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June 4, 2018

Justice Sotomayor delivers lengthy dissent from denial of cert in Texas capital case concerning ineffective assistance of counsel

This morning's Supreme Court order list yet again lacks any grants of certiorari, but it does not lack some other interesting happenings.  The list includes a per curiam resolution of a dispute over access to abortion by undocumented teens in US custody that is sure to get the most attention. And a denial of cert in a capital case from Texas, Trevino v. Davis, may also generate some buzz because of a long dissent by Justice Sotomayor, joined by Justice Ginsburg. Here is a snippet from the start and close of this 13-page dissent:

When the Court of Appeals for the Fifth Circuit ultimately considered whether Trevino was prejudiced by his trial counsel’s failure to investigate and present evidence of his fetal alcohol spectrum disorder (FASD), the panel majority did not properly “reweigh the evidence in aggravation against the totality of available mitigating evidence.”  Wiggins v. Smith, 539 U.S. 510, 534 (2003).  Rather, the majority dismissed the new FASD evidence because it purportedly created a “significant double-edged problem” in that it had both mitigating and aggravating aspects, and stopped its analysis short without reweighing the totality of all the evidence.  861 F.3d 545, 551 (2017).  That truncated approach is in direct contravention of this Court’s precedent, which has long recognized that a court cannot simply conclude that new evidence in aggravation cancels out new evidence in mitigation; the true impact of new evidence, both aggravating and mitigating, can only be understood by asking how the jury would have considered that evidence in light of what it already knew.

Although this Court is not usually in the business of error correction, this case warrants our intervention and summary disposition.  I respectfully dissent from the Court’s refusal to correct the Fifth Circuit’s flagrant error....

The Fifth Circuit majority plainly misapplied our precedents.  Absent intervention from this Court to correct that error, Trevino remains subject to a death sentence having received inadequate consideration of his claim of ineffective assistance of trial counsel, and with no jury having fairly appraised the substantial new mitigating evidence that a competent counsel would have discovered.  That result is indefensible, especially where our failure to intervene sanctions the taking of a life by the state.

June 4, 2018 at 09:43 AM | Permalink


Sotomayor needs to give it a rest her constant dissents from almost every "don't blame me" death penalty case is disturbing. She usually only garners one or two fellow nut cases to join her. Like Breyer who we know has lost it already saying the DP is unconstitutional despite it being around since before our founding. These two are jokers when it comes to personal responsibility and acceptance of a juries determination. State Executions will continue for a long time because there are evil killers among us.

Posted by: DeanO | Jun 4, 2018 9:58:18 AM

It is the majority who have lost the plot. Time and time again we see their cowardice in confronting the legitimacy of correction of error. This is plain error, indisputably so. Why should any inmate suffer the denial of sentence correction when a change of sentencing policy occurs in the present? Can you actually imagine the tortured anguish of such inmates, forced to serve years of meaningless detention that can only further damage their chances of eventual success reintegration into society? Of course you can't unless it be to enjoy their suffering. You and they should take to heart the words of Robert Ingersoll - "Give to every human being every right that you claim for yourself". You say "These two are jokers when it comes to personal responsibility and acceptance of a juries determination." The point made by Justice Sotomayor is precisely that the jury was denied the opportunity to consider all of the available and relevant evidence because of the incompetence of trial counsel. How can anyone have confidence in the jury system when such "error" is committed and left uncorrected? It is the Supreme Court majority that is lacking in taking responsibility in this instance .... as in so many instances. No wonder sentencing policy in the US is in such a mess.

Posted by: peter | Jun 4, 2018 11:11:24 AM

Sotomayor occasionally dissents but DeanO wants her to stop in part because "there are evil killers among us."

NY and other states plus most countries manage. And, then there are the states where some stray "evil killer" is executed. Finally, there are a few states where ten or whatever "evil killers" are executed. Not convincing reason for justices to stop flagging problems. Thomas and Gorsuch can flag their concerns too.

"the DP is unconstitutional despite it being around since before our founding"

The problems with the death penalty, particularly in certain cases, were flagged by a few from the start. Over time, various problems with application were found, and this was addressed by executive, legislative, popular initiatives and judicial actions in many decisions. As with school segregation being allowed in D.C. and the states in the 1870s not being the final word, the death penalty -- in different times and situations (e.g., the primitive nature of the prison system in 1791, an era where flogging and execution of children was readily accepted) -- might later be found unconstitutional as well.

Posted by: Joe | Jun 4, 2018 11:32:08 AM

Do you remember ?????

Cert denied November 18, 2013
SOTOMAYOR, J., dissenting

Posted by: Claudio Giusti | Jun 4, 2018 3:11:50 PM

Today's opinion in the cake case pretty much nukes all credibility of the "wise [sic] Latina." She's more concerned about judicially made-up rights of capital murderers than the right of American citizens to have their cases decided in a manner free of invidious discrimination.

She is a truly awful Justice. And as bad as I predicted way back ween.

Posted by: federalist | Jun 4, 2018 9:37:56 PM

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