Murder Case With Dueling Transcripts Rejected by Supreme Court

WASHINGTON (CN) – In a capital-murder case where two transcripts are at odds on whether the trial was constitutional, Justice Sonia Sotomayor explained Monday that the Supreme Court had no choice but to turn away the appeal.

Though the court rejected the petition for certiorari by Tuwaun Townes, who fatally shot a man during a burglary, Sotomayor spoke out at the trial court’s loss of a recording that would prove unequivocally what instructions the court gave in Townes’ jury.

Based on the original transcript which showed an unconstitutional instruction to the jury — that they “must” infer Townes intended to commit murder — Townes was initially successful in appealing his conviction.

Sotomayor noted in her opinion today that such an instruction violates the due-process clause because it improperly relieves the state of its duty to prove each element of the crime beyond a reasonable doubt.

But shortly after the Alabama Court of Appeals reversed Townes’ conviction, Sotomayor said the trial court told the appellate court that court reporter mistranscribed a critical word: “The trial court judge insisted that he had properly instructed the jury that it ‘may,’ rather than ‘must,’ infer specific intent and that the audio recording of Townes’ trial confirmed as much.”

In parentheses, Sotomayor added that “the government, notably, had not contested the accuracy of the transcript.”

After a second court reporter retranscribed trial court proceedings based on an audio recording, the new transcript differed by only one word: “The new transcript said ‘may’ where the original had said ‘must.’”

Based on this revision, the Alabama Court of Appeals withdrew its reversal and affirmed Townes’ conviction, setting the stage for Townes to petition the Supreme Court for certiorari.

When the Supreme Court called for the record, including a copy of the recording, however, “the trial court informed this court’s clerk’s office that the recording no longer exists,” Sotomayor wrote.

She also noted that “there is no indication that the Court of Criminal Appeals itself reviewed the audio recording of the instructions.”

The justice lamented that the absence of the recording makes it impossible to know what actually happened at trial.

Because the second transcript is now the official record of the trial court proceedings, however, Sotomayor said this record stands in the way of her finding that Townes’ conviction is unconstitutional.

“But the absence of demonstrable constitutional error makes the doubts raised by the trial court’s unusual handling of this matter no less troubling,” she wrote. “In a matter of life and death, hinging on a single disputed word, all should take great care to protect the reviewing courts’ opportunity to learn what was said to the jury before Townes was convicted of capital murder and sentenced to death. Yet the trial court, after its unilateral intervention in Townes’ appeal resulted in dueling transcripts, failed to preserve the recording at issue — despite the fact that Townes’ case was still pending direct review, and, consequently, his conviction was not yet final. As a result, the potential for this court’s full review of Townes’ conviction has been frustrated.”

Sotomayor’s statement concludes with a reference to procedural protections guaranteed by the U.S. Constitution.

“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,” she wrote. “By fostering uncertainty about the result here, the trial court’s actions in this case erode that confidence. That gives me — and should give us all — great pause.”

No other justice concurred or issued a statement concerning the denial of certiorari concerning Townes, who was sentenced to death.

The case is one of dozens rejected by the Supreme Court today. It did not grant any writ of certiorari this morning but it did invite the U.S. solicitor general to submit briefs in two cases.

One of the cases involves a petition by Lonnie Swartz, a U.S. Border Patrol agent who shot and killed Jose Antonio Elena Rodriguez while the 16-year-old Mexican boy was walking on the Mexican side of America’s Southern border.

Though Swartz was acquitted of criminal charges, the Ninth Circuit refused this past August to throw out a civil suit by the boy’s mother, Araceli Rodriguez.

The Supreme Court also invited the government earlier this fall to file a brief in the cross-border shooting case Hernandez v. Mesa.

In the second case where the U.S. solicitor general has been asked to brief the Supreme Court, a company called Ariosa Diagnostics has developed a prenatal test that “provides a noninvasive way to test for chromosomal abnormalities, reducing the need for invasive procedures, such as amniocentesis, that can increase the risk of miscarriage.”

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