No Supreme Court justices dissented Monday from the court’s refusal to hear an appeal from Mississippi death row prisoner Tony Terrell Clark, who argued that he was forced to meet an “impossible” standard.
Clark had claimed that his right to an impartial jury was violated when Black people were kept off the jury because of their race. But to vindicate his rights on appeal in Mississippi state court, he said, he had to prove that the outcome of his trial would have been different without the jury violation.
Yet even though Justice Sonia Sotomayor agreed with her colleagues that Clark’s appeal didn’t merit high court review, she penned a separate statement to call out what she deemed the “problematic” standard that the state’s top court applied against him, in the context of his claim that his trial counsel ineffectively challenged the prosecution’s strikes of prospective jurors.
Clark’s case involved an interplay between two types of legal claims: a “Batson” claim and a “Strickland” claim, both of which are named for the 1980s-era Supreme Court cases from which they came. Batson claims (from the case of Batson v. Kentucky) are when a defendant argues that a potential juror was illegally kept off the jury because of their race. Strickland claims (from the case of Strickland v. Washington) are when a defendant argues that their lawyer was ineffective. Defendants bringing Strickland claims must show two things: 1) that their lawyer was deficient and 2) that the defendant was prejudiced by the deficiency.
The “impossible” Mississippi standard, as Clark put it, was that to prove on appeal that he was prejudiced by his counsel’s mishandling of a Batson challenge, the state high court said he needed to show that the outcome of his trial would have been different had the lawyer performed effectively.
Sotomayor took issue with that. “The Mississippi Supreme Court’s approach, to the extent it requires a criminal defendant to show that a competently presented Batson challenge would have produced a different trial outcome, is almost certainly wrong,” the Obama-appointed justice wrote.
She noted that other courts have taken a different approach: They make the narrower inquiry of whether the Batson challenge itself would have been successful if the lawyer had handled it properly, rather than looking at whether the resulting trial would have turned out differently, as Mississippi does.
In his Supreme Court petition, Clark explained that his post-conviction counsel tried to meet the “impossible” standard by talking to a potential Black juror who was kept off the jury. “As common-sense dictates,” his petition said, the struck juror “could not offer an opinion on whether she would have voted guilty or for a death sentence if she was on the jury.”
In her statement Monday, Sotomayor said her colleagues “should one day resolve” the issue and decide “that Strickland does not require the kind of prejudice analysis that the Mississippi Supreme Court has adopted for Batson-related ineffectiveness claims.”
But the justice conceded that Clark’s appeal didn’t present the proper case for doing so. She recalled that the state high court found that Clark failed to satisfy not only the prejudice prong but also the deficiency prong, and that he didn’t argue the deficiency issue to the justices. “Given the independent basis on which Clark’s Strickland claim failed below, I concur in the denial of Clark’s petition for a writ of certiorari,” she wrote.