Jackson Dissents as Supreme Court Rejects Petition From Death Row Inmate

U.S. Supreme Court Justice Ketanji Brown Jackson poses for an official portrait in Washington on Oct. 7, 2022. (Alex Wong/Getty Images)

U.S. Supreme Court Justice Ketanji Brown Jackson on May 13 dissented as most of her fellow justices rejected a request from a death row inmate.

Gustavo Tijerina Sandoval wanted the nation’s top court to consider arguments against how potential jurors were gathered without him being present and when jury selection began. Mr. Sandoval, a Mexican native who was convicted of capital murder after killing an off-duty Border Patrol agent in 2014, said his constitutional rights to due process were violated by how the jury selection unfolded.

Lower courts ruled that Mr. Sandoval’s rights were not violated, prompting him to seek a Supreme Court ruling.

In an unsigned list issued on Monday, the request to review the lower court decisions, or a writ of certiorari, was denied. That means at least six justices chose not to take up the request.

Justice Jackson, the only justice appointed by President Joe Biden, said she would have accepted the writ.

The request involves how potential jurors gathered for a “special venire,” or a panel for Mr. Sandoval’s case, without him being present.

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The Texas Court of Criminal Appeals (TCCA) said Mr. Sandoval did not have the right to be present for the special proceedings.

“The TCCA’s ruling raises a significant and certworthy question about whether criminal defendants have a due process right to be present in such circumstances,” Justice Jackson wrote in her dissent. “In my view, the answer is yes, and this Court should have granted the petition for certiorari to furnish that important holding.”

The appeals court said that the defendants’ right to be present “is rooted to a large extent in the right to confrontation,” and the question of whether Mr. Sandoval’s rights were violated centered on whether the special proceedings were part of his trial “or otherwise had a reasonably substantial relation to his opportunity to defend himself.”

While there are differences between the special proceedings and the normal process for vetting potential jurors, neither process requires the presence of a defendant, the court ruled. Both processes are different from preliminary examinations of jurors, a stage known as voir dire, according to the court.

Justice Jackson said instead that the special proceedings are similar to voir dire and therefore Mr. Sandoval’s absence meant the proceedings were not fair and just.

“To start, even before they arrived at the courthouse, the potential jurors in this case had already been informed of the parties’ identities, the allegations against Tijerina Sandoval, and the fact that the state sought the death penalty—critical facts about this case in particular,” she wrote. “Then, on the day they were brought in for questioning, the prospective jurors came before the judge, where they could react to that case-related information in the context of the court’s assessment of their qualifications and ability to serve. Texas’s special venire hearings thus shared many of the key qualities that make the defendant’s presence at voir dire proceedings constitutionally indispensable.”

Most of the proceedings were conducted off the record but in one statement that was captured, a potential juror said that, “in this case, I feel uncomfortable.”

“It is entirely possible that that particular juror was predisposed to look unfavorably at the facts of the case or at Tijerina Sandoval himself. But the defense could not follow up on that comment, since Tijerina Sandoval was not present for those prequalification proceedings and was thus presumably unaware of that remark,” Justice Jackson said. “There is no evidence that the trial court informed Tijerina Sandoval of this panel member’s comment before voir dire. Nor is it clear whether that juror was ever asked to explain the reasons for the stated discomfort.”

Other courts have found that in some proceedings before the voir dire stage, defendants have the right to be present, the justice noted, including a different circuit court in the 1988 ruling in U.S. v. Bordallo.

“That means the lower courts diverge as to whether a criminal defendant has a due process right to attend proceedings like the qualification hearings here,” Justice Jackson said. “That debate involves an issue of clear constitutional and practical significance that this court should have granted certiorari to resolve. Therefore, I respectfully dissent.”

Jennae Swiergula, senior counsel with the Texas Defender Service, who is representing Mr. Sandoval, told The Epoch Times in an email, “We are disappointed that the Supreme Court decided not to take up Mr. Tijerina Sandoval’s case and instead left in place a Texas Court of Criminal Appeals decision which allows Texas courts to proceed with a portion of jury selection in a defendant’s absence in capital cases.”

She added, “As Justice Jackson’s dissent makes clear, for a defendant’s trial to be fair, they must be a full participant in the process of selecting who will be on their jury.”

The office of Texas Attorney General Ken Paxton did not return a request for comment.

Justice Sonia Sotomayor, appointed by former President Barack Obama, joined the dissent. It’s unclear if another justice wanted to take up the request. Accepting a writ of certiorari requires at least four justices.