The U.S. Supreme Court will hear a case Wednesday that could redefine how ineffective state trial counsel claims are heard in federal courts. (AP Photo/J. Scott Applewhite)
Two Arizona men are sitting in their prison cells counting the days until the state will execute them. They will be given a choice between lethal injection or a gas chamber.
David Martinez Ramirez and Barry Lee Jones have different life stories, but one thing in common: They likely wouldn't be sitting on death row if their court-appointed criminal defense lawyers had not botched their cases to a degree that federal courts have found to be unconstitutional.
David Martinez Ramirez
Barry Lee Jones
Under the Constitution, inmates can challenge their detention or sentence on constitutional grounds through the habeas corpus process, where they can ask a federal court to release them or order a new trial.
But the Antiterrorism and Effective Death Penalty Act of 1996 says only evidence already produced in state court proceedings can be used. The state of Arizona, which petitioned the Supreme Court for a writ of certiorari in January, asked the justices to bar Ramirez and Jones from using evidence in federal court that the men say could potentially save their lives.
On Wednesday, the justices will hear Ramirez's and Jones's cases jointly, and they will later decide whether the Supreme Court's ruling in Martinez, which created a narrow window to allow evidence produced outside the state court record to be used in habeas proceedings, applies to them.
Current attorneys for Ramirez and Jones say an adverse decision will undermine everyone's constitutional right to a fair trial.
"If Arizona prevails here, it will not just harm these two individuals but it will mean, more broadly, in Arizona and other states, there often will be no court to remedy violations of the constitutional right to effective trial counsel," Robert Loeb, a partner at Orrick Herrington & Sutcliffe LLP who will argue on behalf of the inmates, told Law360.
The office of Arizona Attorney General Mark Brnovich did not respond to a request for comment.
Nine amici curiae briefs were filed in support of Jones and Ramirez, both convicted of murder, arguing that the rule Arizona asks the court to adopt would lead innocent individuals to be imprisoned and executed, and would undermine public confidence in the criminal justice system.
Alexis Hoag, a professor at Brooklyn Law School who co-chairs the New York City Bar's capital punishment committee, said the case strikes at the heart of the right to due process.
"The case presents to the court this question of whether a state, in these instances Arizona, can properly put a person to death without allowing that person a fair trial," Hoag said. "That should give everyone pause and ring alarm bells."
Assisted by attorneys with the Office of the Federal Public Defender, Ramirez and Jones each convinced federal courts that they had been previously assisted by incompetent lawyers in both the trial and the post-conviction phases of their state court proceedings.
In separate rulings, the Ninth Circuit agreed with Ramirez and Jones.
Jones was convicted of the rape, assault and murder of the 4-year-old daughter of his ex-girlfriend, but Federal Defender attorneys produced new medical examiner opinions and other testimonial evidence that cast serious doubts on the state's theory and timeline of the events in the case. The attorneys strongly believe Jones is innocent.
His lawyer in state court, Sean Bruner, conducted a "deficient investigation" that effectively crippled Jones' defense, a district court ruled in 2018. James W. Hazel Jr., the attorney who represented Jones in the post-conviction phase, failed to bring up a claim that Bruner was constitutionally ineffective.
In a call with Law360, Bruner admitted he dropped the ball on Jones' defense at trial. In particular, he acknowledged failing to impeach a medical examiner called by the state to testify against Jones who had changed his opinion on the stand to fit in the prosecutor's case.
"I admitted in habeas corpus action that I had messed up when in failing to cross-examine him about that," Bruner said.
Hazel, who earned a law degree at the University of Toledo College of Law in 1986 and is now a judge at Oro Valley Magistrate Court in Arizona, declined to comment to Law360 "as the case is pending before the Supreme Court." He has testified during habeas court proceedings that he was unqualified to represent a defendant in post-conviction proceedings in a death sentence case at the time he was appointed to Jones's case in 1999.
Assistant Federal Defender Cary Sandman, who represented Jones in federal court proceedings, told Law360 that the original police investigation against his client was colored by a rush to judgment and a lack of due diligence.
"In a case of a wrongful conviction, there are usually some flaws or negligence in the original police investigation, which you would hope that the defendant's original lawyer would have discovered and dealt with from the get-go," Sandman said. "That never happened."
Ramirez was found guilty of killing his girlfriend and her teenage daughter. His court-appointed attorney, Mara Siegel, failed at sentencing to raise a claim that he is intellectually disabled, a factor that makes him ineligible for the death penalty under the interpretation of the Eight Amendment the Supreme Court gave in its 2002 decision in Atkins v. Virginia .
Siegel, a graduate of DePaul University College of Law, had no experience with capital cases, nor had she ever observed one. Ramirez's post-conviction attorney then failed to bring up Siegel's ineffective representation.
Assistant Federal Defender Timothy M. Gabrielsen, who took over Ramirez's case in the federal habeas corpus proceedings in 2008, told Law360 that an intellectually disabled defendant should not be held responsible for telling his lawyers what his claims are or be the one to tell them that his intellectual disability should impact whether or not he's executed.
"The lawyers have to investigate and present those things. And in this case, that did not happen," he said.
Siegel could not be reached for comment.
The Martinez "Gateway"
Under Arizona law, criminal defendants cannot raise ineffective counsel claims on appeal. They can only do so during post-conviction proceedings in a process called collateral review.
In its Martinez decision, the Supreme Court said it didn't matter whether a state allowed ineffective counsel claims to be raised at the appellate level or in a secondary proceeding, such as in Arizona — defendants still have a right to bring that type of claim before a federal court.
A year later, the Supreme Court applied the Martinez rule to another death penalty case, Trevino v. Thaler, in Texas.
But the dispute before the high court in the Ramirez and Jones case centers on whether defendants can produce new evidence during the federal habeas corpus proceedings.
Arizona now argues the Martinez rule was never intended to permit new evidence to be produced in federal court during a habeas corpus proceeding, and it asked the Supreme Court to rein in interpretations of the rule that allowed that.
Section 2254 (e)(2) of Article 28 of United States Code bars federal courts from holding evidentiary hearings on claims defendants failed to develop in state court proceedings, with some narrow exceptions.
In its cert petition, Arizona said the Ninth Circuit panels that ruled in favor of Ramirez and Jones overstepped their authority in allowing the defendants to bypass the procedural default by wrongly leaning on the Martinez decision.
"Their decision to prioritize a court-created equitable rule over a statute limiting judicial authority intrudes into Congress's realm," the petition says.
Arizona argues the Martinez rule "operates as a gateway to merits review — nothing more, nothing less."
"Once a default is excused, Martinez's work is done, its relevance ends, and the rules generally applicable to merits review take over and govern the availability of habeas relief," the petition reads.
Loeb said that since the Martinez case was decided nine years ago, no court of appeals has adopted Arizona's "extreme" reading of federal law.
"Arizona, now, however, seeks to gut the right recognized in Martinez. It argues that the new evidence about the ineffectiveness of trial counsel cannot be considered by the federal court, and that without such evidence the individuals' claims must be rejected." Loeb said. "That would render Martinez toothless and would make habeas review in this context a mockery."
Eighteen states, 15 of which are fully controlled by Republicans, one, Oregon, fully controlled by Democrats, and two more that lack a controlling majority, filed amicus briefs in July in support of Arizona, arguing in favor of states deciding for themselves the process for raising habeas corpus claims.
"The Ninth Circuit overlooked these interests and effectively countermanded AEDPA [the Antiterrorism and Effective Death Penalty Act] ... to allow Ramirez and Jones to invalidate state-court convictions using evidence Congress chose to exclude from federal-habeas proceedings," says the brief, which was filed by Texas Attorney General Ken Paxton.
In their brief, the states argue the Ninth Circuit interpretation of the Martinez rule has overburdened federal courts with evidentiary proceedings, something the Supreme Court had warned against in a later decision, Davila v. Davis , in 2017. Ruling 5-4 in that case, the court denied Texas death row prisoner Erick Daniel Davila habeas corpus relief in federal court in part because his state attorney failed to raise a claim of ineffective representation by his appellate attorney during the state habeas proceedings as required by the AEDPA.
Evidence "Game Changers"
At trial in 1995, Jones was found guilty of first-degree murder, sexual assault and three counts of child abuse in the death of his live-in girlfriend's young daughter, Rachel Gray. A medical examiner initially ruled she died of an infection of the abdominal organs caused by blunt-force trauma. The age of the victim was an aggravating factor the judge considered before sentencing Jones to death.
The police and prosecutors' theory centered on the medical examiner's conclusion that Rachel suffered the fatal blow 12 hours before she died, during a short window of time on a Sunday that she had spent, in part, with Jones. The lead prosecutor in the case, Sonia Pesqueira, assumed the timeline was correct. She also failed to pursue other leads.
Appointed to defend Jones, Bruner, a 1981 graduate of the University of Arizona College of Law who at the time ran a solo practice, never challenged the state's timeline, despite the fact that the defendant continued to profess his innocence.
Bruner said Jones made a "perfect target" for the prosecution.
"Barry was a meth addict. He was like the 'bad boyfriend' kind of guy," Bruner said. "They didn't really have any direct evidence of anything, but he was like the perfect foil. He played the part, and so they wanted to lock that in."
The Federal Defenders picked up the case in 2001. The following year, Sandman and his colleagues obtained new medical evidence contradicting the state's theory. In 2008, a federal district court denied review of the evidence, citing the procedural default.
Then came the Martinez decision. A narrow path opened for Jones, but the process of introducing the possibly life-saving evidence moved slowly. It took years.
In 2017, at an evidentiary hearing in federal court in Tucson during habeas corpus proceedings, the same medical examiner called by the state to testify at Jones' trial, Dr. John D. Howard, backtracked from the testimony he gave more than two decades earlier. Howard told the court Rachel's fatal injuries could have been caused days before her death, not just in the 12-hour period he had testified about at trial. The pivotal change in opinion threw the prosecutors' theory into doubt.
"If this original jury had heard the evidence that we presented, it was reasonably probable that he would never have been convicted and spent the last 25 years on death row, which is where he's still sitting," Sandman said.
Ramirez was found guilty on July 27, 1990, of stabbing his girlfriend and her 15-year-old daughter to death in the early hours of May 25, 1989. During a psychological examination ahead of the sentencing hearing, Ramirez said he had several drinks that evening and that he had injected cocaine. He also admitted to having sex with the girl several times, including on the night of the murders.
His defense at trial was there was no direct evidence linking him to the crime. There were no fingerprints on the murder weapon. Siegel called only one witness. The jury convicted Ramirez of two counts of premeditated first-degree murder.
At sentencing, Siegel failed to present evidence of his intellectual disability — including IQ scores indicating he was grades behind his peers — and a history of suffering child neglect and abuse, all of which could have been a game changer, the attorneys now representing the defendant said.
With that critical information missing, on Dec. 18, 1990, the trial court sentenced Ramirez to death. The Arizona Supreme Court affirmed the sentence in March 1994. Months later, the U.S. Supreme Court declined to hear his case.
Another state-appointed lawyer, now deceased, representing Ramirez during the post-conviction review failed to raise an ineffective counsel claim, even though he was aware of the evidence Siegel had failed to present, court records show.
"Lawyers have to be competent at both the trial and the post-conviction stage. In Mr. Ramirez's case, that was not true at either level," Gabrielsen, the assistant federal defender who took over Ramirez's case in 2008, told Law360.
Ruling in the Ramirez case in September 2019 and in the Jones case in November 2019, the Ninth Circuit said the two defendants had standing for evidentiary hearings under the Martinez rule. Arizona later petitioned for a rehearing en banc, but the appellate court denied the petition, with eight judges dissenting. The state filed its petition with the U.S. Supreme Court on Jan. 20.
In September, a group of former U.S. Department of Justice officials and prosecutors filed a brief in support of Ramirez and Jones, arguing that barring new evidence in federal habeas courts would gut the Martinez rule. Defendants will be prevented from supporting their ineffective counsel claims, they said.
In the most extreme scenarios, the former prosecutors argued, habeas petitioners would be able to show their attorneys failed to uncover evidence pointing to their innocence, but federal courts would still be bound to ignore it.
That would potentially lead to innocent defendants being put to death and at the same time strike a blow to the public's confidence in the justice system, which is crucial for it to work, the former prosecutors said.
"Petitioner would transform Martinez into a hollow precedent that offers a federal habeas petitioner an empty promise of judicial review. This is anathema to public confidence in the criminal justice system," their brief says.
Keeping the Martinez gateway open, Gabrielsen said, gives defendants on death row their only chance to prove that their constitutional rights to effective counsel were violated.
"The state of Arizona wants David Ramirez to pay the price for the two levels of incompetent representation. These were court-appointed lawyers. David Ramirez didn't hire these lawyers," he said. "That's why this case is so important."
--Editing by Jill Coffey and Emily Kokoll.