The U.S. Supreme Court on Monday decided not to correct a factual error it made in a previous opinion, making it much more likely that two death row prisoners who have made credible arguments that the lower courts got their case wrong will be executed.
The court declined a motion to modify its ruling last month against Barry Jones and David Ramirez. Justice Clarence Thomas’ opinion in favor of Arizona included a line saying Jones and Ramirez had conceded that they would lose their appeals unless they were able to introduce newly discovered evidence. But the statement wasn’t true.
Both men were sentenced to death for murder. But Jones’ conviction has been overturned by lower courts in light of new evidence, and Ramirez’s claim of ineffective legal counsel has been backed by his own trial lawyer.
The court’s decision not to modify the line means that a lower court could actually abide by that language. That would almost certainly reinstate the men’s death sentences because virtually all the exculpatory evidence in their cases was discovered only after their state-level trials (and before the ongoing federal-level appeals).
The Supreme Court’s conservative bloc ruled against Jones and Ramirez in May, holding that people can appeal to federal courts if their state-court attorney was incompetent but can’t actually introduce new evidence to support those claims. There is no need to allow new evidence, Thomas wrote, because that undermines states’ sovereign power to “enforce societal norms through criminal law.”
The ruling is in keeping with court’s stance since 2020, an approach that has seen the court repeatedly clear the way for executions after a 17-year hiatus, often in ideologically split decisions, and notwithstanding plausible innocence claims, or disagreement from lower courts, prominent conservative lawyers and even the (virtually apolitical) American Bar Association.
That anemic analysis in Thomas’ May opinion – a policy determination that it’s societally preferable to strictly limit post-conviction appeals, regardless of the weight of newly discovered evidence – underscored the conservatives’ indifference to the wrongful convictions epidemic (to say nothing of the judicial integrity concerns raised by that holding).
The inaction on Monday puts a fine point on it.
The justices declined to correct a single line in a previous ruling, even though the court frequently modifies its opinions, from small spelling errors to substantive statements of law, sometimes publicly and sometimes surreptitiously.
It did so even though Arizona, which refurbished its gas chamber last year and carried out its first execution in eight years in May, agreed with opposing counsel that the court should make the modification.
Moreover, the decision effectively punishes death-sentenced petitioners for the justices’ own mistake – even though the court forgave the same kind of misstep when the state seeking the death penalty was actually at fault. (More on that below.)
As a practical matter, the court’s inaction doesn’t condemn the men to death just yet. Their attorneys can rely on a few last-ditch arguments when the case goes back to lower courts – like judicial estoppel, which precludes litigants from taking positions that contradict their arguments in previous proceedings (here, the state’s agreement to the modification request indicates that it can’t also argue that Jones and Ramirez had in fact conceded that they can’t win without new evidence).
Arizona solicitor general Brunn Roysden III didn’t respond to a request for comment. Robert Loeb, an attorney at Orrick, Herrington & Sutcliffe who represents Jones and Ramirez, declined a request to comment, noting the sensitive nature of the litigation.
On its face, Thomas’ sentence essentially blocked Jones’ and Ramirez’ last remaining path to a successful appeal. It’s premised on a “use it or lose it” principle – a legal doctrine that says certain defenses are automatically forfeited if not raised by a certain point.
Jones and Ramirez “do not dispute, and therefore concede, that their habeas petitions fail on the state-court record alone,” Thomas wrote.
In reality, none of the parties or the state court actually argued or considered whether the appeals could be decided based solely on the state-court record, Loeb said in the June 3 motion for modification. In other words, it simply hadn’t been an issue, so there couldn’t have been a forfeiture.