Tawuan Townes may or may not have been sentenced to die in violation of the Constitution. The answer to that question can be found in an audio recording of Townes’ murder trial.

Yet this audio recording “no longer exists,” according to the trial court that presided over Townes’ conviction and death sentence. And the Supreme Court revealed on Monday that it will do nothing whatsoever about this destruction of evidence.

We learned all of these facts from a brief statement from Justice Sonia Sotomayor, which the Supreme Court released on Monday. In that statement, Sotomayor ultimately agrees that her Court should not take up Mr. Townes’ case. Nevertheless, she argues that “the trial court’s failure to preserve the original recording gives cause for deep concern.”

The specific dispute in Townes v. Alabama hinges upon a single word.

Under Alabama law, “if the jury found that Townes intended to kill” his victim, then Townes is eligible for the death penalty. If, on the other hand, Townes “lacked specific intent to kill,” then he cannot be killed by the state. The state must prove beyond a reasonable doubt that Townes intended to kill in order for him to receive a death sentence.


The original transcript of Townes’ trial shows that the judge told the jury that an intent to kill “must be inferred if the act was done deliberately and death was reasonably to be apprehended or expected as a natural and probable consequence of the act.” Faced with this transcript, a state appeals court ordered Townes’ conviction and death sentence thrown out — because the use of the word “must” effectively relieved the state of its obligation to prove that Townes acted with the intent to kill.

After this appeals court decision, however, a second court reporter listened to an audio recording of the trial, and concluded that the judge actually said the word “may” instead of “must.” Based on this new transcript, the appeals court withdrew its original order and affirmed Townes’ conviction and sentence.

So the whole case turns on this recording, which appears to have been destroyed after the second court reporter created the new transcript. Without that recording, as Sotomayor acknowledges in her statement, there is no way to determine whether Townes’ conviction violates the Constitution.

That left Sotomayor with little to do but throw her hands up in frustration. Before a defendant is convicted, the state has the burden to prove his or her guilt beyond a reasonable doubt. After conviction, however, this burden of proof typically shifts to the person who was convicted.

Thus, without the evidence he needs to prove that he was wrongfully convicted, Townes is out of luck. If courts are unable to determine who is right and who is wrong, the prosecution wins the tie.


Moreover, while the Supreme Court could conceivably prevent this situation from arising in the future — potentially by taking the Townes case and announcing a rule requiring lower courts to preserve evidence — there is little chance that this Supreme Court will do so.

Given the current Supreme Court’s hard right edge, Sotomayor has nothing to gain — and people like Townes have everything to lose — from the Court taking up this particular case.