Innocence Isn't Enough | Crooked Media
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May 30, 2022
Strict Scrutiny
Innocence Isn't Enough

In This Episode

Investigative journalist Liliana Segura joins Kate, Melissa, and Leah to tell the story of Barry Jones, who was the center of one of the cases in Shinn v. Martinez Ramirez [3:30]. The Supreme Court released an opinion in the case last week, and it’s bad. There is a miniscule moment of joy, though, in the recap of the opinion in Morgan v. Sundance, which is about arbitration and also Taco Bell [51:58]. Finally, we do a quick round-up of other court-adjacent news, including the fever dream that is Ginni Thomas’s email signature, and theories as to why the Court is being so unusually quiet for this late in the term [59:28].

 

TRANSCRIPT

 

Leah Litman: [AD]

 

SHOW INTRO

 

Leah Litman: Hello and welcome back to Strict Scrutiny, your podcast about the Supreme Court’s steady nullification of various constitutional rights Mou used to possess.

 

Melissa Murray: And the embiggening of new ones.

 

Leah Litman: Yes. Oh, how did this get so dark, so early? We’re your hosts for today. I’m Leah Litman.

 

Kate Shaw: I’m Kate Shaw.

 

Melissa Murray: And I’m Melissa Murray. And today we’re going to be recapping the opinions we got last week. We will also offer for our regular listeners a new installment of our now near weekly segment titled What Ginni Thomas Insurrectionist Machinations Became Public this Week. So stay tuned for that.

 

Kate Shaw: So that’ll be near the end of the episode. It feels like we should start, though, by acknowledging that we were recording on Friday and this week feels like it has been a lifetime. And that is largely because on Tuesday an 18 year old brought a lawfully purchased AR15 rifles into an elementary school in Uvalde,Texas, and massacred 19 schoolchildren and two teachers. We are the only country in which people in many states can purchase military style weapons with no questions asked. We are the only country in which children are routinely gunned down in their schools. A decade ago, something just like this happened at Sandy Hook Elementary School in Newtown, Connecticut. It looked like Congress might actually take some action to place some restrictions on gun purchases. That failed, though. States like Connecticut and New York did pass important new gun laws and were beginning yet another wrenching debate about the political prospects for meaningful gun regulation. And we are not here to offer our political takes on the likely success of those efforts to save America and other political podcasts. Have you covered on that? But I did want to say one thing, which is that arguments that the Constitution is some kind of absolute obstacle to gun regulation are garbage arguments. Even Heller, the 28 decision in which the Supreme Court for the first time held that the Second Amendment protects an individual right for gun ownership, made crystal clear that its opinion left a lot of room for gun regulation. So any politician who invokes the Second Amendment and Heller as an excuse to vote against things like background checks and red flag laws is an absolute coward, refusing to take political and moral ownership of a position that we should not regulate guns. So details are still emerging. It’s all horrifying beyond belief. We will have more to say about it in the coming weeks. But for now, we’re going to shift to the opinions the court handed down this week.

 

Leah Litman: So we have with us a wonderful guest who will help us break down the first of these opinions. We are beyond delighted to be joined by Liliana Segura, whose work and writings we have highlighted previously on this show and whose writings I share with my habeas corpus class, by the way. Liliana is an award winning investigative journalist who covers the criminal legal system in the United States. She is currently at The Intercept, where she has received the Texas Gavel Award in 2016 and the 2017 Innocence Network Journalism Award for her investigations into convictions in Arizona and Ohio, one of which we’ll be talking about today. Together with Jordan Smith, she hosts Murder Bill The Intercept investigative podcast that you should all check out. Welcome to the show, Liliana.

 

Liliana Segura: Thanks so much for having me.

 

Leah Litman: There really is no one better to help discuss what actually happened in one of the cases that the Supreme Court decided last week. The issues in this case are technical and can end up sounding very clunky, but they are exceptionally important. So the case is Shinn versus Martinez Ramirez, and the issue in the case concerns whether you get to introduce evidence to show that your trial lawyer was crappy and your Sixth Amendment right to the effective assistance of counsel was violated when the state appointed you another ineffective lawyer during what are called post-conviction proceedings. And that second bad lawyer failed to introduce evidence that your first lawyer at your trial was crappy.

 

Melissa Murray: So we are just describing that sounds super jargony and a little abstract. So let’s try once more to explain it and use the cases to explain and explore what the issue in Shinn actually is. So the upshot of this decision is that if the state appoints you a lawyer who is constitutionally ineffective at your trial and then appoints you another lawyer who is also constitutionally ineffective, to argue that your first lawyer was ineffective, you’re basically screwed. The federal courts can’t consider mountains of evidence that your innocence or that your lawyers were ineffective and your Sixth Amendment right to counsel was violated. And this was a 6 to 3 opinion that fractured predictably along ideological lines. Justice Thomas wrote the majority for the court’s Republican super majority, and Justice Sotomayor filed a dissent for the three. Cratic appointees. Okay.

 

Kate Shaw: So that is the bottom line conclusion that the Supreme Court reached in this case. It actually reached that conclusion in a pair of cases raising these issues, one involving David Ramirez, the other Barry Jones. We’re going to spend more time on Barry Jones’s case, because that’s the case in which Liliana has done just fantastic, earth shattering investigative journalism. Let’s walk our listeners through the case, Liliana, so that all the different stages and steps become clearer. Let’s start with the trial and conviction. What was Barry Jones convicted of and what was the state’s theory of the crime?

 

Liliana Segura: Sure. So so Barry Jones was convicted in 1995 of basically, you know, the worst kind of crime imaginable. He was accused of raping and murdering his girlfriend’s four year old daughter, Rachel Gray. Rachel was living with her siblings and their mom in Jones’s home at a trailer park in Tucson called the Desert Vista. And they’d moved in about a month before. This was a place where there was a lot of poverty, a lot of drug use. It was a lot of people sort of living on the margins. And a lot of the kids there who are now adults remember spending a fair amount of time unsupervised and describing fairly sketchy individuals who lived there. Jones himself had a history of drug use and run ins with the law, but not really a history of violence. And he seemed generally sort of well-liked and well trusted by the kids. I share all of that by way of sort of set up because it becomes important for everything that happens after. But all that said, on the morning of May 2nd of 1994, Barry Jones and his girlfriend Angela wake up to find Rachel unresponsive in her bed. She’d been sick the night before and she had a head injury. Jones had said that Rachel had told him that she’d been pushed out of his van by a little boy the day before. Jones said that she seemed okay, but that he’d taken her to get checked out at a local fire station. They raced to the hospital with Rachel. She is declared dead on arrival. Basically, it’s 6 a.m. or so. She has a bunch of injuries. There’s the head wound, but also a whole bunch of bruises all over her body and most alarmingly, to the lead investigator. There’s a parent trauma to her vagina. The lead investigator does her own assessment of Rachel’s body. So the next day, an autopsy finds that Rachel died of a sharp blow to her abdomen, which actually ruptured a part of her small intestine. And this led to a fatal case of peritonitis. So this autopsy happens importantly on May 3rd. Okay. So the day after Rachel dies. But by that time, Jones has already been interrogated and accused of Rachel’s murder. In other words, before they even know how Rachel died, the lead detective has decided he was the one who killed her at trial. The state’s theory is this that that on the day before Rachel died, between the hours of around 2 p.m. and 530 or so, 530 or six, Jones had taken Rachel on a series of short trips in his van, during which he had repeatedly beaten and raped her. The head injury was explained by prosecutors as being inflicted when he beat her over the head so that he could rape her. Now, I should mention that you can see photos of the interior of this van in my first article on this case, which I wrote in 2017. There aren’t any seats in it. It’s kind of like a a work van that’s filled with these like wooden compartments holding tools. But so at trial, the evidence for this is almost entirely circumstantial. There are some people who had seen Jones with Rachel that day. He had taken her to a grocery store around the corner from the trailer park. There were also a pair of eight year old twins who, according to their mother, had seen Jones on the news after his arrest and come running to her saying, you know, we saw this man hitting a little girl while driving his van. So they were they testified against Jones, but there was really no physical evidence linking him to Rachel’s injuries, aside from some very trace amounts of blood that are, you know, really too small to kind of effectively analyze. But astrologists did testify that blood was found on the shirt Jones was wearing on the day of his arrest, as well as in the sort of around the passenger seat of the van. It’s also important to mention that a Pima County sheriff’s detective who is the lead investigator, her name was Sonya Biscuit. At the time of trial, it was Sonya Rincon. She gave some very effective but questionable forensic testimony about blood spatter evidence, how she could tell based on the blood spatter that these drops had come from Rachel’s head when Jones beat her in the van. So all of this comes in at trial. But the crux of the state’s case was based on this very specific timeline, which was testimony from the forensic pathologist who had. On the autopsy, a man named Dr. John Howard, he testified that all of Rachel’s injuries had occurred roughly around the same time and that the abdominal injury specifically had been inflicted some 12 hours before her death. So precisely within the window that the state presented as as when Jones was seen taking Rachel to do things in his van. So Jones was found guilty on multiple counts. He was found guilty by a jury, and a judge sentenced him to death.

 

Leah Litman: Jones was convicted based on the idea, as you say, that he had assaulted his girlfriend’s daughter, Rachel, within 12 hours of her death. Now, a bit of procedure to explain kind of the next stage of the case, which is under the Sixth Amendment of the Constitution. You have a right to the effective assistance of counsel at your trial. But what can you do if your Sixth Amendment rights were violated, like where the state appointed you a lawyer who was ineffective or say didn’t look into your case or did a bad job? Obviously, this isn’t a right that you can argue is being violated at your trial. That is, you can’t expect the lawyer who is currently representing you at the same time they’re representing you to argue I am currently providing ineffective assistance of counsel so it doesn’t happen at your trial. It also doesn’t happen during your appeal, which is what happens after your trial in the appellate courts. And the reason for that is technically appeals are limited to the record at your trial, i.e. the evidence that was before the trial court. But it’s usually prohibitively difficult to establish ineffective assistance of counsel and a Sixth Amendment violation based only on the evidence at trial. And that’s because ineffective assistance of trial counsel claims depend on evidence outside the trial record. The things your counsel didn’t do, what didn’t your counsel uncover? Why didn’t they uncover it? So therefore, if you want to argue you received ineffective assistance of counsel at your trial, you have to do so in what are called post-conviction proceedings, proceedings that happen in a trial court where you can present new evidence after your appeals are finished. Then the problem is, well, what if the state appoints you another ineffective lawyer during those post-conviction proceedings? So let’s go back to Barry Jones case. Jones is convicted after a trial. He appeals, he loses. Now he can file a motion for post-conviction relief in trial court. You know, does his post-conviction lawyer present any evidence that his trial lawyer was ineffective or did a bad job?

 

Liliana Segura: So the short answer is no. And here it’s really helpful to know a little bit about how this lawyer was appointed. It’s sort of an interesting history. It also feels like a slow motion disaster in the context of this case. So at the time that Barry Jones is entering state post-conviction, Arizona state legislature had actually passed a bill providing for the appointment of private lawyers for people appealing their death sentences. And this this was supposed to be managed by the Arizona Supreme Court, but there really weren’t a lot of qualified attorneys who were able or willing to do this work. You know, the pay was notoriously abysmal. I think it still is. And despite a sort of effort to find attorneys, there was just like a really sluggish and, you know, anemic response. And in response to this, Arizona watered down the requirements. They amend the rules of criminal procedure to allow the state Supreme Court in exceptional circumstances to to appoint an attorney who doesn’t technically meet the qualifications. So this exception sort of becomes the rule in Arizona, and lawyers, without the necessary experience or training, are assigned to handle death penalty cases and state post-conviction. So Barry Jones, his lawyer, is one of these attorneys. First of all, it took years for him to be assigned to the case. And by the time that he was you know, he, like a lot of these other lawyers, was not technically qualified to to represent Barry Jones here. And so he he did a few things. I mean, similar to I didn’t mention what Barry Jones is trial attorneys did. Like they kind of undertook a series of half steps in the right direction when it came to representing him at trial. I might as well mention them. They did, for example, hire a private investigator to go to the Desert Vista trailer park and talk to people. This investigator started to uncover a lot of evidence that, you know, Barry Jones was well-liked and had a good reputation. And and, in fact, it was his girlfriend who seemed to be sort of abusive. He started to put together a report back in 1994 or 1995 before the trial. But Barry Jones’s trial lawyers said that they didn’t have enough money to keep paying him, so they never used what he gathered in his report. His lawyers also contacted an independent pathologist to ask him if he would review the slides from Rachel’s autopsy to see what he might have to say about how these injuries were inflicted or when that pathologist never received these these very important materials. And so they just never followed up. They didn’t actually call any witnesses at trial, aside from Jones’s own 12 year old daughter, Brandi. So that’s the kind of stuff that, you know, a post-conviction attorney should be screaming about and sort of digging up all of the potential evidence that these trial attorneys could have, could have found. Instead, this post-conviction attorney does apply for some funding from the court, but he does it the wrong way, he under the wrong statutes, so he doesn’t get it. And later, his explanation is like, I don’t think the judge was going to grant it anyway. You know, this was the culture at the time. You didn’t get experts. You didn’t get investigators. It’s just it’s just how it was done. So so not surprisingly, he does not uncover the critical evidence that could have granted Barry Jones relief at that stage.

 

Melissa Murray: So this is sort of sedimentary. Barry Jones has a crap lawyer at trial and he has a sort of crap indifferent lawyer for the post-conviction hearing, right? So he’s been convicted. He’s now completed his post-conviction proceedings in state court. Then he gets representation from federal public defenders because the next step or stage here is to challenge the conviction by asking a federal court for a writ of habeas corpus that would overturn the initial trial court conviction. And once Barry Jones is represented by these federal defenders, his lawyers uncover all kinds of evidence that really undermine and debunk the state’s theory of the crime. So can you tell us about the new evidence that his lawyers now want to present in federal court?

 

Liliana Segura: So technically, Barry Jones’s federal habeas petition was filed like more than 20 years ago. I mean, it was filed in 2001, then amended in 2002, and they bring like 21 claims, among them some very important, ineffective assistance of counsel claims. But the most important by far has to do with his trial attorneys failure to investigate the medical evidence underpinning the state’s whole case. And crucially, the timeline, this very narrow timeline presented at trial where Jones happened to have been seen with Rachel taking trips in his van. You know, they they beginning basically around that time and over the past 20 years really are leading up to his evidentiary hearing in 2017. And they not only talked to the independent pathologists who had been who who potentially was going to look at these slides from the autopsy. But but never it was, you know, never received them. They talked to a slew of experts, including a pediatric pathologist named Janis Hoven, who’s very well known for her work in this area. And to a one, every single one of these medical experts say there is absolutely no way that Rachel’s abdominal injury could have developed in the way that the state claimed this was an injury to a very particular part of her small intestine, that that can actually be very hard to to identify and diagnose even by doctors, because the nature of it is such that it doesn’t. The sort of inflammation that follows from from a blow like this and from a perforation like this takes a while to develop. It takes a while to spread into the abdominal cavity. But essentially, you know, with some differing, you know, opinions. But like that, the takeaway was that these experts said that this injury had to have been inflicted like two days before she died, possibly longer. This is a huge deal, right? Because if Jones’s jurors had had heard this at trial, they would have had it was the very definition of reasonable doubt. You know, it’s very unlikely they would have just bought the state’s case in its entirety the way that they did. So that’s the most important evidence that was uncovered by Jones’s federal public defenders. And it really takes until 2017 for them to have an opportunity to present it in court, because up until then, the failure to develop that evidence by Jones’s post-conviction attorney meant that he couldn’t bring it to any court anywhere.

 

Kate Shaw: Right. Okay. So we have this new evidence that would establish that Jones received ineffective assistance at trial. His lawyers did a piss poor job in not uncovering the evidence that you’re describing, and that definitely affected the outcome of his proceedings. So then to go back to the procedure a little bit. So in federal court, he faces two obstacles to having a court overturn his conviction on the ground that his Sixth Amendment right to counsel was violated. Right. So one is that he didn’t raise that ineffective assistance of trial counsel claim in state court. And the second is that because he didn’t raise the ineffective assistance of trial counsel claim in state court, he didn’t introduce the evidence that he now wants to present to federal court about how his lawyer was ineffective. So this is not evidence that was presented to the state courts for the reasons we have just walked through.

 

Melissa Murray: So. Let’s start with the first obstacle, then, that Jones didn’t present this ineffective assistance of trial counsel claim in state court. Usually, if you didn’t raise a constitutional claim to challenge your conviction in state court, you can’t then raise the claim later in federal court to overturn your conviction. But in an important pair of cases, the Supreme Court said that there is an exception to that rule. You can raise an ineffective assistance of trial counsel, claim that your trial lawyer was bad. If you establish that the reason why you didn’t raise that claim is because the state appointed you an ineffective lawyer during your post-conviction proceedings. So let me say that again. In a pair of cases, Martinez versus Ryan and Trevino versus Thaler, the court says that even if you didn’t raise your Sixth Amendment claim in state court, the federal court can hear the claim if you establish that the state appointed you an ineffective lawyer in post-conviction proceedings who failed to argue that you received an ineffective lawyer at trial. And the reason why that is, is because you’re not at fault when the state appoints you multiple ineffective attorneys and maintains a system in which it is impossible to enforce your Sixth Amendment right to counsel. That’s why a federal court can hear a Sixth Amendment claim that you didn’t raise in state courts because you’re not at fault for failing to raise that claim when the state appointed you a bunch of crap lawyers. That’s what the court said in Martinez and again in Trevino.

 

Leah Litman: And now we get to the second question, which is the question the Supreme Court answered in Cheyenne. And that question is, do you get to introduce any evidence to support your claim that you received ineffective assistance at trial? That is, if the reason why you didn’t introduce any evidence to show that you received ineffective assistance at your trial is because the State appointed you an ineffective lawyer during your post-conviction proceedings who didn’t introduce any evidence to show you received ineffective assistance at trial. Can a federal court hear that evidence? Shinn said, No. You don’t get to introduce new evidence in federal court, including evidence establishing your innocence. Where the reason why you didn’t present that evidence in state court is because the state appointed you another ineffective lawyer who failed to introduce that evidence. Yes, the court really held that if you are sentenced to death because your state appointed lawyer did a bad job, that’s your problem and your fault. And the court holds that it is illegal. It is unlawful for a federal court to hear evidence that your lawyer did a bad job and you may be innocent. When we broke down the oral argument in this case, we focused on how the lawyer representing Arizona triumphantly and explicitly claimed, quote, innocence is not enough to get a federal court to hear evidence that your rights were violated and the state appointed you multiple bad lawyers. Let’s just play those clips here.

 

Speaker 2 That no fact finder could have found. The prisoner guilty is not enough. And from Congress, his point of view, even innocence is not enough because that only satisfies BS.

 

Leah Litman: And this is the argument the court bought, like hook, line and sinker. Liliana, you you actually wrote a piece describing the experience of Barry Jones’s family listening to this argument and those claims. Can you share a little bit about that?

 

Liliana Segura: Yeah, you know, thank you for bringing that up. It took me a little while, actually. It was not really until last year that I got in touch with Barry Jones’s daughter, Brandi. Brandi again was the sole witness on her dad’s side at trial. She was 12 years old, deeply traumatized by that experience, and really went on to have just like a really difficult time. She had drug problems. She actually went to prison herself. She was actually incarcerated at the time that the judge in her dad’s case overturned his conviction in 2018. Yeah, she she remembers getting the news when she was in the prison yard. And she had been she had lost touch with her dad years before. This is really common in death penalty cases. Family members become really fragmented. There’s a lot of trauma. But anyway, when I first talked to her, she had she described how soon after she got out of prison. She was very excited at the prospect of her dad coming home. You know, as I’ve gone back to revisit my own coverage. I also was sort of optimistic that he was going to be retried because the order said in no uncertain terms that Arizona had to release or retry Jones, initiate trial procedures basically within 45 days. And he actually came quite close. He was actually transported from Florence, Arizona, to Pima County to the county jail. He was appointed a lawyer for his his retrial. And then all of a sudden, everything ground to a halt. There was a hearing that was canceled. The state basically made clear that it was not going to let this go. And they appealed and appealed and appealed until they won. Which is it? I mean, not to get too ahead of ourselves, but essentially I talked to Brandy about what it was like to see that. And because the case by the time it got to the Supreme Court was so technical, you know, she relied on on one of her siblings to try to break it down for her. But it was pretty technical for him. It’s pretty technical for anyone, including lawyers. So so when I wrote that particular piece, you know, she described and another family friend described how they all got together in Tucson at this one home. And and to listen to the argument and how, you know, frankly, most of it was over their head. But but that one refrain was pretty clear, which is Arizona insisting innocence isn’t enough, innocence isn’t enough, which to anyone, even when you know a lot about this court, it’s really horrifying and galling. And she was hearing this about her own dad.

 

Melissa Murray: Can I ask a question about that? Liliana Just to back up and I think it’s relevant because of the way that Justice Thomas opens this opinion and the sort of vignettes that he shares that it’s worth coming back to this it Brandi was the sole witness for her father and her failure to provide testimony that was sufficient to acquit him really weighed on her. And you suggest in some of your reporting contributed to sort of the slow evolution that she experienced in the wake of all this, her run in with drugs, her time in the prison system, like more than one life was destroyed in this trial. Can you say a little bit more about just the collateral effects of this? Like you mentioned, families being fragmented in death penalty litigation. Can you say a little bit more about just sort of the actual effects of being part of the system that ultimately winds up convicting your father?

 

Liliana Segura: Oh, yeah. I mean, it’s it’s it’s actually overwhelming to contemplate. You know, Sister Helen Prejean said something years ago that always sticks with me. She says, you know, every human being, every person is a universe. Right? That like one person has so many people they’re connected to. And I think about that a lot. And every time I write a piece like this, because on paper, Barry Jones was a guy who was sort of living on the margins, had issues, you know, on paper, looked terrible, not to mention the accusation that had been made against him. But in the years I’ve been reporting on this case and after his conviction was overturned, actually, I’ve met a lot of people who who knew him. Then I met his ex-girlfriend, whose daughter Alicia. Had had written letters to him back and forth when he was in jail awaiting trial. She actually showed up with her mom in court in Tucson at one of the hearings after his conviction had been thrown out. Where where the state was was starting to argue against that outcome. And they hadn’t seen him in decades. And that the way that they they came to realize that he was going to be in court because they found they found my articles. They realized his conviction had been overturned. And they sat there listening to the state say, well, it doesn’t matter. It doesn’t matter any of the evidence that came out and that this judge has deemed, you know, this case unconstitutional. They watched as the state said, well, we want to we should be able to execute him anyway. And I went out with them afterwards to a McDonald’s nearby. And and they talked about how Alicia was especially moving. She was a kid. She was about 12 or 13. And Barry Jones wasn’t technically her stepdad, but at the time she had that kind of relationship with with her. And the way she described it, you know, he he was very protective of her. He would discipline the kids, but in ways that were fairly benign. You know, he caught her smoking a cigaret and she had to go read a book. He caught her kissing a boy and he said he’s going to ground her for life. But it ended up being a day, you know, just the sort of typical things that you encounter as a step parent or as a step kid. But anyway, she she had so much trauma from this event that she had sort of blocked out. And every once in a while she would check the Arizona Department of Corrections website to see if it was possible that he’d already been executed. And she was always relieved to find that it said he was still alive, basically. And so, you know, a lot of people, they just move on because it’s too painful to be proximate to these cases. But in the experience of getting to know some of the people, including Brandi, it’s like all of them have carried this in some form or other for years. And in Alisha’s case, she has so much guilt in her mom has so much guilt for the fact that they fell out of touch with Barry Jones after this happened.

 

Leah Litman: As we’ve been saying, you know, when Barry Jones got to federal court, he was appointed these federal public defenders who sought to introduce evidence on his behalf and sought to overturn his conviction on the ground that he had received ineffective assistance of trial counsel. They persuaded a federal district court, a trial court, that they were right and that his conviction was indeed unconstitutional because of all of this evidence that they had uncovered. The state appealed, as Liliana, you’re suggesting, you know, after the district court ordered a new trial, you know, there was some uncertainty about whether that new trial was going to happen immediately. The state appealed the district court’s decision ordering the new trial, but the U.S. Court of Appeals for the Ninth Circuit said, no, the district court is right. This conviction is unlawful and we know it’s unlawful based on all of this new evidence that the federal defenders presented and uncovered. And so it was that decision, again, that his conviction is unlawful on the basis of this new evidence that the Supreme Court was reviewing and reversed. So in a lot of ways, you know, just to describe the conclusion and holding of this case is to criticize it. But this opinion is about as horrible and I think as specious as it could be. And so I want to get a little bit more into it. So you can just start with the opening, frankly. You know, Justice Thomas, who wrote this opinion, began it by stating as facts that Barry Jones, quote, repeatedly beat his girlfriend’s four year old daughter. But as Bob Loeb, the lawyer who argued the case for Barry Jones and David Ramirez said, that’s like not true. That is the point of contention in this very case. Like the federal courts found evidence relied on by Arizona to tie Jones to these injuries was flawed and scientifically unsound for federal judges. On two different courts concluded there was a reasonable probability Johnston commit the crime for which he was sentenced to death. It’s just infuriatingly dishonest in its opening and description. And then this the court buries in a footnote, perhaps feeling some sense of shame about what it is about to do. Because until Arizona gets to the Supreme Court, Arizona didn’t argue in one of the cases that the federal courts couldn’t consider evidence that hadn’t been introduced in state court because the state had appointed the defendant ineffective lawyer. So let me say that again throughout the federal court proceedings in these cases, Arizona’s lawyers failed to raise the argument that federal statutes barred an evidentiary hearing in these cases. So how did the court view that like omission or error on the part of the lawyers for the state? They treated it as completely. Forgivable. You know, in a footnote, they say we have discretion to forgive any forfeiture. We choose to forgive the state’s forfeiture before the district court, because if a state’s lawyer messes up, the court can and will forgive it. But if the defendant’s lawyers who were appointed by the state messed up, apparently like nothing a court can do, and it’s actually illegal for a court to do anything about it. Yeah. So and now I guess we get to the meat of the opinion, which is kind of the court’s statutory analysis. But I think it’s also important to note how Justice Thomas frames this case in another way, which is how he characterizes the idea that a defendant would get to introduce evidence that the defendant is innocent and that their rights are being violated because the state appointed them an ineffective lawyer. Justice Thomas describes again introducing evidence that the state violated your constitutional rights and evidence that you are innocent as, quote, an affront to the state and its citizens.

 

Kate Shaw: It is pretty wild to suggest that it is an affront to the state to introduce evidence that someone the state convicted is innocent. And yet that is what Thomas seems to be positing. And it’s an idea that kind of persists throughout the opinion. Right. In order to show the trial counsel was incompetent, the federal defenders in this case demonstrated the vast evidence that could have been quickly found by competent counsel to eviscerate the state’s case. And Thomas seems to view the vastness of the evidence of innocence in exactly the wrong way. Right in as wrong a way as conceivable right. The vastness of the evidence, he says, establishes how unduly burdensome to the state it would be to consider this evidence, rather than creating the obvious inference that the evidence has to be considered.

 

Liliana Segura: I found that footnote well, maddening, but also confusing. Like I think you highlighted. It was just in Ramirez’s case because because part of the crazy making experience of reporting on this case after Jones’s conviction was overturned was seeing Arizona peddle this really bizarre argument about how the Antiterrorism Effective Death Penalty Act should foreclose on, you know, the opportunity to to present this evidence and to hold an evidentiary hearing in Jones’s case. I mean, that was brought at every stage prior to the evidentiary hearing. And then afterwards, in very Jones’s case, like they said, this hearing should never have happened. First of all, it shouldn’t happen then. It should never have happened. All that evidence is null and void. And that’s literally what this opinion does. And that having attended the evidentiary hearing, having seen the evidence that came out it, I can’t get my head around the fact that that no longer is valid, that Judge Burgess’s findings have been essentially nullified by this opinion. It’s it’s crazy making. At one point I attended the Ninth Circuit oral argument before a three judge panel in 2019 where one of Arizona’s attorneys argued this position. And the and the panel was like, What the fuck are you talking about? I mean, these judges were not like necessarily liberal judges, you know, but they seemed unable to wrap their head around this notion that, like, you should be allowed to develop evidence to bring a claim, but then not allowed to prove that claim on the merits. You know, that they were like, that makes no sense. They called it one of them called it a catch 22. So so that argument has been sort of like evolving. And for a while I was told it was like this fringe argument and the lawyers were like, it doesn’t make any sense. It’s not valid. And here we are, you know, here we are. And it’s just it’s crazy making. But that Ninth Circuit oral argument, I mean, I watched it over and over again to try to understand what was going on. It’s sort of worth watching, frankly.

 

Leah Litman: I mean, it is a fringe crazy making argument. It is an argument that the Supreme Court just adopted that had not been adopted by any single federal court anywhere in the United States. And in 2017, you know, when the state started to make it, it was fringe. It was insane. Right. And then Donald Trump happened to the federal courts and all of these fringe crazy making off the wall arguments became in vogue and like intellectually sophisticated and like, oh, I’m just carefully analyzing the statutes, text it. It is enough to drive you mad and to see this happening in real time. In these cases, it’s just horrible.

 

Liliana Segura: There’s a part of the decision where Thomas talks about, you know, this affronts affront to the citizenry language, including essentially the jurors who who serve at trial and at these outcomes. You know, federal courts have no business interfering in this. I talked to jurors from from this case. My first case opens with one of the jurors who is who actually died in recent years. And over the years, I kept in touch with her and she was haunted by this case. She could not get over the fact that she had played a role in sending Barry Jones to death row and she was deeply disturbed and said she had lost faith in the justice system as a result. And so it’s just so ironic and disgusting and disingenuous to read, you know, that these state outcomes cannot be interfered with in the name of these, you know, noble jurors.

 

Melissa Murray: This was, I guess, a sort of greatest hits of Justice Thomas says things about habeas and the criminal justice system. But I wanted to point out another snippet. And technically, Justice Thomas didn’t say this. It was Justice Scalia who actually said it. But Justice Thomas joined in this opinion that Justice Scalia wrote, and Justice Scalia said, this court has never held the Constitution, forbids the execution of a convicted defendant who has had a full and fair hearing, but is later able to convince a habeas court that he is actually innocent. All right. So let that wash over you.

 

Leah Litman: You mentioned the catch 22. I think part of, you know, getting at what is so crazy making about this case is to kind of poke it how nonsense it is as a matter of law. You know, first is what it does to precedent. You know, Melissa mentioned the prior cases, Martinez and Trevino, that said even if you didn’t raise your Sixth Amendment, ineffective assistance. So trial counsel claim in state court, the federal court can hear that claim if you establish the state appointed you an ineffective lawyer in post-conviction proceedings. And those cases said your failure to raise the Sixth Amendment claim is excused by the state, appointed you an ineffective lawyer in your post-conviction proceedings. Now Shinn comes along and says, Sure, a federal court can hear your Sixth Amendment claim. They just can’t consider any evidence to substantiate that claim. It’s this Kafkaesque Franken law. Down is up logic. The very thing that excuses you from failing to raise the claim, the ineffectiveness of your post-conviction lawyer is what prevents you from winning the claim and for presenting any evidence. It makes no sense. It is nonsense.

 

Liliana Segura: Barry Jones, his lawyer, when I talked to him the day after the opinion, which was a sad conversation, he was really and this is the longtime public defender who’s been representing him for years, not not the lawyer who argued before the court. But, you know, that’s exactly what he said about it. When he brought himself to read the opinion. He said, it’s Kafkaesque and cruel, frankly. The other thing I guess, you know about the opinion, Tom, is just strike such a disdainful, sort of contemptuous note about the very notion that this hearing should have happened. That and it just really reminded me of the posture of Arizona’s attorneys who who just sort of at every turn when would would write in these filings that like describe the evidence you’re hearing in the evidence of Barry Jones had developed as like somehow it’s just like overwhelming and ridiculous. Like now he’s got this like a fancy legal team that’s well, well-paid, and they have resources just as if it’s like completely outrageous that such a man would have an opportunity to avail himself of his Sixth Amendment rights, which is really at the heart of this this opinion. And it just really brought all that back reading this opinion.

 

Kate Shaw: To turn for a minute, maybe to the text of Ed Barr, write this, the part of the statute that’s at issue here. The language there, I think, is also like completely misunderstood, misrepresented by Thomas or at the statute says if a litigant failed to develop the factual basis of a claim, then they generally can’t present new facts to federal court. And Justice Thomas is somehow like, well, you failed to develop the factual basis of your Sixth Amendment clean because it is your fault. The State appointed you an ineffective lawyer despite having, I think, said something totally different in the prior cases. But somehow it’s like, oh, boom, lawyered. Like what? Doesn’t make any sense the language of the statute and how it has been interpreted, right? In a prior case, Michael Williams, the Supreme Court said that a litigant hasn’t failed to develop the factual basis of their claim if they were not at fault for failing to develop the factual basis of their claim. Again, the court has had failed to develop the facts means you’re at fault for failing to develop the facts. And the court has said you are not at fault for failing to raise your Sixth Amendment claim when through no fault of your own, the State appointed you an ineffective lawyer to raise that claim.

 

Melissa Murray: Just keep talking, Kate. And they’re going to make it unconstitutional to appoint lawyers because it would violate the sixth amendment.

 

Kate Shaw: That’s where we’re at.

 

Melissa Murray: Like seriously. Shut up. Stop talking.

 

Kate Shaw: The only conclusion.

 

Leah Litman: I mean, checkmate libs. You want to talk about being lawyered, right? Yeah. No lawyers for poor people. That’s stage two. Deregulatory two step, can’t introduce evidence. Don’t get a lawyer.

 

Melissa Murray: I’m only slightly kidding.

 

Kate Shaw: They can’t be ineffective if they don’t. If you don’t have one.

 

Melissa Murray: There you go. All right. This seems as good a point as any to raise the defiant dissent from justice.

 

Leah Litman: The only sane justice writing in this case sorry.

 

Melissa Murray: A defiant dissent from Justice Sotomayor. So she explains, by definition, Jones and Ramirez are not at fault for their post-conviction counsel’s failures to develop evidence, Jones and Ramirez acted diligently, but their attorneys errors, paired with the state’s choice of how to structure their review proceedings, constituted external impediments. As a result, Jones and Ramirez have not failed to develop the factual bases of their claims and added per section 2254 E.2 Properly interpreted poses no bar to evidentiary development in federal court. Yeah.

 

Leah Litman: Yeah. I mean, she calls the decision perverse, illogical, saying it makes no sense. She does, however, respectfully, dissent.

 

Melissa Murray: Why? Why?

 

Leah Litman: Yeah, small one note. One note on the dissent. Just strike that respectfully part out. Sonia, just.

 

Melissa Murray: I think you know what she’s probably like. There are other places where I do not respectfully dissent that are coming down the pike. And so.

 

Leah Litman: That’s totally fair but like when the court is eviscerating and nullifying a constitutional right every day.

 

Melissa Murray: I know.

 

Leah Litman: What’s one more not respectfully dissent gonna do?

 

Melissa Murray: But Leah, we’re not living there. I mean, like, this is her job. She’s got to be with those people for the until the end of time. Like, you’ve got to find a way to live with them.

 

Leah Litman: That’s always xanax and vodka for. Right? Not respectfully dissents.

 

Kate Shaw: We got a care package coming that just gets you through the end of the term. Ladies, to the upshot of this Kafkaesque opinion. If you’re sentenced to death because your state appointed lawyer did a bad job, that is your problem and your fault. And it is illegal for a federal court to hear evidence that your lawyer sucked and you may be innocent. And this actually has much broader implications for the Sixth Amendment right to counsel. Ineffective assistance of trial counsel claims. Depend, as Leah said earlier, by definition on evidence outside the record, you cannot enforce your right to effective assistance unless you have a serious lawyer who will investigate and present evidence to support your claim. And the court here holds. You can have your claim heard in the abstract, but you can’t introduce any evidence to support that claim, which means you can’t actually have your claim heard at all. And the fact that these cases. Right, Barry Jones, we’ve been talking about David Ramirez, who we haven’t been talking about, who may not even be eligible for the death penalty because he may be incompetent. Just make clear how horrible this decision is. But the reality is that there are many more Barry Jones’s and David Ramirez’s. The Innocence Project has found that a leading cause of innocent convictions is ineffective assistance of counsel, the very right that the Supreme Court has basically made it well-nigh impossible to enforce, at least in some areas. All right. Well, that’s a grim place to end. Liliana, any concluding thoughts? They don’t have to be uplifting ones.

 

Liliana Segura: I guess. Just a couple of things. I’m going to publish a piece on this, but I did have a chance to talk to or text with Brandi Barry Jones, his daughter, after the opinion. And she wasn’t up for talking because she said she couldn’t talk about this without crying and she was actually going to go have her first visit with her dad this weekend. She hasn’t visited him in all the time that he’s been on death row. And that is obviously heartbreaking. It’s just another reminder of the collateral damage, as we sometimes put it when it comes to these cases. I guess the other only other thing I wanted to mention is there’s just there’s so much more to this case. And, you know, if you want to know the sort of like just how deep the rot goes, you know, you can you can look at this series that I wrote. If somebody had told me back in 2017 that this is the way that this case would go, I never would have believed it. It’s truly surreal and it’s been hard to to accept. But hopefully I’ll have a chance to continue writing about it because it does have implications for for everyone.

 

Leah Litman: Liliana, thank you so much for joining us and for all of your work, you know, on this case in the criminal legal system more broadly. Listeners definitely check out Liliana’s writings on this case and others. So thank you again.

 

Liliana Segura: Thank you.

 

Leah Litman: So that concludes our segment of which constitutional right that the Supreme Court eliminate this week. This is part of why I am always screaming about habeas and wonky procedural stuff. Like it is really important. And the stakes are, you know, they couldn’t be higher here. I also did want to connect this case to something I’ve observed in recent hearings on judicial nominees in the Biden administration, which is Republican senators interest in going after criminal defense lawyers, including criminal defense lawyers who focus on wrongfully convicted people and innocent people. So here we’re going to play a clip of Senator Ted Cruz from Cancun attacking Nina Morrison, who has been nominated to serve on a district court for New York for advising, quote, radical district attorneys who let violent criminals go. Nina is a lawyer for the Innocence Project. Innocence.

 

CLIP Ted Cruz: Why do you keep advising radical district attorneys who let violent criminals go and result in homicide rates skyrocketing? Do you care about the innocent people being killed because of the policies you’re implementing?

 

CLIP Nina Morrison: Absolutely, Senator. And to clarify, my role in those transition committees were only on the issue of what’s called conviction integrity, not the front end prosecution policies, but on the review of old cases. That is the limited capacity on which I worked. I played no role in formulating the front end policies. But it is because when the wrong person is convicted of murder the person who’s actually committed the crime isn’t brought to justice.

 

Leah Litman: Josh Hawley has said he’s going to oppose her nomination because she’s quote, soft on crime. And I just think this like willingness to sign off on convictions of the innocent people, like that’s part of what Republican senators are telegraphing like they are looking for in judicial nominations and lawyers through these hearings. And it’s just appalling to watch. Like, again, like they’re conveying like this is now the position of our political party. And they are creating effectively, I think, like an understanding among the conservative legal movement that like this is just how we think the judicial process should work.

 

Kate Shaw: Yeah, I think that as both everything that Liliana was saying about the ripple effects of a case like this and those excerpts make clear this. Is eminently worthy of attention and concern in this case, the set of issues, despite feeling like both kind of substantively difficult law and applicable to a narrow class of individuals like the implications are much, much broader. So it’s really important to highlight it.

 

Leah Litman: [AD].

 

Kate Shaw: Okay. So good news. We now have a palate cleanser to discuss, an unexpectedly delightful surprise, namely the opinion in the arbitration case we previewed. Morgan versus Sundance.

 

Melissa Murray: Let’s just pause for a minute, like, our gains will be found in arbitration. Who would have thunk it?

 

Kate Shaw: I’m afraid people are going to stop listening. But no, this case is important and interesting and we should call it something other than arbitration.

 

Melissa Murray: We are literally wringing victories out of arbitration. I love this for us.

 

Kate Shaw: This is a case about Taco Bell. I feel like that’s going to make it sound more interesting. But but this is a case that we previewed. It was argued by Carla Gilbride from Public Justice. As we said when we previewed it, she was unbelievable. Listen to the oral argument. It’s a master class. And she pulled off, I guess, maybe not surprisingly, because she was so good. A very rare feat at the court, a unanimous win in an arbitration case for a plaintiff.

 

Melissa Murray: Knock me down with a feather. Okay. So as a reminder, listeners, the case was brought by a former Taco Bell employee who argued that Taco Bell violated federal law by failing to pay required overtime. The employee, Robin Morgan, sued Taco Bell in federal court and Taco Bell defended against the lawsuit in multiple stages, first filing a motion to dismiss and then seeking mediation. And only after Taco Bell lost on its motion to dismiss and mediation proved unsuccessful, did Taco Bell say, hey, actually, you can’t sue us in federal court at all because as part of your employment contract, you agreed to arbitrate claims against us. All right. So for those who don’t know, arbitration proceedings are more informal proceedings before an arbitrator, not in federal court. So they’re sort of extrajudicial, kind of alternative dispute resolution forum for these kinds of claims. And they’ve received a lot of discussion over the last couple of years because they’re often a standard feature of employment contracts, this arbitration only of any disputes between the employee and the employer. And many people have argued that this is unfair to employees who might get a better shake in federal court.

 

Leah Litman: Okay. So Taco Bell filed a motion to require arbitration so that Morgan’s claims couldn’t be heard in federal court. But under the usual rules of litigation, you’re not allowed to bring up this argument so late in the game about how you shouldn’t be in federal court at all after you’ve been defending on the merits in federal court.

 

Kate Shaw: But except if you’re the state in the death penalty case.

 

Leah Litman: Right. Exactly. Then you’re allowed to just pull one out of your hat at any stage, including insane, crazy making arguments that will sentence an innocent man to death.

 

Melissa Murray: Vibes and law.

 

Kate Shaw: That’s law.

 

Melissa Murray: And vibes. Vibe law.

 

Leah Litman: Yeah those ugh pro executing the innocent vibes, anyways. Back to our palate cleanser. The U.S. Court of Appeals for the Eighth Circuit doesn’t apply those usual rules to arbitration cases. Instead, it says you not only have to show that the party acted inconsistently with their right to arbitrate by, say, litigating in federal court, but also that that prejudiced the plaintiff. And here the court said requiring Morgan to arbitrate the claim would not prejudice her.

 

Kate Shaw: So in this case, Justice Kagan, writing for a unanimous court in a breezy, tasty nine page opinion, said The Eighth Circuit can’t do that. It has to apply the normal rules of litigation, not special pro arbitration rules to all cases, even those that involve arbitration. And because the normal rules are that a party waives their rights by acting inconsistently with them, the eighth Circuit can’t add an additional requirement in a case like this involving arbitration that a plaintiff also has to show prejudice. Carla Gilbride Justice Kagan Taco Bell winning combination.

 

Leah Litman: I think they’d be a winning combination at Denny’s too. Just to be clear,.

 

Kate Shaw: Yeah,That’s right that that the two ladies involved are the most important ingredients.

 

Melissa Murray: So one of the reasons why this opinion seems so remarkable is not that it’s wrong. It’s exactly right. It’s just that the Supreme Court had seemingly fashioned special rules that preference arbitration. So, for example, the Federal Arbitration Act doesn’t allow states to enforce typical contract offenses like unconscious ability. That was in a case called AT&T versus Concepcion. So the hope is that this language that Justice Kagan has put in this opinion puts a stop to or at least really limits the degree to which this court can fashion special arbitration, favoring rules which, by the way, nearly always were down to the benefit of large corporate interests and against the interests of employees and consumers. So this is why Kate thinks this is a palate cleanser, right?

 

Kate Shaw: Yes, we can debate that. Let me just read a couple of sentences from the Kagan opinion, which I think are, you know what they mean. In the next arbitration case, I think very much is to be seen. But she says, and has unanimous court for all this language, the FAA’s policy favoring arbitration does not authorize federal courts to invent special arbitration, preferring procedural rules.

 

Melissa Murray: So can I ask you, do you think that they are also busy trying to Nancy Drew the leak that they missed this?

 

Kate Shaw: Entirely possible .because the language is so hard to square with the court’s steady trend of authorizing federal courts to invent special arbitration, preferring procedural rules.

 

Leah Litman: On the basis of policy and not text.

 

Kate Shaw: Nope. Policy a policy favoring arbitration. So it is it is difficult to square this language with some with some of the courts arbitration cases like Concepcion, which you mentioned, Melissa. But what the court then she goes on to say, the courts must hold parties to arbitration contracts, just as courts would do any other kind. A court may not devise novel rules to favor arbitration over litigation. So, you know, maybe this is dicta and it’s a narrow case.

 

Leah Litman: Look at how excited our little optimist is about some sentences in a nine page opinion.

 

Melissa Murray: So so can you can you can you imagine, like the writing of this? Like so Justices Breyer and Sotomayor keeping watch at the door. Justice Kagan at her computer like. No, I think the leaks over there are further down, guys. Further down. Justice Kagan put it in. Put it in, like. Like. Is that what happened?

 

Kate Shaw: I mean, look, is it possible they said, like, it doesn’t matter because we will do what we want in the next arbitration case anyway. But I actually think from the perspective of the lower courts who have been take you would take, of course, their marching orders from the Supreme Court and have basically understood the FAA to create a mood that way transcends its text. That is basically we’re going to read every procedural and maybe even substantive rule under the sun to favor forcing people into arbitration. Lower courts are not going to be able to do that.

 

Leah Litman: You think this is gonna reign in the fifth circuit?

 

Melissa Murray: That’s what I was going to say. You think, Jim Crow is not gonna be like this is dicta. This is dicta

 

Kate Shaw: I said most lower courts.

 

Leah Litman: Not so confident about the fifth not so.

 

Melissa Murray: Sixth.

 

Leah Litman: Confident about the 11th. Yep, probably not the sixth. Probably not the eighth. So maybe in the second and the ninth circuits, on a good day.

 

Kate Shaw: Where are they would probably find a way.

 

Melissa Murray: Who are going to have a good time anyway.

 

Leah Litman: But. But, like, you know, I agree with you, right. Like, this opinion is right. It has this wonderfully accurate and wonderfully like disciplining language in it. And I just have no faith in this court’s willingness to take seriously like what it has written in prior cases when that’s inconvenient to what they want to do.

 

Melissa Murray: But it was a rare moment.

 

Kate Shaw: You guys are stealing my brief flash of joy. Just. I hope you’re happy with yourselves.

 

Melissa Murray: That’s what we do. We’re thieves of joy, Kate.

 

Kate Shaw: Well, okay. We were going to turn back to grimmer news anyway, so.

 

Melissa Murray: Speaking of the Fifth Circuit.

 

Kate Shaw: I mean, we should save maybe a longer discussion of this for another day because we’re already running along. But I just feel like we would be remiss if we did not at least briefly mention a pretty insane opinion out of the Fifth Circuit in a case called Jacuzzi versus SCC holding that the structure of the SCC, the Securities and Exchange Commission, is unconstitutional in three distinct ways. Right? So, one, by allowing agencies to choose administrative adjudication or pursue enforcement in federal court, there’s a violation of the non delegation doctrine. As it is also released, these particular administrative law judges that oversee these administrative enforcement proceedings are unconstitutionally either appointed or shielded from removal, free from the consideration of politics, that that’s a violation of the take care clause. And that may be the implication of this. Part of the opinion is that most or all federal government workers have to be removable and may be appointed all at will by the president, which is truly terrifying, finally, that the SEC’s power to impose civil penalties violates a constitutional right to trial by jury. All of it seems completely unhinged to me. Who knows what SCOTUS would do with any of it? I would not take any bets on this. Nope. Hmm. Cool. All right. Well, I presume it’s going to go up and we will have plenty of time to go much deeper on it.

 

Leah Litman: I mean. I mean, in some ways, this is like a dare to the Biden administration. Like, who do you fear more? The Fifth Circuit or the Supreme Court? And it’s just not entirely obvious what the answer is there.

 

Melissa Murray: Moving on, there are some Ginni Thomas odds and ends that we should discuss. Odds and ends, how I’m characterizing it now.

 

Leah Litman: Emphasis on the odd and the end of democracy.

 

Melissa Murray: Since we last recorded The Washington Post broke the news that Ginni Thomas sent emails to Arizona election officials asking them to overturn the results of the election and submit a slate of fake electors who would support Donald Trump. And if I like, does it feel like this news always breaks late on a Friday, just after we record? So we always get it a little late?

 

Leah Litman: Yes, yes.

 

Kate Shaw: Yeah. They’re doing this on purpose obviously.

 

Leah Litman: Yeah.

 

Melissa Murray: Some have noted that these emails are sort of form emails that get sent from like, I don’t know, a Ginni Thomas bot or something, but it’s definitely sent from some kind of official email associated with her, whether it’s her personal email or something that’s sending out form emails from her, whatever her business enterprises. Like that’s a whole different thing.

 

Kate Shaw: Is it exonerating if it’s a bot?

 

Melissa Murray: I just feel like, I’m just, I’m just trying to be fair and cover our bases like to be.

 

Leah Litman: Who doesn’t have a little bot email that just sends out emails asking legislators to overturn the results of an election. Right? Like you guys don’t have a second phone, the does that?

 

Kate Shaw: Who among us?

 

Leah Litman: No? No? These emails are fascinating, in part because they embrace something that is related to the independent state legislature theory, a theory that.

 

Melissa Murray: Slash fantasy.

 

Leah Litman: Slash fantasy, a theory slash fantasy that her husband, Justice Thomas, has pushed on the Supreme Court. But in this, like, iteration or like warped version of it, it would allow state legislators to disregard the will of the voters and decide who wins an election. And that would mean like more or less that the Constitution permits state legislative coups here, like the parallelism between Ginni’s advocacy and her husband’s legal views is quite striking. So Dahlia Lithwick and Mark Joseph Stern at Slate have a wonderful piece about this, because at the same time that Ginny is asking state legislators to appoint a slate of electors, her husband is pushing the theory that would make state legislatures more independent from other state and federal institutions. You know, in constructing the law regarding federal elections.

 

Melissa Murray: Coucou Coutu Mrs. Thomas.

 

Kate Shaw: I think we just got to read a couple of lines from her emails, including we will get to the signature line in a moment. But the substance of these emails drafted by her own hand or just her trusty but who knows? But one of them reads, Please stand strong in the face of political and media pressure. Right. This is an email to an Arizona legislator. Please reflect on the awesome authority granted to you by our Constitution, and then please take action to ensure that a clean slate of electors is chosen for our state. Article two of the United States Constitution gives you an awesome responsibility to choose our state’s electors. Yeah, I mean, this is like a blueprint for a coup, is what you’re saying. Does it matter what the people have done or chosen you under the federal constitution? Have the power unilaterally to choose where the electors from the state of Arizona go.

 

Melissa Murray: These emails are sent to various Arizona legislators, including Shawna Bolick, who is an Arizona legislator who is first elected in 2018. She is notably married to Clint Bolick, an associate justice of the Arizona Supreme Court, who worked with Justice Thomas early in his Clint Ballocks career and has said that he considers Justice Thomas a mentor. Shawna Bolick was among dozens of Arizona lawmakers who signed on to a letter to Congress calling for the state’s electoral votes to go to Trump or quote unquote, be nullified completely until a full forensic audit can be conducted, end quote. Shawna Bolick is currently running for secretary of state in Arizona. Dun dun dunnnn.

 

Leah Litman: Can we also talk about her email signature now?

 

Melissa Murray: Okay. Go go to her signature. What’s her official signature?

 

Leah Litman: Ahem and I quote, sent from Ginni’s iPhone, a byproduct of entrepreneurial free market capitalism, period. Competition, hard work innovations and lack of government interference make great things possible. Exclamation mark. God bless America. Exclamation mark.

 

Melissa Murray: I’m not going to say it, but Ginni’s iPhone was made in China. Like, right.

 

Leah Litman: Just talk about extra. Like, this is the definition. One other quick thing to note, which is the Supreme Court received a very unusual petition for rehearing in Cummings versus premier rehabilitation, a case we summarized when the court released an opinion holding that there are no damages for emotional distress available for violations of the Rehabilitation Act and Affordable Care Act. Prohibitions on discrimination. That opinion was six three by the Chief Justice for the court’s Republican appointees. Now the petition for rehearing comes in and says the premise for the court’s opinion is incorrect because the court’s opinion had said, quote, The statutes at issue are silent as to available remedies. It turns out, however, that the statutes were amended in the Lilly Ledbetter Fair Pay Act of 2009 to explicitly include a reference to another federal statute, Section 1981, that expressly permits compensatory damages for emotional pain and mental anguish. And yet the court, the concurrence and the dissent didn’t consider the fact that actually the Rehabilitation Act isn’t silent as to remedies because it incorporates those remedies available under that other federal statute. So just again, to like, say, the text of the statute, it says the remedies, procedures and rights set forth in Title six of the Civil Rights Act and in subsection E3 of Section 706 of the Act shall be available to any person aggrieved by any act or failure to act by any recipient of federal assistance or federal provider of such assistance under the relevant provisions and so.

 

Kate Shaw: Everyone everyone missed that in the briefing it seems like.

 

Leah Litman: Yeah.

 

Kate Shaw: I mean, the court hates to revisit.

 

Leah Litman: For sure.

 

Kate Shaw: Even in the face of.

 

Leah Litman: For sure.

 

Kate Shaw: An obvious, obvious oversight. So I doubt they will do it. But it’s interesting. I mean, it’s it feels like they might have to say something and maybe what they will do is just, you know, quietly amend the opinion. Right. They used to be able to do it much more quietly. Now they at least are relatively transparent about, you know, post slip opinion provisions. So that, I guess, is they must. My prediction is that they will find some way to footnote the insignificance of this later on, Judge, but I don’t think they can completely ignore it now. And I think the final thing we just have to mention is the weird radio silence from the court right now. Like what is going on over there? There are currently

 

Melissa Murray: The leak, Kate. They’re looking for the leak.

 

Kate Shaw: I mean, they’re all just like investigating one another, like that’s what it is? It’s like the Spider-Man meme. Everyone is investigating everyone else. Like there are right now. No opinions scheduled to be released at all this week. There are 33 of 62 left to be issued. They’re way behind their usual pace. And I don’t know, like we have thoughts on what has seemingly ground the business of the court to a halt. I mean, they didn’t release the two opinions we just talked about today, but that’s it for last week. And right now we’re looking at probably nothing. This week it’s wild.

 

Melissa Murray: So can I offer, again, rash speculation.

 

Leah Litman: Let’s do it.

 

Kate Shaw: I’d love that

 

Melissa Murray: I think it was pretty clear back in November that NYSRPA versus Bruen, that’s the New York gun control case, was going to go a particular way and it was not going to go in New York’s favor. It seemed pretty clear that there were five votes to invalidate the New York concealed carrying scheme. And if there were any questions, it was whether or not there would be room for states to regulate concealed carry permits in, quote unquote, sensitive areas like college campuses or the New York subway. And I just wonder if the rash of shootings that we’ve had, like there have been two shootings on the New York subway since this case was argued, and then the Buffalo shooting and then this horrifying shooting in a valley. I just wonder if this decision was pretty much in the can and ready to go. And they’re just like just reading the room, not the time.

 

Kate Shaw: I mean, I think that’s totally possible. I’m not quite sure it follows that they would put everything on hold. But I think on Bruin, because of all of the big cases.

 

Melissa Murray: This is not a theory about all of them, but I mean, it just seemed like I’m surprised we haven’t gotten that one.

 

Leah Litman: Yes. Because the only opinion outstanding from November.

 

Melissa Murray: Right.

 

Kate Shaw: Yeah. Yeah. And it’s so, so and that’s now a while.

 

Melissa Murray: And it was clear how that was going.

 

Kate Shaw: Oh yeah, I think that’s right. So I mean, has anybody like had second thoughts in light of intervening events or is it just like pure timing and public relations that is the sort of source of the delay?

 

Melissa Murray: I mean, like I. No, no. You know, maybe what’s happened, you know, gets them to think more seriously. And maybe Justice Kagan’s like, told you. Told you. Told you. Told you every time one of these things happens. And maybe there’s some brokering going on to sort of identify kind of some sort of way to kind of, you know, provide some parameters here for this. But it could just be like, you know what? We actually do have some empathy, some sort of capacity to read the room. And, you know, maybe it’s ghoulish to release an opinion like this in this environment. I don’t know.

 

Kate Shaw: Yeah, I think that’s totally possible.

 

Melissa Murray: I wonder, though, if they’re going to get out by June 30th, are we going to have another long July where they’re still there?

 

Kate Shaw: I feel like we’re almost certainly going to be into July.

 

Leah Litman: Really?

 

Kate Shaw: Because they’ve already now. Yeah well they already have post pandemic. They broke with the president already the last two. Right. 2020 and 2021 both went into July. Now 2020 was because they were, you know, shifting to being remote. And that was how we explained it in 2020. But then they did again in 2021. So I think I think the chances I know look, I do have travel plans that are gone the beginning of July, and I’m just not sure.

 

Leah Litman: Do you think this is part of like some members of the court’s efforts to just, like, irk the chief justice and undermine his authority because, you know, he wants to finish by the end. Yeah. I wonder.

 

Kate Shaw: Maybe.

 

Leah Litman: Like just another way of sticking it to the chief justice.

 

Melissa Murray: Like like it’s not enough to give an interview where you basically say it was so much better under the other guy.

 

Leah Litman: Nope, not enough.

 

Kate Shaw: No, no, you.

 

Leah Litman: There is a price to be paid from the there is a price to be paid.

 

Melissa Murray: For being squishy?

 

Kate Shaw: Yeah.

 

Melissa Murray: All right, ladies, this seems like as good a time as any to wrap this up. Listeners, thanks so much for joining us. Strict Scrutiny is a Crooked Media production hosted and executive produced by Leah Litman, me, Melissa Murray and Kate Shaw. It’s produced and edited by Melody Rowell with audio engineering by Kyle Seglin, Music by Eddie Cooper, and production support from Michael Martinez, Sandy Girard and Ari Schwartz, and also digital support from Amelia Montooth and intern support from Anoushka Chunder. Thanks for joining us.