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Sotomayor Goes After Unethical Prosecutors and Conservative Judges on First Day of New SCOTUS Term


U.S. Supreme Court Justice Sonia Sotomayor began the October term with two opinions related to orders which offer some telling insights into the progressive jurist’s legal philosophy.

Neither of Sotomayor’s opinions carry the force of law and are properly understood as judicial musings about the high court’s potential and more abstract notions of what justice means and/or could be in the future. In each case, the full court declined to hear the case at issue and in each case, the justice agreed with her peers but took the opportunity to elaborate on her own decision-making processes as well as pitfalls contained in the lower court records.

In the first case, stylized as Kaur v. Maryland, a criminal defendant, Raminder Kaur, was twice convicted of first-degree murder in Maryland but raised constitutional Sixth Amendment issues regarding ineffective assistance of counsel following each trial.

The first time, she was granted a new trial–but in order to convince a court that she was entitled to that new trial, Kaur was forced (by the trial judge) to turn over certain defense documents to the prosecution. In turn, those same state attorneys served as the prosecution in Kaur’s second trial. She appealed on the theory that her Sixth Amendment rights were prejudiced once again by the state effectively knowing the ins-and-outs of her entire defense strategy.

Two appeals courts disagreed based on the finding that Kaur had not sufficiently “demonstate[d] a realistic possibility that she was harmed in the second trial by the prosecutors’ access to her privileged information or that the prosecutors used such information to their advantage,” according to Sotomayor’s summary of the case.

While the left-leaning justice ultimately agreed to deny certiorari here, she couched her own rejection in the idea that the “question” posed by Kaur’s case “could benefit from further consideration by the lower courts.”

Sotomayor went on to sketch out three major issues that are likely to be implicated in such similar cases.

“[I]t is deeply disconcerting that the state has suggested that defendants who raise ineffective-assistance-of-counsel claims during the trial phase must forfeit their right to privileged communications with counsel,” the opinion argues as the first salient point. “To vindicate the past denial of her Sixth Amendment right to effective assistance of counsel, a defendant should not have to waive her Sixth Amendment right to attorney-client confidentiality for purposes of any retrial to which she is entitled.”

Secondarily, Sotomayor notes that Kaur’s case “demonstrates many insidious ways that potential Sixth Amendment violations can affect the course of a trial.”

While dispensing with several hypothetical scenarios regarding potentially unscrupulous behavior by the state–which Sotomayor notes could have occurred intentionally or subconsciously, she also notes that the state’s access to Kaur’s defense file prompted the defendant to decline to testify during her second trial because she knew the prosecutors–this time around–were armed with apparently ample ammunition to attack her character.

Finally, Sotomayor chastised the specific attorneys for making the choice to personally retry Kaur’s case. While admitting that there is no specific prohibition against such behavior, she says that basic standards of justice were offended by the state’s attorneys’ behavior.

Again,the opinion, at length:

Prosecutors wield an immense amount of power, and they do so in the name of the State itself. That unique privilege comes with the exceptional responsibility to ensure that the criminal justice system indeed serves the ends of justice. Prosecutors fall short of this task, and therefore do a grave disservice to the people in whose name they litigate, when they permit them- selves to enjoy unfair trial advantages at defendants’ expense. Here, regardless of the reason for their acquisition of Kaur’s privileged information, and regardless of whatever minimum conduct was required of them by the Sixth Amendment, the prosecutors should have recused them- selves from participating in Kaur’s second trial as a matter of professional conscience. Their failure to do so casts a troubling and unnecessary shadow over Kaur’s conviction and sentence to life imprisonment.

In the second case, stylized as Henness v. DeWine, a convicted murderer, Warren Henness, complained that the three-drug cocktail that Ohio plans to use to kill him is unconstitutional because the toxic combination will leave him with the pain of drowning as he dies.

Two courts rejected the contention based on the idea that Henness had failed to show that there was “a feasible and readily implemented alternative method of execution,” per Sotomayor’s summary of this Eighth Amendment case.

The justice did not take up that issue but wrote separately to disagree with, in her words, “the Sixth Circuit’s novel and unsupported conclusion that pain is constitutionally tolerable so long as it is no worse than the suffering caused by a botched hanging.”

In this brief opinion, Sotomayor faults the appeals court for improperly applying the Supreme Court’s own precedent viz. the 2019 case of Bucklew v. Precythe.

In that case, the conservative majority on the court said people condemned to die by the state are not entitled to a painless death but cannot be subject to “superaddition of terror, pain, or disgrace” and, therefore, must identify “feasible, readily implemented” alternative procedure that would reduce such a superadditive risk.

But Sixth Circuit Judges Danny Boggs, Eugene E. Siler Jr. and Jeffrey Sutton—appointed by Ronald Reagan, George H.W. Bush, and George W. Bush, respectively—apparently misread this standard:

Even assuming, then, that Ohio’s three-drug protocol will cause petitioner to feel a sensation of “drowning and suffocation” as he dies, the court concluded that such pain is constitutionally acceptable because it looks “a lot like the risks of pain associated with hanging.” The Sixth Circuit thus appears to have created a categorical rule that a method of execution passes constitutional muster so long as it poses no greater risk of pain than the slow suffocation of a hanging gone wrong.

“The Sixth Circuit erred in enshrining hanging as a permanent measure of constitutionally tolerable suffering,” Sotomayor went on. “Its decision conflicts with this Court’s recent precedent, which makes clear that the proper inquiry is comparative, not categorical.”

The justice then offered some dicta as to the proper way the high court’s precedent should be understood in death penalty cases–and the likely way that the court’s liberal wing will approach such cases to come.

“[Case law] does not provide a categorical safe harbor for methods of execution that, in a court’s estimation, will cause no greater suffering than that caused by certain traditional methods,” Sotomayor concludes. “If there were a feasible and readily implemented method of execution that would prevent petitioner from experiencing a sensation akin to drowning as he dies, it would be cruel and unusual for Ohio to refuse to adopt it.”

[image via Leigh Vogel/Getty Images]

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