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DalPorto, Danielle

Case Western Reserve Social Justice 
Law Center: Reporter 
Volume 2022 Article 6 
2022 
Death by a Single Sentence 
Danielle DalPorto 
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 Part of the Civil Rights and Discrimination Commons 
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Reporter: Vol. 2022, Article 6. 
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DEATH
BY A SINGLE SENTENCE 
By Danielle DalPorto
In 1984, Victor Taylor, a 24-year-old Black man, was sentenced to death for the murder of two white teenagers in Louisville, 
Kentucky.1 His cousin and co-defendant received a life sentence.2 While the details of the crime are horrific,3 the author has 
omitted them from this analysis: One’s constitutional rights are not contingent on the severity of the crime he has allegedly 
committed. The United States Constitution is exceedingly clear on this point, containing several safeguards to protect the 
rights of criminal defendants—none of which have provided any relief for Taylor. In fact, courts have repeatedly failed to 
uphold his constitutional rights, specifically his Fourteenth Amendment right to Equal Protection under the law.4 Most 
recently, the Sixth Circuit Court of Appeals affirmed the district court’s denial of his habeas corpus claim,5 relying on a flimsy 
interpretation of a procedural technicality. Worse than that, the court’s decision essentially punishes Taylor (and his counsel) 
for being too thorough in trying to appeal his death sentence. 
Procedural History
It is impossible to analyze this case without 
the context of Batson v. Kentucky,6 which 
was decided three weeks before the trial 
court judge sentenced Taylor to death.7 In 
Batson, the Supreme Court ruled that striking 
Black members of a jury pool based on their 
race violates the Equal Protection rights 
of Black defendants under the Fourteenth 
Amendment.8 This decision overturned Swain 
v. Alabama,9 which required a defendant to 
show that the prosecutor had a systematic 
practice of excluding Black jurors from all 
criminal cases. As one of the dissenting judges 
from the Sixth Circuit points out, after Batson, 
excluding even one juror on the basis of race 
is unconstitutional.10 Taylor has maintained 
that his rights were violated under Batson 
throughout almost four decades of appeals.
Taylor I
Taylor raised a Batson claim in his first 
appeal directly to the Kentucky Supreme 
Court (Taylor I), arguing that the prosecutor 
excluded Black members of the jury pool 
because of their race.11 Specifically, he argued 
that the prosecutor violated Batson by using 
half of his peremptory strikes to eliminate 
two-thirds of potential Black jurors without 
an alternative explanation.12 The court 
summarily denied this claim and 41 others, 
choosing to expound on only two of Taylor’s 
assignments of error. It explained: “We have 
carefully reviewed all of the issues presented 
by Taylor…. Allegations of error which we 
consider to be without merit will not be 
addressed here.”13 The word “Batson” does 
not appear anywhere in the opinion. 
Taylor II
Seven years later, Taylor filed for post-
conviction relief (Taylor II) under a local 
rule that barred him from bringing claims 
already adjudicated on direct review.14 As this 
precluded him from relying on Batson, he 
argued instead that the prosecutor violated 
his Equal Protection rights under Swain.15 
To meet Swain’s higher burden of showing a 
systematic practice of discrimination, Taylor 
introduced five new pieces of evidence, 
including passages from the Kentucky 
Prosecutor’s Handbook listing jurors of the 
same race or national origin as the defendant 
as “not preferable.”16 While the dissent 
found this a clear violation of both Swain 
and Batson,17 the majority failed to address 
the issue head on. Instead, it categorized the 
claim as “an attempt to get around a long-
established rule.”18 In the Kentucky Supreme 
Court’s view, invoking Swain was an attempt 
to retry the Batson claim, which was already 
reviewed on direct appeal.19 Therefore, 
additional evidence of discriminatory 
practices was irrelevant.20
While the merits of such a narrow holding 
are debatable—to say the least—the 
court’s analysis did not stop there. It went 
on to state that even if Taylor could bring a 
Batson claim in this appeal, it would fail on 
the merits.21 Here, the majority contended 
that a successful Batson claim requires a 
showing of “other relevant circumstances” 
that create an inference that the prosecutor 
struck potential jurors on the basis of race.22 
By this logic, Taylor’s original argument—or 
any argument based solely on the number 
of peremptory strikes used on Black jurors—
could never prove a Batson violation. Once 
again, the court denied relief.23
Taylor v. Jordan
Nearly 20 years later, the Sixth Circuit Court of 
Appeals heard the case en banc, and like every 
court before it, failed to provide Taylor any 
relief.24 Somewhat surprisingly, the majority 
conceded that the Kentucky Supreme Court’s 
reasoning in Taylor II misconstrued Batson.25 
It accepted Taylor’s argument that Batson 
does not require a showing of “other relevant 
circumstances,” yet decided to ignore this 
blatant misapplication of federal law. Instead, 
the court opted to review the Batson claim 
under the brief analysis in Taylor I,26 which 
denied the claim and 41 others in a single 
sentence.27
The Reporter   x   2022 19
The standard for such summary denials is 
extremely deferential; courts need only find 
that “any fair-minded jurist” could have 
adopted an argument or theory in support of 
the claim in question.28 The majority—over 
the objections of one dissenting judge who 
found the racially-motivated jury selection 
so blatant that no fair-minded jurist could 
disagree29—ruled that this standard was 
met.30 The possible Batson violation is a 
point of contention between the majority and 
the dissenters, but because of the degree 
of deference the majority employed here, 
it is not an issue that the majority gave 
substantial weight to.
As dissenting Judge Moore argued , the 
majority did not have to ignore Taylor II in 
favor of “read[ing] tea leaves” in Taylor I.31 
Indeed, the majority could have “looked 
through” Taylor I  
to Taylor II and imputed the latter’s error to 
the former—and therefore overturn Taylor 
II based on its clear misconstrual of federal 
law—a precedent set by Wilson v. Sellers.32 
The majority rejected this argument, pointing 
out that Wilson only applies in instances 
where a court summarily affirms a lower 
court’s reasoning (as opposed to a later 
decision by the same court).33 However, as 
Moore argues, there is no reason why Wilson 
cannot apply, as it stands for the proposition 
that “courts should defer to the last related 
state-court decision that does provide a 
relevant rationale.”34 Here, the majority chose 
to evaluate what the court could have meant 
in its one sentence denial instead of what the 
same court—including a judge who joined 
both opinions35—actually said.
The dissenting opinions explain exactly how 
Taylor’s constitutional rights were violated. 
They do not note, however, the contempt 
that the majority seems to have for Taylor’s 
insistence on pursuing these rights in the 
first place. The majority opinion emphasized 
the length of his appeal several times, noting, 
almost tangentially, that his brief was 145 
pages long and included 44 claims for relief.36 
The court goes on to explain that it cannot 
blame state courts for issuing summary 
denials, especially in cases like Taylor’s, in 
which “the petitioner presented the state court 
with literally dozens of claims for relief.”37 The 
majority’s focus on the thoroughness of this 
appeal is particularly baffling here, considering 
the stakes. Yes, Taylor presented “literally 
dozens” of claims; for him, the stakes are 
literally life or death. This sort of language not 
only obfuscates the importance of carefully 
considering each claim, it also raises an 
ethical question about summary denials in 
death penalty cases. As it stands, the state of 
Kentucky derives the authority to kill Taylor 
from a one-sentence denial of relief with no 
substantive rationale behind it.
Ultimately, there were a number of avenues 
through which the Sixth Circuit Court of 
Appeals could have protected Taylor’s 
constitutional rights, saving his life in the 
process. Its failure to do so in this way—
using the strictest interpretation of a 
procedural issue—is perhaps the cruelest. 
Taylor remains on death row because of a 
state court’s decision to write only a few 
words, allowing subsequent courts to grant it 
the highest level of deference.
 1.  Taylor v. Jordan, 10 F.4th 625, 628 (6th Cir. 
2021) (en banc).
 2.  This case also involved a potential violation 
of the Confrontation Clause. The trial court 
allowed Taylor’s co-defendant’s taped testi-
mony into evidence without opportunity for 
cross-examination. Though this is an issue rife 
with injustice and worth further analysis, it is 
beyond the scope of this comment.
 3.  See Taylor, 10 F.4th at 628.
 4.  U.S. Const. amend. XIV, § 1.
 5.  Taylor, 10 F.4th at 628.
 6.  476 U.S. 79 (1986). 
 7.  Taylor, 10 F.4th at 631.
 8.  Batson 476 U.S. at 86.
 9.  380 U.S. 202 (1965).
 10.  Taylor 10 F.4th at 622 (White, J., dissenting). 
 11.  Id. at 631.
 12.  Id. 
 13.  Taylor v. Commonwealth, 821 S.W.2d 72,73 
(Ky.1990).
 14.  Ky. Rule Crim. Proc. 11.42.
 15.  Taylor v. Commonwealth, 63 S.W.3d 151, 156 
(Ky. 2001).
 16.  Id. at 171.
 17.  Id. at 172.
 18.  Id. at 157.
 19.  Id.
 20.  Id.
 21.  Id. at 156.
 22.  Id. at 157.
 23.  Id.
 24.  Taylor 10 F.4th at 628.
 25.  Id. at 633.
 26.  Id. 
 27.  See supra note 13.
 28.  28 U.S.C.§2254(d)(1).
 29.  Taylor 10 F.4th at 646 (Cole, J., dissenting).
 30.  Id. at 636.
 31.  Id. at 642 (Moore, J., dissenting).
 32.  138 S. Ct. 1188 (2018). 
 33.  Taylor 10 F.4th at 633.
 34.  Id. at 643 (Moore, J., dissenting).
 35.  Id. at 634.
 36.  Id. at 631.
 37.  Id. at 632.
20  x  Case Western Reserve University School of Law   x   Social Justice Law Center


Death by a Single Sentence

Trecasa, Beth

1
Message from the Editor
Beth Trecasa
Acting Director,  
Inamori International Center for Ethics and Excellence,  
Case Western Reserve University
Individual Ethical Leadership, Responsible Global Citizenship
In this shared world where pandemic pressures persist, historic challenges 
remain, and new battles begin, there is a tension between returning to life 
at another time and adapting to current realities. We pull each other in 
opposing directions because despite our differences and distances, we are 
still connected, locally and globally. 
The past two years have made our interconnectedness particularly, and 
sometimes painfully, clear. At our best, human connection and collective 
action create not only positive change, but unfathomable progress, solu-
tions, and even cures. However, in far too many ways, these same tools 
cause catastrophic regression. At our worst, we incite violence and enact 
unjust wars. We continue methods and systems of oppression and call them 
traditions.
Many turn to local and global leadership for direction, for resources, 
and for refuge. They should. And thankfully, some will be able to answer 
that call. When other leaders, or worse systems of justice and safety, falter 
or fail, it is the everyday efforts of ethical people that not only keep us all 
moving forward, but also restore hope in a way that only humanity can. 
Showing and receiving empathy. Seeing the inherent worth and dignity 
in every person and being seen. Doing the most responsible thing possible 
and experiencing the benefit of someone else’s good choice. Thoughtful 
efforts and intentional actions. Everyday ethics can also be contagious. We 
are inspired by neighbors helping neighbors, strangers supporting strang-
ers. We are better when we consider the well-being of not only those we 
know, but also those we will never meet. We are better when we think 
globally and act locally. Because ultimately, for better or worse, we are all 
co-inhabitants of the same shared world.
While systems of injustice endure, or just crumble slowly, everyday efforts 
of ethical people remind us that justice and equity are still possible, even 
The International Journal of Ethical Leadership   Summer 2022 2
if not always immediate. Individual ethical leadership grows into positive 
collective action, into social justice, and eventually systemic change. At 
our best, we pull each other up and forward because despite our differences 
and distances, we are still connected, locally and globally. 
For the past ten years, The International Journal of Ethical Leadership has 
strived to contribute to the interdisciplinary, international conversation 
on what ethical leadership requires, but also what ethical leadership can 
do. Ethics requires genuine efforts toward justice and equity because this 
gives every person their best chance to flourish. Ethics gives our shared 
world a chance to flourish. 
In this ninth volume, our contributors and contributions come to us from 
Africa, Argentina, Australia, Turkey, and the United States and collectively 
cover a range of perspectives from emerging students to esteemed faculty 
and distinguished practitioners. This volume is dedicated to our authors; 
my trusted advisors; and ethical people who contribute to positive human 
progress every day by striving to make good choices for themselves and for 
their local and global neighbors. Frankly, I’m rooting for us all.


Message from the Editor

Volume 46 (2022)

Canada-United States Law Journal 
Volume 46 Issue 1 Article 1 
2022 
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