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.