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JACKSON, J., dissenting

SUPREME COURT OF THE UNITED STATES KURT MICHAELS v. RON DAVIS, WARDEN, ET AL. ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No. 23–5038. Decided April 15, 2024

The petition for a writ of certiorari is denied. JUSTICE JACKSON, dissenting from the denial of certio- rari. “A confession is like no other evidence.” Arizona v. Ful- minante, 499 U. S. 279, 296 (1991). It is not a mere recita- tion of facts, equivalent to a string of discrete witness state- ments or pieces of circumstantial evidence. Rather, “a full confession in which the defendant discloses the motive for and means of the crime” can also provide indelible intangi- ble information about the defendant that can have a “pro- found impact . . . upon the jury.” Ibid. Each and every man- nerism—the way the defendant speaks or laughs about a horrific act, his pauses or intonations when describing grue- some details, his gestures or body language when recount- ing his rationale—might be significant to a jury tasked with deciding his fate. Consequently, this Court has long held that courts must “exercise extreme caution” when deter- mining whether the admission at trial of an illegally ob- tained confession constitutes a harmless error. Ibid. In this capital case, the Ninth Circuit failed to exercise the required degree of caution. The divided panel assessed a 21⁄2-hour illegally obtained confession filled with disturb- ing details of a horrific crime like it was a compilation of factual information—no different from evidence introduced by other means. That was legal error. Therefore, I would grant the petition and summarily reverse the Ninth Cir- cuit’s decision as to the penalty phase, in order to facilitate a reassessment that involves the necessary rigor. 2 MICHAELS v. DAVIS

JACKSON, J., dissenting

* * * Petitioner Kurt Michaels killed JoAnn Clemmons, his girlfriend’s mother. Shortly after the killing, Michaels was arrested and questioned by the police. Officers advised Michaels of his rights under Miranda v. Arizona, 384 U. S. 436 (1966), and, in the subsequent interview, he selectively invoked his right not to answer any questions about the in- cident. But the police continued to question Michaels even after he had invoked his Miranda rights. The resulting 21⁄2- hour taped confession was admitted at both the guilt and penalty phases of his trial, and Michaels was convicted of murder and sentenced to death. There is no dispute, at this stage of the litigation, that Michaels’s constitutional rights were violated. The only question is whether the improper admission of Michaels’s confession was harmless error. This Court made crystal clear in Fulminante that, for the purpose of harmless-error analysis, wrongfully admitted confessions cannot be treated like other evidence. 499 U. S., at 296. But the panel majority did just that here; inattentive to the uniquely prej- udicial nature of confession evidence, it conducted a harm- less-error review that involved, essentially, matching up the disturbing details from the confession with discrete pieces of evidence that broadly supported similar proposi- tions, as if the confession was simply a collection of cumu- lative facts. A few examples suffice to illustrate this legal error. Throughout the 21⁄2-hour confession, Michaels described the crime in gruesome detail, with his mannerisms and callous- ness on full display. The panel majority ignored the power- fully demonstrative nature of the confession, concluding it was harmless simply and solely because other witness tes- timony corroborated the basic facts that Michaels’s confes- sion asserted. The panel nowhere considered the level of detail that Michaels provided, or the uniquely prejudicial nature of hearing him describe the crime in such specific, Cite as: 601 U. S. ____ (2024) 3

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horrific detail. See 51 F. 4th 904, 968 (CA9 2022) (Berzon, J., dissenting). Similarly, the panel discounted the poten- tial effect on the jury of watching Michaels repeatedly laughing about disturbing details of the crime when the vid- eotaped confession was unlawfully introduced. See id., at 968–969. Instead, the panel concluded that, because other witnesses had testified that Michaels showed no remorse, the wrongful admission of his striking and unsettling re- sponses did not have “a ‘substantial and injurious effect or influence’ ” on the jury. Id., at 945, 947 (quoting Brecht v. Abrahamson, 507 U. S. 619, 623 (1993)). But the gulf be- tween a witness saying the defendant is not remorseful and a videotape of the defendant laughing about the crime is vast. By treating them as identical—and not appearing to grapple at all with the qualitative difference that a taped confession makes—the majority failed to apply the harm- less-error standard properly. To be clear: The heinous nature of the crime Michaels committed was fully established at trial, and this opinion is not meant to diminish that. But the Fifth Amendment pro- tects everyone, guilty and innocent alike. I write because courts must be careful to safeguard the rights that our Con- stitution protects, even when (and perhaps especially when) evaluating errors made in cases stemming from a terrible crime. See Spano v. New York, 360 U. S. 315, 320–321 (1959) (“[L]ife and liberty can be as much endangered from illegal methods used to convict those thought to be crimi- nals as from the actual criminals themselves”). When an unconstitutionally obtained confession is wrongly presented to a jury, our case law is clear that ra- ther than treating that evidence as equivalent to a compi- lation of other, far less weighty means of proof, courts must carefully evaluate the confession as a whole: how much de- tail it contained; the tangible and intangible information it communicated; the effect of the entire confession, not just pieces of it; and how it interacted with the other evidence 4 MICHAELS v. DAVIS

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presented at trial to potentially impact the specific jury de- liberations at issue.* Because the Ninth Circuit majority disregarded this mandate with respect to assessing the pen- alty phase of this case, I would summarily reverse.

—————— *This is not to say that the introduction of an illegally obtained confes- sion can never be harmless. Here, for example, there is presently no dis- pute that the admission of Michaels’s confession was harmless as to the guilt phase of trial because the error likely did not “ ‘substantial[ly] . . . influence’ ” the jury’s guilty verdict in light of other overwhelming evi- dence of Michaels’s guilt. Brecht v. Abrahamson, 507 U. S. 619, 639 (1993) (alterations in original). Even at the penalty phase of a capital case, a short wrongfully admitted confession that contains little substan- tive or emotional information might turn out to be harmless. But the wrongful introduction of Michaels’s 21⁄2-hour graphic confession is a dif- ferent thing entirely, and its potential impact on the jury’s penalty phase deliberations needed to be properly assessed.