The Supreme Court’s Republican-appointed majority has effectively decided to allow a man’s execution despite the jury that voted for his death potentially being misinformed. That led the court’s three Democratic appointees to call the majority’s move “disheartening,” in a dissent written by Justice Sonia Sotomayor, joined by Justices Elena Kagan and Ketanji Brown Jackson.

The case illustrates the court’s vast power not only to choose how to decide cases but whether to decide them at all, sometimes leaving grave errors undisturbed in declining review.  

The question in Kevin Burns’ case wasn’t about his guilt but his sentence. He was convicted of “felony murder” because two people were killed during a robbery in which he participated. But even though the jury didn’t have to find that he pulled the trigger to convict him, it still had to decide whether to sentence him to death — and it did, for the murder of one of the victims, Damond Dawson. It was during that penalty proceeding that Burns argues his defense was ineffective for not challenging the state’s narrative that he pulled the trigger.

In her dissent, Sotomayor explained how Burns’ legal counsel failed him in that regard:

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One of the eyewitnesses was the person who was shot, but survived. He had earlier testified at the trial of one of the codefendants that it was the codefendant who shot both him and Dawson, saying nothing about Burns. When he instead identified Burns as the shooter at Burns’ trial, counsel did not impeach him with his prior testimony, despite being aware of it. The other eyewitness, a neighbor, was prompted by defense counsel’s cross-examination to make a courtroom identification of Burns based on his appearance and the Jheri curl hairstyle he had at the time of trial. Defense counsel could have, but did not, call witnesses to testify to a critical fact: While some of the six men had Jheri curls at the time of the crime, Burns, who had very short hair then, did not.

The 6th Circuit Court of Appeals nonetheless affirmed Burns’ death sentence on what Sotomayor’s dissent described as dubious grounds. The Supreme Court majority went along, declining to summarily reverse the appeals court ruling or even review it at all.

That “failure to act,” as the dissent called it, means that Burns “now faces execution despite a very robust possibility that he did not shoot Dawson but that the jurors, acting on incomplete information, sentenced him to death because they thought he had.” Sotomayor called the court’s refusal “disheartening” because the justices have previously sided with defendants in similar situations.

“The need for action is great because Burns faces the ultimate and irrevocable penalty of death,” Sotomayor wrote for the trio. Because of the court’s refusal to act, she concluded, “the indefensible decision below will be the last for Burns.”