In Texas, a man sits in prison as he has for over five years. After Fred Martinez was convicted of indecency of a child, significant concerns arose that the police chose to arrest him because he was gay and now he has evidence of innocence with DNA proof.
During the plea deal negotiations, Fred Martinez’s attorney told him if he didn’t take the plea deal and went to trial, “the jury wouldn’t believe an Hispanic gay man over a White child”. Less than one year after taking probation, he violated his probation after his probation officer went through his cell phone and found an app connected to the internet, a violation of probation for being online as a registered sex offender. Later it became known that Fred Martinez’s attorney promised to help him overturn the conviction in the future, a promise that never happened although Martinez put his life on the line to be released from jail while his mother was sick and needed his care. This promise raise serious doubts regarding the fairness and effectiveness of his own legal defense counsel.
In United States law, ineffective assistance of counsel is a claim raised by a convicted criminal defendant asserting that the defendant’s legal counsel performed so ineffectively that it deprived the defendant of the constitutional right guaranteed by the Assistance of Counsel Clause of the Sixth Amendment to the United States Constitution. Ineffectiveness claims may only be brought where the defendant had the right to counsel, ordinarily during the critical stages of a prosecution. Yet, despite this guarantee, history has shown that bias has infected defense attorneys, juries, and even prosecutors to the point of death sometimes. Just three years ago, the Supreme Court ruled in a groundbreaking decision, Pena-Rodriguez v. Colorado, that when it is clear that jurors made statements that rely on racial stereotypes or hate to convict someone of a crime, then the Sixth Amendment guarantees that person the right to introduce those statement to show that he or she has not been fairly tried by an impartial jury.
Fred Martinez has urged state and appellate courts to review his case because the DNA evidence by the Texas Department of Public Safety crime laboratory that bias based on his sexual orientation played a role in him pleading guilty to indecency of a child due to intimidation and not by any physical evidence. So far, no court has heard this strong DNA evidence. And now, Fred Martinez and his sister, who has been by his side throughout this ordeal, is again asking the District Court to settle the important question of whether the rule they announced in Mr. Pena-Rodriguez’s case applies to Mr. Rhines. The Court’s decision whether to review his case may be a choice to turn a blind eye in the interest of justice or to allow an innocent man to be free. If the Court does not accept review, clear evidence of bias based on DNA evidence and sexual orientation may never be heard by any court. If our legal system allows anti-gay bias in the criminal justice process, the integrity of our entire court system is undermined. The punishment of prison in Texas without air conditioning in the middle of a ravaging pandemic is the harsh misuse of government power. When it is applied in a biased manner, courts should take every possible opportunity to correct that wrong.There is a long, painful history of formal discrimination against lesbian, gay, and people of color with disabilities that continues despite huge advancements in the law and in society. Within the past twenty-five years, less than the time Fred Martinez has been in prison, the Supreme Court has recognized that laws based on moral objections against lesbian, gay, and bisexual people and that laws criminalizing them are unconstitutional. Despite the Court’s rulings, discrimination and prejudice against lesbian, gay, and bisexual people remain, even in the legal system.
The prevalence and persistence of discrimination against lesbian, gay, and bisexual people illustrate the need for safeguards in our legal system to ensure fairness. We already have other safeguards in our justice system – such as voir dire and jury instructions that clearly command that bias cannot be part of the deliberations – but when those fail to weed out bias then the court must act to preserve the integrity of our justice system. Too often, jurors, defense attorneys, and prosecutors with biases against lesbian, gay, and bisexual people serve simply because a judge does not allow questioning, or believes that the defense attorney or even jurors can be effective if they agree to set biases aside.