TWO SUPREME COURT opinions written by Justice Clarence Thomas and issued in the past month, Shinn v. Ramirez and Jones v. Hendricks, look like routine attacks on the Warren Court’s protections for criminal defendants.

In fact, they declare a war on innocence.

Shinn decided two Arizona capital cases. In one, the victim’s time of death excludes the defendant as the killer; in the other, the defendant suffers from devastating mental incapacities.  No lawyer raised the issues in state court.  In Jones, the defendant was imprisoned for an act that subsequent courts have ruled was never a crime in the first place.

Justice Thomas wrote for the majorities that a federal judge investigating these facts violates the terms of the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), and commits “[A]n affront to the State and its citizens who returned a verdict of guilt after considering the evidence before them.

It’s very simple. When states appoint underpaid, untrained, defense lawyers, too overwhelmed by their caseloads to investigate cases or raise claims, they shut the federal courts out of the business of enforcing rights.

Every federal judge confronting an innocent petitioner sentenced to death whose ineffective lawyers failed to “make the record” in a state trial court must emulate Pontius Pilate — wash his or her hands, let the execution go forward.

Still, Justice Thomas may have inadvertently laid the foundation for the repeal of the Anti-Terrorism and Effective Death Penalty Act.  This month’s opinions have overreached. They clarify our situation.

The law’s authors conjured up cartoonish figures of terrorists gleefully mobilizing “technicalities” to avoid punishment.  Since enactment, they have successfully exploited the complexity of the law, which operates behind a miasma of arcane rules no one of which seems important when taken alone.

Now, after Justice Thomas’s recent opinions, fantasies about guilty criminals released on imaginary technicalities have to yield to a cold reality that most ordinary Americans would have thought inconceivable.

Innocent citizens must be imprisoned—even executed—because of real technicalities.

The Shinn and Jones rulings protect judges against review of their errors. They protect prosecutors who win victories in mistaken cases.  They forbid “endless appeals” —but the appeals would “end” immediately when some judge finally gets things right.  They exalt brittleness, requiring irreversible catastrophe after each miscarriage, where a safe system would seek resiliency—correction and recovery.

These holdings protect the professionals at the expense of innocent defendants, but also at the expense of jurors.  They deny the jurors data, but leave the jurors responsible for fatal outcomes. Remember, if an innocent man is executed, and there have been at least 190 people sentenced to death exonerated since 1973, it is because 12 jurors voted that way.

Imagine you were a juror in one of the Arizona cases. You voted for death.  You read about the execution. Then—but only then—you learn what you had never been told:  there was evidence that the victim’s time-of-death absolved the man whose execution you brought about. An innocent man is dead, and your vote was indispensable. You get to live with that trauma.

The moment is here for President Biden—who opposed the Anti-Terrorism and Effective Death Penalty Act procedural bars as a senator—to pardon the innocent prisoners whom Justice Thomas’s opinions would permanently bury, and to move decisively to seek repeal of the law.    

This is not a “culture war” issue dividing one American from another. The protection of innocence that means nothing (or worse) to Justice Thomas and his colleagues means everything to ordinary Americans. Gideon’s Trumpet and To Kill a Mockingbird  are hallowed texts in our civic religion.

The public response to the swelling media tide of exoneration narratives and podcasts is universal horror.

I have defended many murder cases.  Sometimes the age of the victim is particularly heartbreaking; sometimes, the brutality of the method of murder. Usually, the sheer sickening pointlessness of the killing dominates. The evidence is always horrifying.

During closing argument, I often quote John Adams’s speech to the jury in defense of the British officers in the Boston Massacre trial:

When innocence itself is brought to the bar and condemned, especially to die, the subject will exclaim, it is immaterial to me whether I behave well or ill; for virtue itself is no security. And if such a sentiment as this should take place in the mind of the subject, there would be an end to all security whatsoever. 

My jurors don’t always acquit after hearing this.  But they do straighten in their chairs.  They visibly gather themselves to take on a duty that they see as sacred. Every one of them. Every time.

If you let Americans be heard, they’ll fight in this war—with John Adams, on the side of protecting innocence.

James Doyle is a Boston defense lawyer and author and formerly the head of the public defender division of the Committee for Public Counsel Services and director of the Center for Modern Forensic Practice at the John Jay College of Criminal Justice.