For the first time in at least five years, Supreme Court justices last week issued dissents from the Court’s denial of review in two capital cases on the same day.
Both cases involved official misconduct. One alleged that Texas prosecutors illegally struck 13 women from Dillion Compton’s jury because of their gender. The other argued that California police illegally questioned Kurt Michaels after he invoked his right to remain silent, leading to a statement that prosecutors wrongly used against him at trial.
Gender Discrimination in Texas Jury Selection
At Dillion Compton’s trial, the State used 13 of its 15 strikes to remove women from the jury pool—which was 55% women—leaving a jury that was only 33% women. The 23 female prospective jurors outnumbered the 19 male potential jurors, but men outnumbered women two-to-one on the jury, which had only four women and eight men.
The prosecutor said he struck the women because of their hesitations about imposing the death penalty, and on appeal, the Texas Court of Criminal Appeals declined to compare individual jurors side-by-side and instead found that most of the struck women had less favorable views on the death penalty than most of the men who were not struck.
The Court denied review of the state court’s decision on April 15. Justice Sonia Sotomayor, joined by Justice Ketanji Brown Jackson, dissented from the denial of review, writing that she would have summarily reversed the state court’s decision and ordered a correct analysis of Mr. Compton’s gender discrimination claim.
“This case illustrates the hazards of analysis by aggregate,” she wrote, detailing an example from the record. V.P., a woman struck by the State, strongly supported capital punishment, rating her support at a five out of six. Justice Sotomayor explained:
She endorsed punishment as more important than rehabilitation and agreed that capital punishment was “absolutely justified” and “just and necessary.” She was “concern[ed]” about life in prison instead of the death penalty because sometimes the prisoner could “continu[e] to do harm to others while in prison.” When questioned about mitigation during voir dire, she said that reading the mitigation special issues made her angry, because “some people use just whatever—you know, they blame—I don’t like the blame game.”
In contrast, a man who was not struck by the State expressed more hesitations about the death penalty:
That prospective juror, P. K., wrote that he was opposed to the death penalty except in some cases, and that he would be “very conflicted” about returning a verdict of death, underlining “very” for emphasis. He agreed that “[c]apital punishment is not necessary in modern civilization” and embraced the idea that “[e]xecution of criminals is a disgrace to civilized society.” He thought that Texas used the death penalty “too often.”
The example shows the prosecutor’s reason for striking V.P. was a pretext for illegal discrimination. As Justice Sotomayor reasoned, when the State applies a reason true of many women potential jurors to another woman “not based on what she says, but based on the fact that she is a woman, it crosses the line into invidious discrimination.”
Just because “most” or “nearly all” women in the jury pool had hesitations about the death penalty, Justice Sotomayor wrote, “does not mean that V.P. did.”
The state court erroneously “allowed the views of other female prospective jurors to infect its assessment of the State’s justification for V.P.’s strike,” the dissent concluded. Its aggregate analysis “directly contradicts the principle that striking even one prospective juror for a discriminatory reason violates the Constitution.”
The Right to Remain Silent in California
Justice Jackson dissented from the denial of Kurt Michaels’s request for review of the Ninth Circuit’s divided decision finding that it was harmless error when the prosecutor was permitted to use his confession at the penalty phase to persuade the jury to sentence him to death.
After Mr. Michaels was arrested and read his Miranda rights, he invoked his right to remain silent and not answer any questions about the accused crime. The police kept questioning him anyway, leading to a more than two-hour-long taped confession that was admitted at the both the guilt and penalty phases.
At the penalty phase, DPIC details, the mitigating evidence presented by Mr. Michaels’s defense included his serious history of mental illness, he attempted suicide at age 11, was abused by a violent alcoholic father who molested his sister and tried to run both children over with a car; he suffered brain damage from physical trauma and meth use; he was only 22, had no violent criminal record, and had served in the Marine Corps at the time of the crime. Evidence also showed that Mr. Michaels’s girlfriend had asked him to kill her mother because her mother sexually abused her.
The prosecution played the taped confession and heavily relied on it at the penalty phase. It took the jury more than three days of deliberations before it returned a verdict of death.
The State conceded that the confession should not have been admitted at trial because officers violated Mr. Michaels’s constitutional right to remain silent. But it argued that the error was harmless because other witness testimony corroborated the basic facts in the confession.
On appeal, the Ninth Circuit Court of Appeals issued a divided set of opinions on the use of the confession at the penalty phase. The majority agreed with the State, but Judge Marsha Berzon wrote in dissent that confessions are uniquely capable of overpowering mitigating evidence in the eyes of jurors.
“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.”
Indeed, the Supreme Court has made “crystal clear” that wrongfully admitted confessions cannot be treated like other evidence when conducting a harmless-error analysis, Justice Jackson wrote in dissent. A confession “is not a mere recitation of facts”—it can “provide indelible intangible information about the defendant that can have a ‘profound impact . . . upon the jury.’”
The Court has long held that confessions must be evaluated for harmless error using “extreme caution” because, Justice Jackson wrote, “[e]ach and every mannerism—the way the defendant speaks or laughs about a horrific act, his pauses or intonations when describing gruesome details, his gestures or body language when recounting his rationale—might be significant to a jury tasked with deciding his fate.”
Here, the dissent argues, the Ninth Circuit majority failed to exercise the required caution. It ignored the “powerfully demonstrative nature of the confession,” failed to consider the “uniquely prejudicial nature of hearing him describe the crime in such specific, horrific detail,” and “discounted the potential effect on the jury of watching Michaels repeatedly laughing about disturbing details of the crime.” Instead, the majority treated the confession as “simply a collection of cumulative facts.”
Because the appeals court failed to apply the harmless-error standard properly, Justice Jackson would have summarily reversed.
“[T]he Fifth Amendment protects everyone, guilty and innocent alike,” she concluded, adding that “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.”