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JACKSON, J., dissenting

SUPREME COURT OF THE UNITED STATES GUSTAVO TIJERINA SANDOVAL v. TEXAS ON PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS OF TEXAS No. 23–5618. Decided May 13, 2024

The petition for a writ of certiorari is denied. JUSTICE JACKSON, with whom JUSTICE SOTOMAYOR joins, dissenting from the denial of certiorari. Criminal defendants have a “fundamental righ[t]” “to personal presence at all critical stages of the trial.” Rushen v. Spain, 464 U. S. 114, 117 (1983) (per curiam). We have long held that voir dire—the moment that “represents ju- rors’ first introduction” to the facts of a case—is one such stage. Gomez v. United States, 490 U. S. 858, 873–874 (1989). In this capital case, however, the Texas Court of Criminal Appeals (TCCA) determined that a defendant had no due process right to attend “special venire” proceedings held prior to voir dire, during which a judge preevaluated potential jurors who were summonsed specifically for that case and given information about the defendant and the al- legations against him. The TCCA’s ruling raises a signifi- cant and certworthy question about whether criminal de- fendants have a due process right to be present in such circumstances. In my view, the answer is yes, and this Court should have granted the petition for certiorari to fur- nish that important holding. I Petitioner Gustavo Tijerina Sandoval was charged in Texas with capital murder. Under Texas law, prospective jurors are typically first assembled into a general, non-case- specific jury pool; only after members of that pool are indi- vidually qualified for service based on certain statutory cri- teria are they then assigned to specific cases for voir dire. 2 SANDOVAL v. TEXAS

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See Jasper v. State, 61 S. W. 3d 413, 422–423 (Tex. Crim. App. 2001). In capital cases, however, Texas trial courts may summon a “special venire”—a panel of prospective ju- rors who are called for a particular trial. Tex. Code Crim. Proc. Ann., Art. 34.01 (Vernon 2006). That is what happened here. Prospective jurors were mailed a summons along with a detailed questionnaire that included case-specific information such as the parties’ iden- tities, the facts of the alleged offense, and the State’s inten- tion to seek the death penalty. From February to May 2018, the trial court then summonsed three special venires to prequalify potential jurors for this case. During those pro- ceedings, the judge explained the statutory prerequisites for jury service and described grounds for exemption from service. She also had colloquies with the potential jurors and disqualified many of them. Tijerina Sandoval was not present for any of those quali- fication hearings. 665 S. W. 3d 496, 509–510 (Tex. Crim. App. 2022). Moreover, most of the exchanges between the prospective jurors and the court troublingly took place en- tirely off the record, without any recording or transcription, leaving little trace of what was said, who was excused, or why. Id., at 510. After being subsequently tried and convicted, Tijerina Sandoval maintained on appeal that it was legal error for the trial court to hold the special venire qualification pro- ceedings outside of his presence. Id., at 511. But the TCCA disagreed, concluding that “[w]hether the prospective juror is assigned first to the central jury room or to a special ve- nire, a preliminary inquiry into his general qualifications, excuses, and exemptions is not the sort of proceeding that needs to be conducted in the defendant’s presence” in order to comport with due process. Id., at 511–512. Cite as: 601 U. S. ____ (2024) 3

JACKSON, J., dissenting

II The TCCA’s categorical distinction between a “prelimi- nary inquiry” into juror qualifications in the context of a special venire, on the one hand, and standard voir dire pro- ceedings, on the other, stands in deep tension with a crimi- nal defendant’s “right to personal presence at all critical stages of the trial.” Rushen, 464 U. S., at 117; see United States v. Gagnon, 470 U. S. 522, 526 (1985) (per curiam). The baseline is well established: A “defendant has a due process right to be present at a proceeding ‘whenever his presence has a relation, reasonably substantial, to the ful- ness of his opportunity to defend against the charge.’ ” Id., at 526 (quoting Snyder v. Massachusetts, 291 U. S. 97, 105– 106 (1934)). This Court has also already determined that voir dire proceedings qualify as such a moment. Gomez, 490 U. S., at 873. Voir dire is typically the point in which prospective jurors are made privy “to the substantive fac- tual and legal issues in a case,” id., at 874, and it “is the primary means by which a court may enforce a defendant’s right to be tried by a jury free from . . . predisposition about the defendant’s culpability,” id., at 873. And, because the “atmosphere of the voir dire . . . may persist throughout the trial,” a defendant’s pretrial opportunity to “scrutinize” the “gestures and attitudes of all participants to ensure the jury’s impartiality” is essential to the fairness of the entire proceeding. Id., at 875. To be sure, we have also distinguished between voir dire and a mere “administrative empanelment process” that oc- curs before jurors have been assigned to a case or told any- thing about it on the grounds that the latter does not ordi- narily carry the same significant implications for the fairness of the trial. Id., at 874. Thus, at bottom, the legal question here is whether Texas’s “special venire” qualifica- tion sessions are sufficiently similar to standard voir dire proceedings to implicate the defendant’s due process right to be present. 4 SANDOVAL v. TEXAS

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I believe that they are. Just as with voir dire, “a fair and just hearing would be thwarted by” a defendant’s absence from the special venire proceedings. Snyder, 291 U. S., at 108. 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 pen- alty—critical facts about this case in particular. Then, on the day they were brought in for questioning, the prospec- tive jurors came before the judge, where they could react to that case-related information in the context of the court’s assessment of their qualifications and ability to serve. Texas’s special venire hearings thus shared many of the key qualities that make the defendant’s presence at voir dire proceedings constitutionally indispensable. See Gomez, 490 U. S., at 873–875. Moreover, given this reality, it is simply not the case that Tijerina Sandoval “could have done nothing” and would not “have gained anything by attending” these special venire proceedings. Gagnon, 470 U. S., at 527. Because most of these proceedings took place off the record, there is no full account of what was said. But what is known of the facts here plainly demonstrates why Tijerina Sandoval’s pres- ence might have mattered. In one of the few transcribed special venire exchanges, one prospective juror stated: “In this case, I feel uncomfort- able.” 50 Reporter’s Record in No. AP–77,081 (Tex. Crim. App.), p. 20. It is entirely possible that that particular juror was predisposed to look unfavorably at the facts of the case or at Tijerina Sandoval himself. But the defense could not follow up on that comment, since Tijerina Sandoval was not present for those prequalification proceedings and was thus presumably unaware of that remark. There is no evidence that the trial court informed Tijerina Sandoval of this panel member’s comment before voir dire. Nor is it clear whether that juror was ever asked to explain the reasons for the Cite as: 601 U. S. ____ (2024) 5

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stated discomfort, either during the special venire proceed- ings or subsequently during voir dire. It is also indisputa- ble that a prospective juror’s discomfort “[i]n this case” is the kind of information that defense counsel would have probed at length in subsequent questioning, because such an inquiry might result in the juror’s disqualification for cause—saving the defendant a valuable peremptory strike. The fact that Texas’s special venire process is available only in capital cases, which often receive abnormally exten- sive media coverage, makes matters worse. In those cir- cumstances, 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 de- fendant’s culpability” at the earliest opportunity—i.e., dur- ing the special venire proceedings. Gomez, 490 U. S., at 873. Again, this case further illustrates the point. During Ti- jerina Sandoval’s trial, the judge expressly noted that “the media has had [this case] publicized so much.” 58 Re- porter’s Record in No. AP–77,081 (Tex. Crim. App.), p. 35. And, indeed, some of the prospective jurors disclosed on their questionnaires that they had seen media coverage about the case. That pretrial coverage was often highly prejudicial, suggesting, for instance, that Tijerina Sandoval might have been associated with Mexican cartels. Yet, Ti- jerina Sandoval was not present during the court’s initial vetting of the prospective jurors, despite their likely expo- sure to this coverage and preexisting knowledge of the case. * * * Because this Court has already recognized the due pro- cess right of a defendant to be present at voir dire, it seems to me self-evident that a defendant’s presence for the first 6 SANDOVAL v. TEXAS

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court appearance of prospective jurors assembled specifi- cally for his case likewise bears on “the fulness of his oppor- tunity to defend against the charge.” Snyder, 291 U. S., at 105–106. But here, without even the benefit of a full record of the exchanges between the trial court and prospective ju- rors, the TCCA held categorically that a defendant in Ti- jerina Sandoval’s position had no right to be present during the court’s preliminary assessment of the jury pool. 665 S. W. 3d, at 511–512. Other state and federal courts have held otherwise. They have recognized a defendant’s right to be present during preliminary proceedings where potential jurors have been exposed to the facts of a case or are subject to being excused for case-specific reasons.* For present purposes, that means the lower courts diverge as to whether a criminal defendant has a due process right to attend proceedings like the qualification hearings here. That debate involves an issue of clear constitutional and practical significance that this Court should have granted certiorari to resolve. There- fore, I respectfully dissent.

—————— *See, e.g., United States v. Bordallo, 857 F. 2d 519, 522–523 (CA9 1988) (right to presence applied in pre-voir dire proceedings where “pro- spective jurors knew which specific case they would hear, and some were excused due to factors related to” the case); State v. Irby, 170 Wash. 2d 874, 880–884, 246 P. 3d 796, 799–801 (2011) (right applied when judge exchanged email with counsel about excusing jurors, who had filled out questionnaires about that case, based on their “general qualifications” and “their fitness to serve as jurors in this particular case”); State v. Wil- son, 323 Ore. 498, 504–505, 918 P. 2d 826, 830–831 (1996) (right applied to pre-voir dire preliminary orientation during which potential jurors filled out lengthy questionnaires and were informed of the facts of the case and the parties’ identities).