U.S. Supreme Court Justices Ketanji Brown Jackson and Sonia Sotomayor dissented Monday from the other justices' refusal to review a case in which a defendant and his counsel were excluded from attending initial juror qualification in his capital murder case, calling the circumstances "significant and certworthy."

Justice Sotomayor joined Justice Jackson's dissent from a denial of certiorari in the case of Gustavo Tijerina Sandoval, who argued that the exclusion violated his Sixth Amendment and Fourteenth Amendment rights in a 2018 trial. Tijerina Sandoval was charged for the murder of an off-duty Border Patrol agent.

"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," Justice Jackson wrote. She added that believes defendants have the right to attend these proceedings.

A Texas judge called three special venire panels specifically for Tijerina Sandoval's case during the first half of 2018, but did not allow him or his counsel to attend the bulk of the dismissal discussions involving hundreds of jury candidates.

"Tijerina Sandoval was not present for any of those qualification hearings. Moreover, most 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," Justice Jackson wrote.

The Supreme Court has previously ruled that voir dire, the preliminary questioning of prospective jurors' impartiality, is a substantive part of trial and so falls under the constitutional provisions that require a defendant to be able to attend their proceedings, Justice Jackson noted. However, the high court has also "distinguished between voir dire and a mere 'administrative empanelment process' that occurs before jurors have been assigned to a case or told anything about it," the justice also said.

In Tijerina Sandoval's case, jurors were told precisely which case they were being called for and were given various details about the case. They had the opportunity to "react to that case-related information in the context of the court's assessment of their qualifications and ability to serve," according to the dissent.

"Texas' special venire hearings thus shared many of the key qualities that make the defendant's presence at voir dire proceedings constitutionally indispensable," Justice Jackson said.

Though little from these proceedings was recorded, there was one exchange in which a venire panel member said, "In this case, I feel uncomfortable."

"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," Justice Jackson wrote.

Nor was his lawyer, according to Tijerina Sandoval's September 2023 petition for certiorari, which was filed by his legal team at the Texas Defender Service in Austin.

Since the trial court declined to hold the proceedings on the record, they were recorded thus, according to the cert petition: "(Off the record) (Excuses/exemptions given at the bench in sotto voice off the record. Defendant, interpreter and counsel are not present.) (Off the record)."

Counsel for Tijerina Sandoval, Jennae Swiergula of Texas Defender Service, said Tuesday in a statement, "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 ... 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."

Annette Hinojosa, the district attorney for Willacy County, Texas, said in a statement that her office "stands behind the verdict and sentence and we continue to maintain the conviction and sentence were secured, while Tijerina Sandoval was afforded the due process rights he was entitled to under the law." Hinojosa also thanked the Texas Office of the Attorney General's Appellate Division for its assistance with the case.

Tijerina Sandoval is represented by Jennae Swiergula of Texas Defender Service.

The state of Texas is represented by Jefferson "Jay" Clendenin of the Office of the Attorney General of Texas.

The case is Sandoval v. Texas, case number 23–5618, in the U.S. Supreme Court.

--Editing by Covey Son.

Update: This story was updated with comments from counsel for Tijerina Sandoval and the Willacy County District Attorney's Office.