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Justices balk at rejection of prosecutorial misconduct issue

Justice Ketanji Brown Jackson not only joined the dissent Monday but separately signed her first opinion since joining the U.S. Supreme Court.

WASHINGTON (CN) — The Supreme Court refused Monday to take up an appeal from a man convicted of rape and sex trafficking after the jury heard witness testimony found to have trampled his presumption of innocence.

“The prosecutorial misconduct in this case is not only blatant and egregious, but a clear due process violation,” Justice Sonia Sotomayor wrote in a 15-page dissent. Joined by Justice Ketanji Brown Jackson, the women said the court was wrong to deny Willard Anthony a writ of certiorari, and that they would have summarily reversed.

Anthony was sentenced to life without parole in 2016 — one year after a 24-year-old woman recovered from a Louisiana hotel in a prostitution sting told detectives that she had been forced into the sex work after she was drugged and abducted at gunpoint from a Florida. The woman said she tried to escape, but that Anthony and his future co-defendant, Pierre Braddy, beat her for a day and then raped her at gunpoint.

The state called two women who had been arrested but ultimately not charged with prostitution to testify against Anthony at his trial. They each recalled events where they had witnessed and experienced Anthony be physically and sexually abusive, but Anthony’s lawyers suggested that the women may have negotiated a deal with prosecutors in exchange for their testimony, making them unreliable witnesses. 

To rebut this insinuation, Louisiana called as a witness the grand jury prosecutor who had investigated Anthony’s crimes. In Anthony's petition to the Supreme Court earlier this year, his attorney Letty Di Giulio called the move “an extraordinary departure from ordinary trial practice."

“The prosecutor testified at length and over repeated objections and mistrial motions from the defense that he firmly believed in the credibility of the ‘victims,’ the guilt of the defendant, the strength of the State’s evidence (both known and unknown to the jury), and his opinion (at times incorrect) about the law applicable to the case,” Di Giulio continued.

While the Fifth Circuit Court of Appeals found that the error from letting the prosecutor testify was harmless, Sotomayor shredded that conclusion Monday.

“The court reached this holding after applying an incorrect harmless-error standard and disregarding compelling record evidence of prejudice,” she wrote. “Because the court below clearly misapplied existing law in a manner that denies fundamental justice, I would summarily reverse.”

Anthony’s attorney applauded Sotomayor and Jackson for speaking so passionately about the case.

“I'm obviously very disappointed that the Court did not accept review and summarily reverse in this case but am appreciative that Justices Sotomayor and Jackson took the time to shine the light on the clear misconduct by the prosecution,” Di Giulio said in a statement Monday. “When an individual prosecutor is permitted to act as inquisitor, witness, judge, and jury, our criminal justice system has failed to do the job our Constitution expected it to do."

Because the criminal justice system holds prosecutors to a high standard, Sotomayor notes that testimony from these officials imparts “an implicit stamp of believability” — something that could have influenced the jury in this case. This case presents one of the most egregious instances of prosecutorial testimony amounting to prosecutorial misconduct,” Sotomayor wrote.

Having defeated Anthony's petition for a writ of certiorari, the Jefferson Parish District Attorney’s Office thanked the majority while also noting "we respect the dissent as authored by Justice Sotomayor."

The dissent was one of five included in Monday's order list, which did not add any new cases to the high court's calendar. Another of the dissents marked Justice Jackson's first opinion since joining the court.

Joined by Sotomayor here, the Biden appointee said she would have summarily reversed for Davel Chinn, who claims that the state of Ohio suppressed exculpatory evidence at his trial for a lethal 1989 robbery.

“Because Chinn’s life is on the line, and given the substantial likelihood that the suppressed records would have changed the outcome at trial based on the Ohio courts’ own representations, I would summarily reverse to ensure that the Sixth Circuit conducts its materiality analysis under the proper standard,” Jackson wrote.

Chinn’s attorney Rachel Troutman had argued in a petition to the high court that the jury might not have credited the testimony from the prosecution's key witness against Chinn if they knew that the witness had an intellectual disability that could prevent him from testifying accurately. 

Troutman and her fellow public defender Erin Gallagher said in a statement Monday that Justices Jackson and Sotomayor recognized the injustice in upholding Chinn’s conviction and death sentence. “Ohio must not exacerbate the mistakes of the past by pursuing Mr. Chinn’s execution,” they wrote.

Justice Neil Gorsuch penned two dissents Monday, one about disabled veteran Nicholas Buffington and the other about Ramin Khorrami, who was convicted of fraud in Arizona by a jury of just eight people.

Arizona is one of just six states that "tolerate smaller panels," Gorsuch wrote, the others being Connecticut, Florida, Indiana, Massachusetts and Utah. Calling "it ... difficult to reconcile their outlying practices with the Constitution," the Trump appointee noted that there had even been a trend to keep juries smaller during the Jim Crow era "as part of a deliberate and systematic
effort to suppress minority voices in public affairs."

The Arizona Supreme Court affirmed Khorrami's conviction, however, on the basis that it was bound by Williams v. Florida, a 1970 decision upholding Florida's use of six-member juries in cases involving serious criminal accusations.

As Gorsuch sees it, however, "Williams was wrong the day it was decided, it remains wrong today, and it impairs both the integrity of the American criminal justice system and the liberties of those who come before our Nation’s courts.

Attorneys at WilmerHale argued in Khorrami's petition to the high court that a jury of 12 is a guaranteed protection under the Sixth and 14th Amendments for defendants who are charged with a felony.

While Gorsuch wrote that "smaller panels tend to skew jury composition and impair the right to a fair trial is no new insight," he also noted that some states might have had legitimate reasons for creating the policy.

"Arizona, for example, may have been trying to cut costs when it adopted its law permitting 6-member juries in 1972 shortly after this Court decided Williams," he wrote.

Justice Brett Kavanaugh did not join Gorsuch's dissent but said he would have taken up Khorrami's case.

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