U.S. Supreme Court Justice Sonia Sotomayor, (left) (AP Photo/Nam Y. Huh); Kevin Burns (right) (photo via TN Department of Corrections).
Justice Sonia Sotomayor lamented the U.S. Supreme Court majority’s refusal to correct an “egregious error” that now means a murder defendant will be executed “despite a very robust possibility” that he did not actually shoot the victims as the jury believed he had.
Sotomayor penned a lengthy dissent, joined by Justices Elena Kagan and Kentanji Brown Jackson, to the Court’s denial of certiorari in the appeal of Kevin Burns, a man who was sentenced to death after being convicted of murder in the 1992 shooting deaths of Damon Dawson and Tracy Johnson.
The victims had been sitting in a car drinking gin and smoking marijuana when six men came upon them and robbed them. Three of the six assailants opened fire with handguns, killing Dawson and Johnson and injuring two others — but which of the three men was responsible for the gunshots remained an issue in the case. As Sotomayor put it in her dissent: “No definitive narrative emerged regarding who had shot the victims.”
Ultimately, Burns and two others were prosecuted for the murders in separate trials. The two others were tried first, convicted, and sentenced to life in prison. Burns was acquitted of premeditated murder, convicted of felony murder, and sentenced to death.
Burns’s murder conviction was based on the felony murder rule, which allows prosecutors to charge defendants with murder even when a defendant did not directly cause a victim’s death. In this case, because Burns was found to have participated in the robbery, the jury never had to decide who actually killed the victims. The felony murder rule has come under increasing fire in progressive criminal justice reform circles in recent years, particularly in the context of capital convictions.
During the penalty phase of Burns’s trial, his lawyer could have presented mitigating evidence that to show that Burns was not responsible for shooting the two victims, but failed to do so. Although Burns would still have been guilty of the underlying felony murder, the fact that he did not personally pull the trigger “was plainly relevant to the jury’s determination whether to sentence him to death,” according to the dissenting justices.
Burns appealed his death sentence, claiming ineffective assistance of counsel and arguing that his lawyer only minimally prepared for the sentencing proceeding and completely failed to raise evidence that Burns’s co-defendant had been the real shooter. A split panel of the U.S. Court of Appeals for the Sixth Circuit ruled against Burns. Senior U.S. Circuit Judges Alice Batchelder, a George H.W. Bush appointee, and Deborah Cook, a George W. Bush appointee, found that Burns’s defense lawyer performed adequately. Barack Obama appointee U.S. Circuit Judge Jane Branstetter Stanch, however, disagreed and found that the lawyer’s failure to introduce mitigating evidence had not been a tactical decision, but rather, an unreasonable error.
In his petition to the Supreme Court, Burns’s lawyers argued that their client was so clearly entitled to a favorable ruling that the justices should issue a “summary reversal” and vacate Burns’ death sentence. The Court’s 6-3 majority not only refused to reverse, but it refused to even hear the case, thus leaving the Sixth Circuit’s ruling — and Burns’s death sentence — in place.
The result not only upholds Burns’s fate, but also leaves the Sixth Circuit’s standards for defense counsel in place for future capital cases.
Sotomayor said in her dissent that she would have summarily vacated the Sixth Circuit’s “error-laden (and precedential) decision.” She explained her rationale: evidence of the precise circumstances of a crime “may be particularly important” in a felony murder case, because the jury’s thoughts on the level of a defendant’s culpability “will often turn on the defendant’s particular role and mental state during the offense.” Sotomayor called the value to the jury in Burns’s “especially obvious,” given that the only aggravating factors prosecutors introduced against Burns to support a death sentence were factors relating to the victims’ deaths — which Burns may not have directly caused.
Sotomayor even explained what Burns’s lawyer could have done during the penalty phase: attacked an eyewitness identification of Burns that entirely — and incorrectly — relied on a “Jheri curl hairstyle.” A neighbor who observed the crime identified Burns in court as the person seen committing the crime based on the hairstyle. However, Burns’s lawyer did not point out a critical detail: “While some of the six men had Jheri curls at the time of the crime, Burns, who had very short hair then, did not.”
What’s more, Sotomayor noted, Burns’s lawyer said nothing about the fact Burns may well have been confused with one of the other six assailants involved in the crime. In the group, there was another man named Kevin, who was identified in police statements as having been the one to instigate the crime. This other Kevin not only had a recent prior conflict with one victim, but also had a Jheri curl hairstyle at the time of the crime.
Sotomayor wrote that in rejecting Burns’s ineffective assistance of counsel claim, the Sixth Circuit made a “glaring mistake” that “leaps off the page,” and chastised her fellow justices for their refusal to correct it.
Per the dissent:
Evidence that Burns did not shoot the victim is not, of course, mere residual doubt evidence. Because Burns was convicted of felony murder, the jury did not have to find that he shot anyone in order to convict him. Thus, evidence that he was not the shooter goes to the circumstances of the felony murder and his level of culpability, rather than guilt.
Failure to leave out such important evidence should have qualified as “deficient performance” of Burns’s lawyer under the standards set by the Supreme Court under the controlling 1984 case Strickland v. Washington, said Sotomayor, a former prosecutor.
The justice called the majority’s denial of certiorari “disheartening,” particularly because the circumstances are in line with other cases in which the Court found summary action appropriate. Not only is there no dispute about the relevant facts and a clear conflict with Supreme Court precedent, said Sotomayor, but a person’s life is on the line.
“With so much at stake, I would vacate the decision below and remand,” Sotomayor wrote. “Because the Court refuses to do so, the indefensible decision below will be the last for Burns.”
In addition to Sotomayor, Justices Neil Gorsuch and Samuel Alito are also former prosecutors. Justice Ketanji Brown Jackson is the first Supreme Court justice to have been a former public defender.
Attorney Richard Lewis Tennent, counsel for Burns, commended the three dissenting Supreme Court justices for being “willing do do the extraordinary,” in an emailed statement Monday, referring to the justices’ discussion of granting summary relief.
“Unfortunately, our modern federal court system is not designed to address matters of mercy and redemption, or even to correct errors of law,” said Tennent, who said that relieving Burns of the “unjust sentence of death” now lies with Governor Bill Lee (R) of Tennessee.
Tennent went on to say that he hopes Lee considers the man Burns is today, and called his client a “remarkable” man of “incredible character.”
“Despite being sentenced to death for a killing he did not commit, he has remained faithful and is a faith leader on death row,” Tennent said of his client.
The Rev. Dr. Kevin Riggs, Senior Pastor at Franklin Community Church, also provided a statement that quoted from scripture, “While we may be ‘perplexed‘ by this decision, we are ‘not in despair’ and we are ‘not abandoned; struck down, but not destroyed’ (2 Corinthians 4:8).”
Riggs said that he ordained Burns as a minister over five years ago, and that Burns regularly preaches via telephone.
Attorneys for the State of Tennessee declined to comment on the ruling.
Editor’s note: This piece was updated from its original version to include statements from counsel.
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