Justices Sotomayor and Jackson Issue Dissents Over Supreme Court’s Refusal to Review Two Capital Misconduct Cases

On Monday, April 15, Justices Ketanji Brown Jackson and Sonia Sotomayor issued dis­sents over the Supreme Court’s refusal to hear the peti­tions of two death-sen­tenced pris­on­ers who alleged offi­cial mis­con­duct in their cas­es. In the first case, Dillion Compton alleged that Texas pros­e­cu­tors ille­gal­ly used thir­teen of their fif­teen peremp­to­ry strikes to remove female prospec­tive jurors because of their gen­der. In the sec­ond case, Kurt Michaels argued that California police offi­cers unlaw­ful­ly con­tin­ued to ques­tion him after he invoked his Miranda rights, lead­ing Mr. Michaels to even­tu­al­ly con­fess, and his con­fes­sion was wrong­ly admit­ted at tri­al. Supreme Court jus­tices rarely issue more than one writ­ten state­ment at a time regard­ing a cer­tio­rari deci­sion in a cap­i­tal case, and this marks the first time in at least five years that the jus­tices have issued two dis­sents from denial in cap­i­tal cas­es on the same day.

Justice Sotomayor, joined by Justice Jackson, wrote in Mr. Compton’s case that she would have sum­mar­i­ly reversed the low­er court’s deci­sion and ordered a prop­er analy­sis of his gen­der dis­crim­i­na­tion claim. For Mr. Compton’s 2018 tri­al, the ini­tial jury pool was 55% female, but the final jury was 33% female after the strikes. The state’s only jus­ti­fi­ca­tion for strik­ing the women was that they alleged­ly opposed the death penal­ty. The Texas Court of Criminal Appeals (TCCA) admit­ted that ​“the fact that only four women made it onto the jury despite the pan­el hav­ing more women than men does raise con­cerns,” but rea­soned that ​“most” or ​“near­ly all” of the women pros­e­cu­tors struck expressed views less favor­able toward the death penal­ty than the men who were seat­ed on the jury. Justice Sotomayor argued that the TCCA erred by ana­lyz­ing the strikes ​“in the aggre­gate” instead of the ​“side-by-side com­par­i­son” of struck and retained jurors that the law demands. ​“Striking even one prospec­tive juror for a dis­crim­i­na­to­ry rea­son vio­lates the Constitution,” she wrote, and in Mr. Compton’s case, ​“it is clear that at least one woman struck by the State had more favor­able views on the death penal­ty than at least one man the State did not strike.” Therefore, the state’s expla­na­tion for its strikes of women rang false and the evi­dence sug­gest­ed ​“invid­i­ous dis­crim­i­na­tion” based on gender. 

“We are dis­ap­point­ed that the Supreme Court left in place a clear­ly flawed deci­sion that failed to mean­ing­ful­ly scru­ti­nize whether the State of Texas engaged in gen­der dis­crim­i­na­tion,” said Mr. Compton’s attor­ney, Jennae Swiergula of the Texas Defender Service. ​“As Justice Sotomayor’s dis­sent makes clear, the evi­dence strong­ly sug­gests sev­er­al women were struck from Mr. Compton’s jury because of their gender.”

The Texas Defender Service released a state­ment say­ing that jury dis­crim­i­na­tion is a ​“wide­spread prac­tice” that acts ​“to the detri­ment of our entire jus­tice sys­tem.” The Death Penalty Information Center has iden­ti­fied at least 65 cas­es in which courts over­turned a con­vic­tion or death sen­tence in a cap­i­tal case based on pros­e­cu­to­r­i­al mis­con­duct in jury selec­tion. Though her opin­ion focused on gen­der, Justice Sotomayor not­ed addi­tion­al evi­dence of racial dis­crim­i­na­tion in Mr. Compton’s jury selec­tion. Mr. Compton is Black, but the final jury had eleven white peo­ple and one Hispanic per­son. The state struck the only two Black poten­tial jurors in the pool, as well as one Hispanic man — mean­ing that the state used every one of its fif­teen strikes on either a woman or a per­son of col­or. Jones County, where Mr. Compton’s tri­al occurred, is 10% Black and over one-quar­ter Hispanic, with less than 60% of the pop­u­la­tion iden­ti­fy­ing as non-Hispanic white. ​“In so many cas­es, pros­e­cu­tors exclude able jurors from ser­vice because of the col­or of their skin or because they are women — with­out any inter­ven­tion from the courts,” said the Texas Defender Service. ​“It means that the sen­tences our sys­tem pro­duces do not reflect the view of our communities.” 

In Mr. Michaels’ case, Justice Jackson wrote that she would have sum­mar­i­ly reversed the Ninth Circuit’s deci­sion find­ing that the admis­sion of his con­fes­sion did not prej­u­dice him at the penal­ty phase of the tri­al. Mr. Michaels was accused of killing his girl­friend Christina’s moth­er. During the inter­ro­ga­tion, Mr. Michaels invoked his right to remain silent, but offi­cers unlaw­ful­ly con­tin­ued ques­tion­ing him until he ulti­mate­ly gave a detailed con­fes­sion last­ing over two hours. The con­fes­sion was admit­ted in part at the guilt phase of the tri­al and then played in full and used heav­i­ly by the pros­e­cu­tor dur­ing the penal­ty phase. The defense pre­sent­ed mit­i­gat­ing evi­dence show­ing Mr. Michaels’ seri­ous his­to­ry of men­tal ill­ness, includ­ing a sui­cide attempt at age 11; child­hood abuse from a vio­lent alco­holic father who molest­ed Mr. Michaels’ sis­ter and tried to run both chil­dren over with a car; brain dam­age from phys­i­cal trau­ma and meth use; his youth, age 22, and lack of vio­lent crim­i­nal record; and his ser­vice in the Marines. Evidence also showed that Christina had asked Mr. Michaels to kill her moth­er because her moth­er sex­u­al­ly abused her. The jury delib­er­at­ed for over three days before return­ing a ver­dict of death. 

In the appeal below, the Ninth Circuit was so con­flict­ed that it issued mul­ti­ple opin­ions: a per curi­am rul­ing on most of the issues, and a divid­ed set of opin­ions on the use of the con­fes­sion dur­ing the penal­ty phase. The pan­el major­i­ty agreed that the tri­al court uncon­sti­tu­tion­al­ly admit­ted the con­fes­sion dur­ing the penal­ty phase but found the admis­sion was harm­less because the facts were cor­rob­o­rat­ed by oth­er evi­dence. However, Judge Marsha Berzon force­ful­ly dis­sent­ed, argu­ing that con­fes­sions are more than just a sum­ma­ry of facts: they have a sin­gu­lar sway with the jury that can over­pow­er mit­i­gat­ing evi­dence. ​“Given the sub­stan­tial evi­dence in mit­i­ga­tion and the fact that the jury delib­er­at­ed on the penal­ty for more than three days, it is my firm view that there is a real prob­a­bil­i­ty a sin­gle juror might have spared Michaels’s life,” Judge Berzon wrote, ​“but for the improp­er­ly intro­duced evi­dence used at trial.” 

Justice Jackson echoed Judge Berzon’s argu­ment in lament­ing the Supreme Court’s deci­sion not to take the case. She wrote that the Supreme Court ​“has long held that courts must ​‘exer­cise extreme cau­tion’ when deter­min­ing whether the admis­sion at tri­al of an ille­gal­ly obtained con­fes­sion con­sti­tutes a harm­less error,” but the Ninth Circuit major­i­ty failed to exer­cise that cau­tion. The pan­el was ​“inat­ten­tive to the unique­ly prej­u­di­cial nature of con­fes­sion evi­dence” and treat­ed the con­fes­sion as ​“sim­ply a col­lec­tion of cumu­la­tive facts.” But the ​“Fifth Amendment pro­tects every­one, guilty and inno­cent alike,” Justice Jackson argued — and ​“courts must be care­ful to safe­guard the rights that our Constitution pro­tects, even when (and per­haps espe­cial­ly when) eval­u­at­ing errors made in cas­es stem­ming from a terrible crime.”