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Two new CVSGs, Sotomayor criticizes trial court in capital case

This morning the Supreme Court issued additional orders from last Friday’s conference. The justices had announced three new grants from that conference on Friday, and (as expected) they did not add any more cases to their merits docket today. The justices asked the U.S. solicitor general to weigh in on two cases, and Justice Sonia Sotomayor issued a statement regarding the court’s announcement that it would not review an appeal by a death-row inmate in Alabama. But the justices did not act on several high-profile petitions for review, including challenges to a 93-year-old cross on public land in Maryland and to mandatory bar dues for lawyers.

The justices called for the views of the U.S. solicitor general in Swartz v. Rodriguez, a petition for review filed by Lonnie Swartz, a U.S. Border Patrol agent alleged to have shot and killed a 16-year-old Mexican boy who was walking on the Mexican side of that country’s border with the United States. The U.S. Court of Appeals for the 9th Circuit allowed a lawsuit by the boy’s mother, Araceli Rodriguez, to go forward. Earlier this fall, the justices asked the government to file a brief in another case involving a cross-border shooting; both cases hinge on whether the plaintiffs can rely on a 1971 Supreme Court decision allowing a lawsuit seeking money from federal officials for violations of the Constitution.

The justices also sought the government’s opinion on the petition filed by Ariosa Diagnostics, a company that has developed a prenatal test that “provides a non-invasive way to test for chromosomal abnormalities, reducing the need for invasive procedures, such as amniocentesis, that can increase the risk of miscarriage.” The question on which the government will weigh in involves when unpublished disclosures made in a published patent application and an earlier application on which it relies enter the public domain.

The justices denied review in the case of Tawuan Townes, an Alabama death-row inmate. Justice Sonia Sotomayor agreed with the court’s disposition of Townes’ case, but she wrote separately to express reservations about the trial court’s conduct.

Sotomayor explained that the constitutionality of Townes’ conviction “hinges on whether the trial court instructed jurors that they ‘may’ infer his intent to kill a victim or that they ‘must’ do so.” But, she continued, there is no way to know which instruction the trial court used because there are two conflicting transcripts, and the audio recording has been destroyed.

Without any definitive evidence one way or the other, Sotomayor concluded, she was “unable to conclude that Townes’ conviction is unconstitutional.” However, she emphasized, a “reliable, credible record is essential to ensure that a reviewing court—not to mention the defendant and the public at large—can say with confidence whether those fundamental rights have been respected.” “By fostering uncertainty about the result here,” Sotomayor continued, “the trial court’s actions in this case erode that confidence. That gives me—and should give us all—great pause.”

This post was originally published at Howe on the Court.

Recommended Citation: Amy Howe, Two new CVSGs, Sotomayor criticizes trial court in capital case, SCOTUSblog (Oct. 29, 2018, 11:02 AM),