United States Supreme Court Denies Review for Death-Sentenced Missouri Man Whose Jury Foreman Was Removed for Bias

On March 31, the Supreme Court declined to hear the appeal of Lance Shockley of Missouri, the 36^th death-sen­tenced per­son to be denied cer­tio­rari by the Court this year. At tri­al, Mr. Shockley’s jury fore­man was removed before the sen­tenc­ing phase based on evi­dence of seri­ous bias — but Mr. Shockley’s attor­ney declined the oppor­tu­ni­ty to ques­tion the fore­man or oth­er jurors about the mis­con­duct, and his con­vic­tion, which the fore­man par­tic­i­pat­ed in, was allowed to stand. Mr. Shockley’s claim on appeal that his tri­al attor­ney was con­sti­tu­tion­al­ly inef­fec­tive would have been allowed to pro­ceed in sev­er­al oth­er fed­er­al cir­cuit courts but was denied in the Eighth Circuit based on its stricter inter­pre­ta­tion of the law. Justices Sonia Sotomayor and Ketanji Brown Jackson dis­sent­ed from the denial of review, argu­ing that the Supreme Court should have resolved the cir­cuit split regard­ing appel­late pro­ce­dures. The jus­tices also high­light­ed the sever­i­ty of the under­ly­ing mis­con­duct and Mr. Shockley’s attorney’s fail­ure to vin­di­cate his client’s legal rights.

Mr. Shockley was sen­tenced to death for the mur­der of a police offi­cer who was inves­ti­gat­ing Mr. Shockley’s role in a drunk dri­ving crash that killed a fam­i­ly mem­ber. During jury selec­tion, a poten­tial juror shared that he had self-pub­lished a book. Mr. Shockley’s attor­ney did not fol­low up on that state­ment, and the juror went on to become the fore­man. As Justice Sotomayor described in her dis­sent, Mr. Shockley’s lawyer ​“did not dis­cov­er until after the jury returned a guilty ver­dict why the foreper­son had thought his author­ship rel­e­vant”: it was because the book was a “’fic­tion­al­ized auto­bi­og­ra­phy’ describ­ing the ​‘bru­tal and graph­ic revenge mur­der of a defen­dant who killed the protagonist’s wife in a drunk­en-dri­ving acci­dent.’” The jury fore­man brought his book — describ­ing mur­der­ous vig­i­lante jus­tice against a drunk dri­ver — to delib­er­a­tions, where he showed it to oth­er jurors before they vot­ed to con­vict Mr. Shockley. 

When Mr. Shockley’s attor­ney moved for a mis­tri­al, the judge offered the attor­ney the oppor­tu­ni­ty to ques­tion the fore­man and the oth­er jurors — but the attor­ney “[i]nexplicably” declined and did not call any wit­ness­es to sup­port his mis­tri­al motion. ​“As a result,” Justice Sotomayor wrote, ​“the tri­al court did not hear evi­dence regard­ing the foreperson’s alleged bias and mis­con­duct or its effect on oth­er jurors, some of whom lat­er indi­cat­ed that they had looked through the book.” The judge removed the fore­man but denied the mis­tri­al motion, allow­ing the con­vic­tion to stand. When the jury dead­locked on pun­ish­ment, the judge imposed a death sen­tence, a pro­ce­dure only autho­rized in two states.¹

The key legal issue Mr. Shockley asked the Supreme Court to con­sid­er was whether, under fed­er­al pro­ce­dures gov­ern­ing state pris­on­er appeals, he could bring a claim in fed­er­al court that his attor­ney had been con­sti­tu­tion­al­ly inef­fec­tive. A pan­el of Eighth Circuit judges vot­ed 2 – 1 to deny him the oppor­tu­ni­ty to pur­sue that claim. 

After state death-sen­tenced pris­on­ers exhaust their state appeals, they may appeal their con­vic­tions and sen­tences in fed­er­al dis­trict court. However, if they lose in the dis­trict court, fed­er­al law holds that they can only appeal that deci­sion if ​“a cir­cuit jus­tice or judge issues a cer­tifi­cate of appeal­a­bil­i­ty” (COA). Four fed­er­al cir­cuit courts have inter­pret­ed that statute to mean that a death-sen­tenced pris­on­er can appeal as long as one of the three judges on the pan­el hear­ing the case votes to issue a COA. However, five fed­er­al cir­cuit courts, includ­ing the Eighth Circuit where Mr. Shockley’s appeal was heard, have inter­pret­ed the statute to mean that a major­i­ty of the pan­el must agree to issue a COA.

According to Justice Sotomayor, this dis­agree­ment between the fed­er­al cir­cuit courts rep­re­sents a clas­sic ​“cir­cuit split” over a mat­ter of appel­late pro­ce­dure with ​“sig­nif­i­cant con­se­quences” for peo­ple fac­ing exe­cu­tion across the coun­try. She observed that ​“the grant of a cer­tifi­cate of appeal­a­bil­i­ty often marks the appoint­ment of coun­sel, so its denial gen­er­al­ly deprives indi­gent lit­i­gants of the oppor­tu­ni­ty for a coun­seled appeal.” She also con­trast­ed the statute’s lan­guage of ​“a cir­cuit jus­tice or judge” (empha­sis added) with anoth­er law estab­lish­ing that a ​“major­i­ty” of judges deter­mine a case’s ulti­mate res­o­lu­tion, sug­gest­ing that Congress inten­tion­al­ly ​“con­di­tioned the right to an appeal on a sin­gle judge’s vote.” 

Justice Sotomayor fur­ther argued that the sin­gle-judge inter­pre­ta­tion ​“pro­motes effi­cien­cy” by push­ing courts to con­sid­er the sub­stance of a debat­able case instead of quib­bling over pro­ce­dure. For exam­ple, after Mr. Shockley’s appeal was dis­missed by the Eighth Circuit, two judges who were not on the pan­el dis­sent­ed, say­ing that they would have grant­ed rehear­ing en banc (by the full court). The ​“ques­tion whether to grant a cer­tifi­cate should not be a con­tentious one,” Justice Sotomayor wrote. ​“When a peti­tion for cer­tifi­cate of appeal­a­bil­i­ty is suf­fi­cient­ly weighty to engen­der split opin­ions and even en banc lit­i­ga­tion, as it did here, judi­cial resources are bet­ter spent sim­ply con­sid­er­ing the mer­its in the reg­u­lar course.” This approach also exhibits ​“regard for fun­da­men­tal rights and respect for pris­on­ers as peo­ple” by answer­ing claims ​“on their mer­its, rather than dis­miss­ing them out of hand.” 

“It is dif­fi­cult to see how an attorney’s deci­sion not to call wit­ness­es in sup­port of a cred­i­ble mis­tri­al motion, when invit­ed to do so by the pre­sid­ing judge in a cap­i­tal mur­der tri­al, could fail to con­sti­tute inef­fec­tive assis­tance of coun­sel,” Justice Sotomayor con­clud­ed, not­ing that the low­er courts ​“plain­ly erred” in how they han­dled this claim. ​“Unfortunately, the Court leaves the issue for anoth­er day…[but the cir­cuit courts] remain free to recon­sid­er their operating rules.”