Left: U.S. Supreme Court Justice Ketanji Brown Jackson (AP Photo/J. Scott Applewhite); Right:, Gustavo Tijerina Sandoval (image via Texas Department of Criminal Justice).
The Supreme Court decided Monday that it would not hear the appeal of a man convicted of the capital murder of an off-duty Border Patrol officer who was kept out of the courtroom during part of jury selection.
Gustavo Tijerina Sandoval asked the justices to rule on whether his constitutional rights were violated when the Texas judge who presided over his case allowed multiple rounds of jury selection to proceed without Sandoval or his attorney being present.
Sandoval was found guilty of the 2014 shooting death of Javier Vega Jr. while Vega, a former Marine, had been on a fishing trip with his family in South Texas. Sandoval and an accomplice attempted to rob the family at gunpoint, then shot Vega in the chest when Vega pulled out a weapon. Vega’s father, Javier Vega, Sr., was also shot in the hip, but survived his injuries.
The case and Sandoval’s status as a Mexican national who had previously been arrested and deported multiple times for illegally entering the United States garnered significant media attention. Ultimately, Sandoval was found guilty and sentenced to death.
Sandoval appealed his conviction on the grounds that his constitutional right to presence was violated when potential jurors were summoned without the defendant or his counsel being present.
Typically, in Texas, jurors are summoned as a large group that can be used for any case. However, Texas permits prospective jurors in capital cases to be summoned via “special venire” panel — meaning that they are called specifically for the capital case.
The Sandoval jurors were mailed a summons and a detailed questionnaire that contained details about the case, such as the basic facts, Sandoval’s name, and Texas’s intent to seek the death penalty.
Texas District Judge Migdalia Lopez called three special venire panels to prequalify jurors for the case and during the panels, the judge discussed various grounds for exemption from jury service with the panels. Lopez also questioned jurors and disqualified many of them. In Sandoval’s court filings, his counsel noted that while questioning all three panels, the judge inaccurately stated at least one of Texas’s grounds for excusing individuals from jury service.
In a dissent from the justices’ certiorari denial, Justice Ketanji Brown Jackson, joined by Justice Sonia Sotomayor, said she would have heard Sandoval’s appeal as it would have been an important opportunity for the Court to settle a matter that has split the circuits.
In her dissent, Jackson called out the trial court not only for dismissing jurors without the defendant being present, but also for leaving sparse records for the decisions to do so.
“[M]ost of the exchanges between the prospective jurors and the court troublingly took place entirely off the record, without any recording or transcription, leaving little trace of what was said, who was excused, or why,” Jackson wrote.
Jackson continued, quoting from precedent that a criminal defendant has a clear due process right to be present at a proceeding “whenever his presence has a relation, reasonably substantial, to the fulness of his opportunity to defend against the charge.”
Jackson said that the voir dire process is important in that it allows defendants to scrutinize prospective jurors’ gestures and attitudes in order to assess whether they are free from bias. Jackson also said that Texas’s “special venire” process is enough like the standard voir dire portion of a trial that it too would trigger a defendant’s due process right to be present.
The justice also noted that before coming in for questioning by the judge, jurors were already given key information about Sandoval’s case.
“To start, even before they arrived at the courthouse, the potential jurors in this case had already been informed of the parties’ identities, the allegations against Tijerina Sandoval, and the fact that the State sought the death penalty — critical facts about this case in particular,” Jackson said.
The special venire proceedings “shared many of the key qualities that make the defendant’s presence at voir dire proceedings constitutionally indispensable,” the justice wrote. She also dismissed any suggestion that Sandoval “could have done nothing” during the proceedings or “would not ‘have gained anything by attending'” them.
Jackson said that while a full record of what occurred during the proceedings is missing, what is known of the facts “plainly demonstrates” that Sandoval should have been present. For example, she said that one potential juror said that they felt “uncomfortable” serving on the case, but it was unclear whether the statement referred to the case’s facts or to Sandoval himself.
Jackson called into question the legality of Texas’s exclusion of defendants during the special venire panels generally:
The fact that Texas’s special venire process is available only in capital cases, which often receive abnormally extensive media coverage, makes matters worse. In those circumstances, it is all the more likely that those prospective jurors who are called for a special venire prequalification process may have seen reporting on the case and formed opinions before trial. Such media coverage might also lead prospective jurors to reveal a “predisposition about the defendant’s culpability” at the earliest opportunity — i.e., during the special venire proceedings.
Jackson said that some jurors disclosed on their questionnaires that they had seen pretrial coverage of Sandoval’s case that suggested the defendant might be associated with Mexican cartels. Given the importance of the defendant’s presence during such a proceeding, Jackson argued that the Court should have granted certiorari to settle the split among the circuits as to whether excluding defendants in Sandoval’s position was a constitutional violation.
In an email to Law&Crime Monday, Sandoval’s attorney, Jennae Swiergula, said the following:
Defendants have a constitutional right to be present for all critical stages of their trials, including jury selection. Nowhere is that more important than in cases where the State is seeking the death penalty. We are disappointed that the Supreme Court decided not to take up Mr. Tijerina Sandoval’s case and instead left in place a Texas Court of Criminal Appeals decision which allows Texas courts to proceed with a portion of jury selection in a defendant’s absence in capital cases. As Justice Jackson’s dissent makes clear, for a defendant’s trial to be fair, they must be a full participant in the process of selecting who will be on their jury.
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