Sonia Sotomayor slams Supreme Court’s 'egregious error' in felony murder decision

25 April 2023

Over the years, opponents of the death penalty have been hoping that the U.S. Supreme Court would eventually declare capital punishment unconstitutional. But with the High Court having moved way to the right of where it was 30 or 40 years ago, that isn't going to happen anytime soon.

The Burger Court did temporarily halt the death penalty with its 1972 ruling in Furman v. Georgia, only to uphold it as constitutional four years later in 1976's Gregg v. Georgia. Many years later, the High Court is still grappling with the death penalty, and Justice Sonia Sotomayor was among the three dissenters in a death penalty-related decision from April 2023.

The case involves Kevin B. Burns, who was found guilty of felony murder in connection with the 1992 shootings of two people, Damon Dawson and Tracy Johnson, and sentenced to death. Burns was acquitted of premeditated murder, but the jury found him guilty of felony murder.

In Kevin B. Burns v. Tony Mays, Warden, the Supreme Court's Republican-appointed supermajority upheld Burns' death sentence. But two Democratic appointees, Elena Kagan and Ketanji Brown Jackson, joined Sotomayor in her dissent.

Law & Crime's Elura Nanos, in an article published on April 25, emphasizes that the jury never said that Burns himself actually shot Dawson or Johnson even though they agreed that Burns was part of a robbery.

"Burns' 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," Nanos explains. "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."

Nanos adds, "During the penalty phase of Burns' 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' attorneys were hoping that the High Court would invalidate his death sentence. But Nanos notes that "the Court's 6-3 majority not only refused to reverse, but it refused to even hear the case."

Sotomayor described the Court's majority decision as an "egregious error," and the dissenting opinion reads, "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."

Read Law & Crime's full report at this link.

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