Justice Thomas is upset the Court didn’t deprive death row inmate of due process

Thomas’s angry dissent

Justice Clarence Thomas, joined by Justices Samuel Alito and Neil Gorsuch, dissented from a juror bias case that the Supreme Court declined to address.

Jeronique Cunningham was convicted and sentenced to death for shooting and killing three people in a drug-related robbery in 2002. It wasn’t until after his sentencing, during appeal,.that Cunningham uncovered evidence that the jury foreperson, Nichole Mikesell, received information about Cunningham from colleagues at the county’s children-services agency. After the trial ended, Mikesell told an investigator that social workers who worked with Cunningham were afraid of him. She further allegedly told two other jurors that she had a relationship with the victims’ families because of her job.Miskell did not disclose any personal connection to the case during voir dire.

The Sixth Circuit Court of Appeals found that Cunningham “raised a colorable claim of juror bias,” and ordered the district court to hold a hearing to determine whether the foreperson’s presence on the jury deprived Cunningham of due process.

Ohio appealed to the Supreme Court, asking the justices to reverse the Sixth Circuit’s order. The majority declined to reverse, with Thomas writing a fuming dissent castigating the appeals court for—in his view—ordering an “indefensible” hearing:

The Sixth Circuit nonetheless awarded Cunningham a hearing on the mere possibility that it might turn up some kind of admissible evidence supporting some sort of cognizable claim. On that basis alone, the Sixth Circuit decreed that the jury foreperson and even the family members of the victims must submit to cross-examination about their memories of painful, decades-old events. See ibid. Their every word will be picked apart in the hunt for further excuses to drag out this 16-year-old federal habeas action. The Sixth Circuit’s decision is more than an error—it is an injustice. It shows profound disrespect, not merely to the State, but to citizens who perform the difficult duty of serving on capital juries, to the surviving victims of Cunningham’s atrocious crimes, to the memories of the two young girls whose lives he snuffed out, and to their families who still, two decades later, have no assurance that justice will ever be done…

The Sixth Circuit must do better, with or without this Court’s help.

Thomas, Alito, and Gorsuch argue that the Sixth Circuit was incorrect in ordering a hearing based on a previous case, Remmer v. United States. However, the Court concluded in Remmer that “any private communication, contact, or tampering directly or indirectly, with a juror during a trial about the matter pending before the jury is, for obvious reasons, deemed presumptively prejudicial.” It would seem to directly contradict Thomas’s dissent:

We do not know from this record, nor does the petitioner know, what actually transpired, or whether the incidents that may have occurred were harmful or harmless. We therefore vacate the judgment of the Court of Appeals and remand the case to the District Court with directions to hold a hearing to determine whether the incident complained of was harmful to the petitioner, and if after hearing it is found to have been harmful, to grant a new trial.

Which is exactly what the Sixth Circuit did.

Jackson’s first dissent

Justice Ketanji Jackson wrote her first opinion last week, dissenting from a death penalty case.

Davel Chinn was convicted and sentenced to death for the 1989 murder of Brian Jones in the midst of a robbery. In one of the case’s earliest hearings, an Ohio court remarked on “the substantial amount of residual doubt” about Chinn’s culpability, pointing to three separate witnesses describing a shooter “significantly taller” than Chinn and another three people providing an alibi for Chinn. Additionally, the prosecution had no physical evidence implicating Chinn and fingerprints from the stolen vehicle were not a match.

None of this evidence—or lack thereof—is at issue before the U.S. Supreme Court, however. The star witness against Chinn was his alleged accomplice Marvin Washington. The entire case hinged on his testimony: “If the jury accepted Washington’s testimony, the jury was certain to convict [Chinn], but if the jury did not believe Washington, it was certain to acquit appellant of all charges,” the Ohio Supreme Court found.

The problem is that the prosecution hid evidence indicating that Washington had an intellectual disability that may have affected his ability to remember, perceive fact from fiction, and testify accurately.

The records revealed that Washington had a full-scale IQ of 48 and “function[ed] well below his chronological age.” They painted a picture of a boy with severe memory issues, an alarming ability to be swayed by external information, and a habit of conforming his answers to include that external information so as to give the “correct” response. The court psychologists described Washington as “very eager to please” and “easily swayed.”

They described how Washington would confuse external information with his own, self-generated thoughts, and then would offer answers that he believed to be the correct response. They explained that his ability to “acquire new learning is easily interrupted or interfered with if there are distractions or other competing stimuli present during his attempts to acquire new information.” And they noted that he “tends to distort or confuse the new (external) information he attempts to acquire with self-generated messages” and “often offered semantically close self-generated answers in an attempt to give the correct response.”

Justice Ketanji Jackson, dissenting with Justice Sonya Sotomayor, wrote that she would have reversed the lower courts because the Sixth Circuit Court of Appeals applied the wrong standard when determining if the suppressed evidence would have affected the trial’s outcome:

The Sixth Circuit did not appropriately apply the materiality standard. Although the Sixth Circuit purported to recognize that the two standards were different, it simultaneously claimed that “‘reasonable probability’ for Brady’s purposes is effectively the same as a more-probable-than-not Standard.” It further said that “[t]he Brady question now” before the court was “whether it is more probable than not that the withheld evidence would have created a different result.” That reasoning violated the spirit, if not the letter, of our many cases holding that the two standards are not the same and that ‘reasonable probability’ is a lower standard

Justice Sotomayor’s dissent

Willard Anthony was indicted on rape and human trafficking charges in Louisiana in 2015 based on the testimony of two women and circumstantial evidence. The prosecution called Assistant District Attorney Tommy Block to bolster the testimony of the women. Block had presented the case against Anthony to the grand jury and screened the cases against the two women before deciding to refuse charges.

During Mr. Block’s testimony, defense counsel objected 16 times and moved for mistrials four times, arguing, inter alia, that Mr. Block was improperly offering his opinion about guilt and witness credibility and was presenting hearsay evidence from his own investigation. All of counsel’s objections were overruled, and his motions for mistrial were denied, but he maintained a continuing objection throughout the testimony.

Anthony was found guilty as charged by the jury. He appealed the decision, and the Fifth Circuit Court of Appeals ruled in his favor:

The court recognized that “a prosecutor may assume the dual role of witness and advocate only under extraordinary circumstances.” 2017–372, p. 15 (La. App. 5 Cir. 2/20/19), 266 So. 3d 415, 426. “The danger,” the court observed, “is that the jury might give inordinate weight to the prosecutor’s testimony.” Ibid. Applying those principles here, the court concluded that “Mr. Block’s testimony exceeded the scope permissible for a fair and impartial trial” in violation of Anthony’s constitutional rights to due process and a fair trial. Id., at 426–427.

That was so, the court reasoned, because ADA Block “vouched for the credibility of the State witnesses,” suggested that he “was aware of further evidence that was not presented to the jury,” and “improperly commented on [Anthony’s] guilt.” Id., at 427–428. ADA Block did so “while using the prestige and dignity of his office to bolster the State’s case.” Id., at 427. The court accordingly found that ADA Block’s testimony amounted to structural error because the testimony violated Anthony’s right to a “presumption of innocence.”

The intervening years saw a variety of appeals, ultimately resulting in a new panel of the Fifth Circuit upholding Anthony’s convictions.

Last week, the U.S. Supreme Court declined to hear the case, with Justice Sonya Sotomayor and Justice Kentaji Jackson dissenting (page 23). As they explain, Block’s testimony amounts to prosecutorial misconduct that should have resulted in a new trial for Anthony:

Under the correct standard, ADA Block’s testimony was clearly not harmless error. By using the weight of his office to vouch for and validate the State’s evidence, and by opining on the conclusions to be drawn from that evidence, ADA Block’s testimony created a legitimating lens through which the jury was invited to view the entirety of the State’s case. It is thus impossible to say beyond a reasonable doubt that his pervasive testimony did not contribute to the jury’s verdict…

Our criminal justice system holds prosecutors to a high standard. The prosecutor is “the representative not of an ordinary party to a controversy, but of a sovereignty.” Berger, 295 U. S., at 88. From that special role, “improper suggestions, insinuations, and, especially, assertions of personal knowledge are apt to carry much weight against the accused when they should properly carry none.” Ibid. It is an inescapable truth that the “power and force of the government tend to impart an implicit stamp of believability to what the prosecutor says.” Hall v. United States, 419 F. 2d 582, 583–584 (CA5 1969).

These principles demand careful scrutiny of the rare cases in which a prosecutor takes the stand as a sworn witness in a jury trial. Because this case presents one of the most egregious instances of prosecutorial testimony amounting to prosecutorial misconduct, I respectfully dissent from the Court’s refusal to issue a summary reversal.