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Jackson Tries To Hold Lower Courts Accountable In Criminal Cases

In two opinions since joining the U.S. Supreme Court, Justice Ketanji Brown Jackson, with a likely ally in Justice Sonia Sotomayor, signaled that problems in death penalty and other criminal cases are where she will raise her voice to try holding other courts accountable. Jackson, joined by Sotomayor, issued her second written dissent in the capital case Johnson v. Missouri on Wednesday after the justices denied review, reports the National Law Journal. Kevin Johnson, who was 19 when he killed a police officer whom he blamed for the death of his younger brother, was executed Tuesday night. Jackson’s first opinion was Nov. 7, another dissent from a denial of review in a capital case, Chinn v. Shoop. Sotomayor joined that dissent as well. On the same day, Jackson joined Sotomayor’s dissent in Anthony v. Louisiana, a non-death penalty case involving prosecutorial misconduct in a sex trafficking case.

“I’m not surprised by Justice Jackson’s actions,” said sentencing law scholar Douglas Berman of Ohio State University. “I’ve been expecting her, like Justice Sotomayor has done as she has grown into her role, not to let any criminal case where she sees injustice pass by.” Both Jackson and Sotomayor were trial court judges, experienced in criminal trials and sentencing. They are the only former trial judges on the high court. During arguments, they are laser focused on the trial record and lower court judges’ findings of facts, and they will question attorneys closely on those findings. In the Missouri case, Jackson said the Missouri Supreme Court refused to comply with its own state law's three-step process for reviewing the integrity of a conviction. That amounted to a federal due process violation, she said. Berman says Jackson is "feeling her way through the broader, longer term. Where does the liberal side of the court pick its shots at this moment when the court is full of conservatives and who are themselves uncertain of where originalism is going to take them?”


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