By the beginning of December, the Court had added five cases of criminal interest to its docket, infra. Justice Sotomayor concurred in the denial of a stay of execution and cert in Crutsinger v. Davis, No. 19-5755 (Sept. 4, 2019), but wrote separately on the question whether a change in decisional law alone might constitute an extraordinary circumstance that would justify reopening a case under Federal Rule of Civil Procedure 60(b)(6). Cert was denied in Sparks v. Davis, No. 18-9227 (Sept. 25, 2019), where a bailiff had worn a black tie embroidered with a white syringe on the day the jurors were to begin punishment deliberations in a capital murder trial. Justice Sotomayor agreed with the denial of cert because the judge, after a hearing, did not find sufficient evidence that the jury had seen the tie. She observed, however, that presiding judges, in the future, should remove similar offending items or the officer from the jury’s presence to ensure the dignity of the judicial proceedings. In a case challenging the proposed resumption of federal executions under a new Bureau of Prisons protocol, the Court denied the government’s application for a stay or vacatur of the district court’s preliminary order enjoining the executions, with the expectation that the court of appeals (which had declined to stay the preliminary injunction pending appeal) would “render its decision with appropriate dispatch.” Barr v. Roane, No. 19A615 (Dec. 6, 2019). Justice Alito, joined by Justices Gorsuch and Kavanaugh, wrote separately, suggesting that the court of appeals should be able to decide the case within 60 days.
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