What happened
Justice Sonia Sotomayor agreed Monday with the U.S. Supreme Court's denial of certiorari to Mississippi capital defendant Tony Terrell Clark, but used a separate statement to warn that Mississippi's standard for Batson-related ineffective-assistance claims is likely out of step with constitutional principles.
The order left in place the Mississippi Supreme Court's rejection of Clark's ineffective-assistance claim. Sotomayor said she concurred in the denial because the case's posture did not give the justices a viable path to reach the issue, even though she described the state court's approach as problematic.
Clark's claim arose from jury selection at his capital trial. According to Sotomayor's statement, the prosecution struck Black prospective jurors at more than five times the rate of white prospective jurors and conducted special investigations into some Black prospective jurors without doing the same for similarly situated white jurors.
The Mississippi Supreme Court rejected Clark's ineffective-assistance claim under Strickland, concluding that he failed to show both deficient performance and prejudice. Sotomayor said Mississippi's prejudice analysis requires a defendant to prove not only that a properly presented Batson challenge would have succeeded, but also that the successful challenge would have changed the substantive trial outcome.
Other courts, Sotomayor wrote, ask only whether the Batson challenge would have succeeded absent counsel's deficient performance. She called Mississippi's contrary approach "almost certainly wrong," reasoning that Batson errors are treated as structural errors when raised directly and are not measured by whether the verdict would have been different.
Sotomayor also said the Mississippi rule creates a deeper Batson problem by asking defendants to argue that the composition of the jury would have changed the verdict, even though Batson rests on the premise that race is unrelated to juror fitness. She said the high court should eventually resolve the conflict and hold that Strickland does not require the type of prejudice showing Mississippi adopted.
The case, however, stopped short of presenting that question cleanly. Sotomayor noted that Strickland requires separate showings of deficient performance and prejudice, and that Clark did not argue before the justices that his trial lawyer's performance was constitutionally deficient.