Sotomayor expresses ‘deep concern’ about failure to preserve tape in appeal hinging on one word

- Sotomayor expresses ‘deep concern’ about failure to preserve tape in appeal hinging on one word

U.S. Supreme Court

Justice Sonia Sotomayor on Monday issued a statement expressing “deep concern” over an Alabama judge’s failure to preserve an original recording of his disputed jury instruction in a capital case.

Sotomayor said she agreed with the U.S. Supreme Court’s decision to deny certiorari in the case of Tawuan Townes because he was not able to show constitutional error without the recording. The Supreme Court had requested the tape, but the trial judge said it no longer existed. Sotomayor’s statement is here.

At issue is one word in the trial judge’s instructions to jurors: Did the judge tell jurors they “may” infer Townes intended to kill a man based on the circumstances of a 2008 burglary, or did the judge say jurors “must” infer intent? Intent was a needed element of proof for a capital murder conviction. Absent the intent, Townes was guilty only of felony murder.

The original certified transcript prepared by a court reporter said the judge used the word must, which led the Alabama Court of Criminal Appeals to overturn Townes’ conviction. The appeals court reasoned that using the word must relieved the state of the burden to prove intent to kill.

Townes had argued he shot at the burglary victim to scare him and hadn’t intended to kill him. In his statement to police, Townes adamantly denied intending to kill the victim, according to the decision by the Alabama Court of Criminal Appeals. Townes said he intended only to scare the victim and his rifle used only “little bullets.” Townes was represented by the Equal Justice Initiative, which said in a 2014 press release that he had just turned 18 at the time of the crime and had only completed the eighth grade.

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After the Alabama appeals court ruled, the trial judge filed a supplemental record asserting the transcript was wrong and he had used the word may. The judge said the audio recording would back him up.

The Alabama appeals court instructed the judge to appoint a new court reporter to listen to the recording and submit a new transcript. The new 56-page transcript “differed from the original transcript by exactly one word,” Sotomayor wrote. The new transcript said the judge used the word may instead of “must.” The Alabama Court of Criminal Appeals then affirmed the original conviction and death sentence.

There is no indication the Alabama Court of Criminal Appeals listened to the original tape, Sotomayor said.

“The Constitution guarantees certain procedural protections when the government seeks to prove that a person should pay irreparably for a crime. 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,” Sotomayor 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.”

The case is Townes v. Alabama.

Hat tip to SCOTUSblog, which covered Sotomayor’s statement here.


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Edward Lott, Ph.D., M.B.A. is president and managing partner of Allentown-based ForLawFirmsOnly Marketing, Inc., a local search and digital marketing agency that offers clients lead generation, local seo and Google Maps Domination. Ed has been a digital entrepreneur since 1994, having discovered very early the opportunities the Internet offered. After having spent over two decades helping attorneys grow their practice, Ed joined the staff of ForLawFirmsOnly Marketing as President and Managing Partner, where he is expanding the agency’s cutting-edge services to the legal market. A true marketing futurist, Ed's vast experience working directly with attorneys has given him a unique perspective on law firm marketing not found in many other digital marketing agencies. Ed has reshaped the offerings of ForLawFirmsOnly to focus on growing law firms through a holistic approach to digital marketing evident in the reformulated lead generation processes now in place. Want to learn more about ForLawFirmsOnly Marketing, their lead generation programs, or just talk to Ed about his visions for helping law firms grow? Call him at 855-943-8736.

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