Justice Ketanji Brown Jackson is showing that, like Justice Sonia Sotomayor, she cares about criminal law issues that the rest of the court can’t be bothered to address.
We got the latest proof of that when Jackson, a former public defender, joined by Sotomayor, dissented from the court’s refusal Tuesday to hear a case about plea bargaining and ineffective assistance of counsel.
Jackson’s dissent came in the case of Quartavious Davis, who wanted the court to hear his claim that he was denied effective counsel because his lawyer failed to initiate plea negotiations with prosecutors. The issue that his case raised is how a defendant shows that he’s “prejudiced” or harmed by his lawyer’s failure, because people need to show not only that their lawyers performed deficiently but that they were harmed by that deficiency.
Jackson, a Biden appointee, noted in her dissent that lower courts appear to be split on the question, meaning it’s one that the Supreme Court could have resolved but chose not to. She said that the 11th Circuit Court of Appeals “gave short shrift” to Davis’ claim while applying “a bright-line rule that prejudice cannot be shown in the absence of a plea offer.”
Referring to Davis’ appeal, Jackson said, “This petition presents the Court with a clear opportunity to resolve a Circuit split regarding whether having an actual plea offer is an indispensable prerequisite to making the necessary showing of prejudice.” It’s unfortunate that at least four justices — the number required to grant review of a petition — aren’t willing to sort out these and other important criminal issues. But it’s heartening that Jackson, like Sotomayor, is willing to call her colleagues’ — and our — attention to them.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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