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Ketanji Brown Jackson’s latest dissent shows GOP’s Supreme Court grip

Justices Sotomayor and Kagan joined Jackson in the latest case showing the right-wing Supreme Court's 6-3 split.


Justice Ketanji Brown Jackson continues to make her mark in criminal cases, drawing attention to appeals in which the court has ignored defendants’ rights.

The latest example came Monday, in a death penalty case from Louisiana that the Supreme Court’s Republican majority rejected without comment. Jackson’s dissent was joined by fellow Democratic appointees Sonia Sotomayor and Elena Kagan. In addition to spotlighting Jackson’s continued recognition of criminal issues — she’s a former public defender and sentencing commissioner — the case serves as a reminder of the GOP’s grip on the 6-3 Supreme Court.

The dispute centered on David Brown, who was convicted of murder and sentenced to death in Louisiana state court. Jackson noted in her dissent that prosecutors failed to turn over a statement from one of Brown’s co-defendants ahead of trial that could’ve helped him. She explained: 

As it turned out, one of Brown’s codefendants, Barry Edge, had confessed to a fellow inmate. The prosecution obtained a statement from the inmate prior to Brown’s trial, but did not disclose it to Brown’s counsel until after his sentencing. In the confession, Edge explained that he and another codefendant, Jeffrey Clark, were “‘the only ones that were thinking rationally during th[e] highly charged situation,’” and that he “‘and Jeff[rey Clark] made the decision’” to kill the victim in order to help themselves.

That’s a problem because Brady v. Maryland, the landmark Supreme Court precedent from 1963, requires prosecutors to turn over evidence that’s favorable to a defendant and is material. Therefore, Jackson observed the seemingly obvious point that the statement satisfied both the favorability and materiality requirements. She wrote that the statement “supports an inference that Brown was not one of the individuals who killed or decided to kill the victim,” and it “supplied independent evidence corroborating Brown’s argument that he was not present during the murder and did not intend to kill the victim.”

Even current and former prosecutors — represented by MSNBC legal contributor Mary McCord — urged the justices to review the case and rule for Brown. They wrote, referring to Brown as “Petitioner” since he was petitioning the justices for review:

This statement could reasonably have been interpreted by the penalty-stage jury to undermine the prosecution’s case that Petitioner had the specific intent to kill and to therefore mitigate his culpability for the murder. Had the statement not been withheld, there is a reasonable probability that the penalty-stage verdict would have been different and the jury would not have imposed a death sentence.

Nonetheless, the Supreme Court majority rejected Brown’s appeal. Four votes are needed to hear a case, and that the dissenters fell one short is a reminder that Republicans rushed Justice Amy Coney Barrett onto the court ahead of the 2020 presidential election, following Ruth Bader Ginsburg’s death. Yet, even if the court agreed to hear the case, that wouldn’t have forced a different outcome from the GOP majority.