer failed to make any challenge to their performance, despite obvious errors made by his trial lawyers. She stated that she had not found any viable claims and did not file any constitutional challenges for her client. Martinez, who was unable to understand English and spoke little English, found the outcome devastating.Even innocent people can be charged if they don't have adequate counsel.The Arizona Justice Project's attorneys appealed Martinez v. Ryan all the way to the Supreme Court. Court had held for a long time that post-conviction lawyers failures could be attributed to the client, and that bad lawyering at this stage did not excuse a procedural error. The court, which included Justices John Roberts & Samuel Alito, ruled in favor of an exception to protect defendants in state that prohibit them from claiming ineffective assistance in trial. The procedural default could be excused if a defendant failed to file a claim in state postconviction proceedings because the post-conviction lawyer was also ineffective. Justice Anthony Kennedy, writing for the majority, explained the necessity for this exception. He wrote that if an attorney makes a mistake in initial-review collateral proceedings it is probable that no state court will hear the prisoners' claim. This would be against the Sixth Amendment right of counsel, a foundation principle in our justice system. Kennedy cited a Supreme Court case to explain what this could mean. Even innocent people can be convicted if they don't have adequate counsel. This is because they do not know how to prove their innocence. The Martinez ruling was significant, and a rare step towards expanding federal court appeals of criminal convictions. Martinez gave defendants another chance in cases that would otherwise have been barred for procedural reasons. However, there is no guarantee that you will win on an ineffective assistance case. Sandman stated that before Martinez, our office lost many, MANY, MANY, many ineffective assistance claims because the claims were not raised in the state court. There was no indication in Martinez's Supreme Court case that AEDPA could be a hindrance. Except for a brief reference to AEDPA, Kennedy did not mention it in the opinion. Martinez was meant to allow defendants to pursue substantial ineffective assistance claims that would otherwise have been prohibited. Because proving such claims generally requires new evidence, it stands to reason that defendants who have overcome the procedural hurdle would be able then to present that evidence in court. Kennedy wrote that this was true in his opinion. Claims of ineffective trial assistance often require investigation and evidence beyond the trial record. Kennedy wrote that Martinez should not put a significant strain upon state resources. This is a prediction which the Arizona attorney general claims has been proven false. Inmates, particularly in death-penalty cases, routinely invoke Martinez to excuse their ineffective-assistance claims procedural defaults, the state argued in its petition to the court. The state cited 18 Arizona cases that Martinez and Jones had not considered. Shinn petition stated that Martinez's 9th Circuit application has had an adverse impact on Arizona and other states.Mark Brnovich (then-candidate for Arizona attorney General) talks with supporters at a Republican Election Night Party in Phoenix on November 4, 2014. Photo by Ross D. Franklin/APIt's a Catch-22. While Arizona prosecutors might consider it an insurmountable burden, when federal judges state that a capital case requires another look, the 9th Circuit's actions following Martinez could be indicative of a new crisis: poor lawyering has led to too many people being sent to death row. Kennedy stated in Martinez that Martinez showed that the majority of attorneys appointed by courts are qualified and perform according to the prevailing professional norms. However, there is substantial evidence to the contrary. AEDPA was passed shortly after the Oklahoma City bombing in which Jones was convicted. It was designed to speed up the federal appeals process and has been known for binding the hands federal judges trying to overturn wrongful convictions. AEDPA had another effect in Arizona that helped Jones get to where he is today. The law also included a lesser-known provision that allowed federal habeas to be reviewed faster in states that were willing to provide well-paid post-conviction counsel. Arizona attempted to use this provision even though no other state was able to do so. The Arizona Supreme Court will manage a special session that was held shortly after AEDPA became law. It was a complete failure. Larry Hammond, cofounder of Arizona Justice Project, expressed concern about the unfolding crisis in a 1998 article. He wrote that more than 200 letters were sent by the courts staff to attorneys inviting them to apply to be appointed as counsel. Advertisements were also published in legal publications. Only 16 people responded to these solicitations. Four of them did not meet the requirements for representation on death row.I have seen post-conviction petitions without the correct names or claims of clients.
