The US supreme court will hear arguments from two Arizona death row inmates on Wednesday in a case that could have devastating consequences for prisoners attempting to prove their innocence before they are sent to the execution chamber.
State officials in Arizona are asking the nation’s highest court to bar the two condemned prisoners – one with a strong claim of innocence, the other with a history of intellectual disability and family abuse – from presenting evidence in federal court that could save their lives.
The Arizona officials argue the prisoners should not be allowed to put forward the evidence because they failed to do so in state court at an earlier stage in their legal proceedings.
But the prisoners protest they had no chance of seeking redress at state level because the lawyers they were assigned by Arizona were so woefully incompetent at trial that they failed to uncover crucial evidence that could have spared them from death row. After conviction, they were assigned a second set of lawyers who were equally ineffective and who as a result made no challenge to the gross mishandling of their defense at trial.
Death penalty experts warn that if the country’s highest court sides with Arizona it would erect new hurdles that could impede all convicted prisoners, including death row inmates, from seeking redress in federal court for possible miscarriages of justice. At its most stark, individuals who should have been exonerated or who should never have been put on death row because of their intellectual disabilities would face increased risk of being unjustly executed.
“An adverse resolution in this case could present crippling obstacles to wrongfully convicted prisoners in proving their innocence and winning their freedom,” said Robert Dunham, executive director of the Death Penalty Information Center.
Almost 3,000 prisoners have been exonerated in the US since 1989 – including 186 innocent people who were condemned to death. Christina Swarns, executive director of the Innocence Project, estimates that between them they spent more than 25,000 years behind bars for crimes they did not commit.
Swarns said that if Arizona prevails, “untold thousands of wrongfully convicted innocent people will be left in the nightmarish situation of having no court to whom they can turn for justice.”
At its most visceral, the Arizona case, Shinn v Ramirez and Jones, is a matter of life and death. But the hearing is also being seen as profoundly important by close observers of the supreme court as a litmus test of how radical the new court is intending to be.
The supreme court is in the first full term with its new six to three conservative majority seated. That rightwing composition is the product of Donald Trump having remolded the court by appointing three new justices under highly contentious circumstances.
“This is a bellwether case for how extreme this supreme court might be,” said Leah Litman, a constitutional law scholar at the University of Michigan law school.
Last week the court sent jitters across America when it heard arguments in a case that could overturn Roe v Wade, the landmark 1973 ruling that established the constitutional right to an abortion up to the point of fetal viability. Conservative justices indicated that they are contemplating restricting or even abolishing abortion rights.
Critics have warned that if the new supreme court curtailed abortion it could severely damage the legitimacy of the court by giving the appearance that it is swayed by partisan politics – in the abortion case from extremist Republicans in Mississippi.
The Arizona death penalty case carries similar dangers for the standing of the court and with it the state of American democracy. Were the conservative justices to rule in Arizona’s favor they would be backing a radical partisan move by Republican state lawmakers.
In 2012 the supreme court ruled in Martinez v Ryan that prisoners should be allowed to present claims in federal court that they had ineffective lawyers at trial and post-conviction stages of their cases. That precedent has never been questioned by an appeals court or by any justice on the supreme court.
Now Arizona Republicans are trying to impose a new impediment. Prisoners can present claims that their lawyers were ineffective as Martinez requires, but they can’t produce any evidence to back up those claims.
“Obviously, presenting a claim with no evidence at all isn’t much of a claim,” Litman said.
She added: “It is important to understand that the antics in this case are the same antics that are happening elsewhere on the court’s docket this term, asking for extreme aggressive maneuvers that threaten the court’s institutional integrity.”
Barry Jones, one of the two death row inmates at the centre of Wednesday’s arguments, has always claimed his innocence. He was sentenced to death for the May 1994 killing of his girlfriend’s daughter, aged four, in Tucson, Arizona.
In 2017, a federal judge ruled that there had been a “rush to judgment” in prosecuting Jones. Prosecutors had relied on junk science, telling the jury that the victim’s injuries could scientifically be shown to have been inflicted a day before her death when she was in the sole care of Jones.
Jones’s trial lawyer did not challenge that testimony at trial, which in effect amounted to an admission of the defendant’s guilt. But in the federal hearing in 2017 the court was told by a medical expert who had reviewed the forensics that the girl’s injuries “could not possibly have been inflicted on the day prior to her death”.
The judge ordered that Jones be released or have a new trial. But Arizona is so determined to execute its prisoner that the state has appealed all the way to the supreme court.
Cary Sandman, one of Jones’s legal team, said that his client had spent “over 25 years on death row despite never having got a fair trial. Arizona is now arguing that Jones must suffer that wrongful conviction without recourse to federal courts.”