In a pair of dissents, Justices Ketanji Brown Jackson and Sonia Sotomayor on Monday broke with a majority of their colleagues on the U.S. Supreme Court who declined to hear two death penalty cases.

In one case, it was alleged that a defendant's coerced confession was wrongfully admitted and prejudiced the jury. In another, prosecutors were accused of striking potential jurors because of their gender.

Dissenting from the high court's denial of review in a case involving Kurt Michaels, who was sentenced to death for the 1988 gruesome killing of his girlfriend's mother in California, Justice Jackson said the Ninth Circuit made a "legal error" when it held that Michaels' recorded confession did not harm his rights to a fair trial because other witness testimony corroborated basic facts contained in it.

After invoking his rights to remain silent under Miranda v. Arizona following his arrest, Michaels went on to give a two-and-a-half-hour confession in which he appeared to laugh as he recounted in graphic detail how he murdered JoAnn Clemons. The confession was deemed by courts to be unconstitutional, but the Ninth Circuit nonetheless found that its admission at trial was harmless error.

Justice Jackson disagreed, citing the Supreme Court's 1991 ruling in Arizona v. Fulminante holding that "a confession is like no other evidence," and as such requires special attention.

"The panel majority ignored the powerfully demonstrative nature of the confession, concluding it was harmless simply and solely because other witness testimony corroborated the basic facts that Michaels' confession asserted," she wrote.

"But the gulf between a witness saying the defendant is not remorseful and a videotape of the defendant laughing about the crime is vast," Justice Jackson said.

In her dissent, Justice Jackson said that when an unconstitutionally obtained confession is wrongly presented to a jury, Supreme Court case law requires courts to "carefully evaluate the confession as a whole," considering the amount of details in it and the effect it could have on the jury, rather than equating it to a compilation of other pieces of evidence in a case.

Justice Jackson said the Ninth Circuit panel, which was split in its decision, also ignored the potential effect on the jury of watching Michaels repeatedly laughing about disturbing details of the crime when the videotaped confession was introduced at trial.

"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," Justice Jackson wrote. "But the Fifth Amendment protects everyone, guilty and innocent alike."

Counsel for Michaels did not immediately respond to a request for comment on Monday. 

In a separate case involving Dillion Gage Compton, a 29-year-old Black man who was sentenced to death for killing a prison guard in 2016, Justice Jackson again distanced herself from the high court's majority, this time joining a dissent penned by Justice Sotomayor.

In a certiorari petition, Compton accused the state of Texas of discrimination for using 13 of its 15 peremptory strikes permitted by law to exclude women from his jury. Twenty-three of the 42 potential jurors were women, making the jury pool 55% female, but after all sides submitted their strikes, only four of the final 12 selected jurors were women — 33%.

Peremptory strikes against possible jurors based on discriminatory intent are forbidden under Supreme Court precedent going back to the 1980s.

The state in Compton's case had maintained that it struck the female jurors because of their views about the death penalty, while in fact, it had admitted men who had even less favorable opinions about it, according to the petition.

On Monday, Justice Sotomayor said the Texas Court of Criminal Appeals failed to conduct a side-by-side comparison of each struck female juror against male jurors permitted to serve, instead looking to the women's views on capital punishment as a group while checking for potential bias by the state.

"That legal error hid the best indication of discriminatory purpose," she wrote.

"A prosecutor may claim that he is striking a woman based on her hesitation to impose the death penalty," Justice Sotomayor said. "When the prosecutor fails to strike a man who has expressed even greater hesitancy, however, it indicates that the woman was struck based on unconstitutional stereotypes about women rather than objective facts."

Jennae Swiergula, an attorney with the Texas Defender Service representing Compton, told Law360 in an email Monday that the high court made a mistake in passing on her client's case.

"We are disappointed that the Supreme Court left in place a clearly flawed decision that failed to meaningfully scrutinize whether the state of Texas engaged in gender discrimination during jury selection in a capital case," Swiergula said. "As Justice Sotomayor's dissent makes clear, the evidence strongly suggests several women were struck from Mr. Compton's jury because of their gender."

Melinda Fletcher, a prosecutor with the Texas Special Prosecution Unit, or SPU, declined to comment.

"SPU believes the court's decisions speak for themselves," she told Law360 in an email.

Michaels is represented by Benjamin Lee Coleman of Benjamin L. Coleman Law PC.

Ron Davis, warden of San Quentin State Prison, is represented by Seth Matthew Friedman of the Office of the California Attorney General.

Compton is represented by Jennae Rose Swiergula of Texas Defender Service.

The State of Texas is represented by Melinda Fletcher of the Texas Special Prosecution Unit.

The cases are Kurt Michaels v. Ron Davis, Warden et al., case number 23-5038, and Dillion Gage Compton v. Texas, case number 23-5682, in the Supreme Court of the United States.

--Editing by Robert Rudinger.